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Mr. Grieve: I understand the hon. Gentleman's point but, like my right hon. and learned Friend the Member for
Sleaford and North Hykeham (Mr. Hogg), I want to know whether the construction of those words will force courts into making artificial interpretations. Would it not be better for the courts to tell Parliament that primary or subordinate legislation was incompatible with the convention than--as might happen under the current wording--to do painful gymnastic exercises to make existing legislation fit convention principles when it cannot?
Mr. Stinchcombe: I appreciate the hon. Gentleman's argument, but I reject it--I shall invite my right hon. Friend the Home Secretary to confirm that clause 3(1) was constructed in accordance with paragraphs 2.7 and 2.8 of the White Paper precisely to avoid such problems.
Hon. Members may know that there has been some academic discussion about the opening words of the clause. Sir William Wade, who is a member of the chambers of which I was a member before I came to the House, and the hon. Michael Beloff, who is head of those chambers, have publicly disagreed in academic articles and speeches about the meaning of the words. It is now a perfectly appropriate time, given Pepper v. Hart, for my right hon. Friend the Home Secretary to resolve the matter once and for all. We must make it clear that the words in clause 3(1) mean what they say and what we said that they meant in paragraph 2.7 of the White Paper--the words go beyond the present rule and, wherever any interpretation of legislation can be made so as to uphold convention rights, that is what the courts must be invited to do.
Mr. Swayne:
I hope that the Home Secretary will confirm, as the hon. Member for Wellingborough (Mr. Stinchcombe) requested, that that is the plain meaning of the words. I fear that the courts will avoid the clear parliamentary intention of legislation and do the gymnastics that my hon. Friend the Member for Beaconsfield (Mr. Grieve) described to accommodate the word "possible"; I fear that they will place a construction on legislation to make it compatible with the convention when it clearly is not, so circumventing the proper remedy in the Bill, which is to bring the matter back to Parliament.
Mr. Straw:
This has been a short, but interesting, debate on one of the most fundamental issues about the method that we have chosen to incorporate the European convention on human rights in British law. As hon. Members from both sides of the Chamber will understand, there was considerable debate inside the Labour party and between the Labour party and the Liberal Democrats before the election, and much consideration by the Government after the election, about the form that incorporation should take.
As the White Paper makes clear, we considered how other common law countries had incorporated Bills of Rights. We examined how Canada and New Zealand--both outside the continent of Europe--had dealt with similar issues and whether a Bill of Rights could appropriately be entrenched as a basic and fundamental law with a higher status than the law passed by their Parliaments. We decided to reject Canada's approach, which was, in effect, to establish a fundamental law that, in certain circumstances, took precedence over laws
passed by its Parliament. We also considered the New Zealand model. We came up with our own approach--it is a British answer to a British problem--fundamental to which is the sovereignty and supremacy of Parliament.
I have never believed--my colleagues share this view--that it would be sensible in this country to have a supreme court that could override the will of Parliament. Indeed, such a system would be extremely dangerous without a written or codified constitution or--as applies in the United States and almost all other constitutions--the mechanisms to override the fundamental law as laid down by a supreme court.
It would mean that judges in a British supreme court would be accorded more power than is, in practice, accorded to US Supreme Court judges, whose decisions can, in the final analysis, be overridden by the popular will through an amendment to the constitution--without such a facility to override judges who are unelected or who were elected many years before, the democratic processes cannot operate effectively.
For that reason, we decided that, while of course the courts would have clear powers to apply the European convention--without that, we would not be bringing rights home--ultimately Parliament's will would prevail. We have applied that in a number of ways which I shall place on record before answering the specific points that have been raised by hon. Members on both sides of the Chamber.
Clause 19 requires a Minister introducing a new measure to
Nothing could be more compatible with the sovereignty of Parliament than the fact that the Bill incorporating the convention on human rights refers to the possibility--that may happen week by week--that Ministers have to apply it to future legislation. That is not to say that they have to force future Bills into the apparent straitjacket of the convention; they simply have to make a statement to the House on whether a measure is compatible with the European convention, and therefore with the Bill.
Obviously, it will be incumbent on Ministers--certainly under the present Administration--to do their best to ensure that Bills are compatible with the convention. Indeed, that practice was followed for many years by the previous Administration. They also subscribed to decent human rights, and for the practical reason that, if Bills were introduced that were knowingly incompatible with the convention, the Government could easily end up in trouble, if not with United Kingdom courts, with the European Court of Human Rights, which in practice has a facility to override Parliament so long as Parliament decides to accede to the convention. That is the first way in which we respect the sovereignty of the House.
The second is through clause 3, which is very clear. I should let the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) know that we will go on to discussing its detailed wording--it was easier to refer to his constituency when he represented the former Prime Minister's home town, which was not such a mouthful.
Clause 3(1) states:
Mr. Hogg:
The Home Secretary has been making the point that, in this context, the Government are keen not to undermine parliamentary sovereignty. Does he understand that Opposition Members who have studied the argument would have much greater confidence in that approach had he not adopted the remedial order procedure set out in the Bill, which provides for affirmative resolutions for changing primary legislation? We would feel very much happier if he gave sympathetic consideration to amendment No. 64 to clause 10. We would then have much greater confidence in his assertion that he is not seeking to undermine parliamentary sovereignty.
Mr. Straw:
The right hon. and learned Gentleman raises an important point that he also made on Second Reading. I have been considering it, but I shall make no promises, except to say that I found it a cogent argument. It is by no means the only occasion on which the right hon. and learned Gentleman has made a cogent argument, and I listened to him with great care. We shall discuss the matter in more detail when we reach clause 10, but our intention is that the procedure under clause 10 should be used not to bypass the will of the House, but simply to deal with practical problems that may arise. I hope to provide the right hon. and learned Gentleman with a satisfactory explanation when we reach clause 10 and, if I cannot, I shall take further account of his remarks.
Even on the most dismal interpretation of clause 10, the will of the House still prevails. It may be a truncated procedure, but it certainly does not give the courts the power to say what the law of the land should be. We are seeking to provide a truncated procedure with rather more care than the previous Administration took with the famous Henry VIII clauses on deregulation, for example.
I shall now respond to some of the specific points that have been raised during the debate, although I hope that Opposition Members will accept that I have dealt with the gravamen of their points in some detail.
Amendment No. 9 would require legislation to be construed in accordance with convention rights so far as it is "reasonable" to do so, rather than so far as it is "possible" to do so. The likely result--and no doubt the intention--is that the courts would not go so far down the road of interpreting legislation as they would under the terms of clause 3 as it stands.
"make a statement to the effect that in his view the provisions of the legislation are or are not compatible with the Convention rights"
or say that he is unable to make such a statement.
7 pm
"So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way that is compatible with the Convention rights."
Subsection (2)(b) makes it absolutely clear that
"This section . . . does not affect the validity, continuing operation or enforcement of any incompatible primary legislation".
The issue of incompatibility of legislation can be addressed only by the higher courts. I should explain to the hon. Member for Maidenhead (Mrs. May) that no group of senior judges looking at the clause will come to any other view but that the intention of Parliament is that there may be legislation that is incompatible with the convention--either in future or previously--and, that even if it is found to be incompatible, it will remain in force unless and until the House, by accelerated or normal procedure, decides otherwise.
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