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Mr. Hogg: There are at least two disadvantages to the Home Secretary's argument. First, the courts may be required to give a strained meaning to language, and that in principle is not a good thing. Secondly, if they give a strained meaning to language in the context of this legislation, it could serve as a precedent that reads across and guides courts in their interpretation of language that is wholly outwith the statute under discussion.

Mr. Straw: The right hon. and learned Gentleman is right on his second point. The legal section of the House of Commons Library, like any other law library, has wonderful tomes--of which, no doubt, the right hon. and learned Gentleman has made good use, as I did in my brief practice--of words and phrases judicially interpreted. Of course interpretation by one of the higher courts of a particular word will read across into many other circumstances, often anticipated. That is why, as the right hon. and learned Gentleman knows better than I do, parliamentary counsel is so keen on one word rather than another.

I am not convinced, however, by the right hon. and learned Gentleman's first point that the courts will contort the meaning of words until they lose their meaning altogether. In many cases, particularly in respect of statutory interpretation, the whole task of the court is not to make up the law, but to say what it means where that is not clear or where its application in particular circumstances is not clear. The courts are well versed in the interpretation of the law and of Parliament's intention.

Let me say in reply to a point made by the hon. Member for Maidenhead that there was a time when all the courts could do to divine the intention of Parliament was to apply themselves to the words on the face of any Act. Now, following Pepper v. Hart, they are able to look behind that and, not least, to look at the words used by Ministers. I do not think the courts will need to apply themselves to the words that I am about to use, but, for the avoidance of doubt, I will say that it is not our intention that the courts, in applying what is now clause 3, should contort the meaning of words to produce implausible or incredible meanings. I am talking about plain words in what is actually a clear Bill with plain language--with the intention of Parliament set out in Hansard, should the courts wish to refer to it.

Mr. Grieve: Perhaps the clause should say "possible and reasonable", but the right hon. Gentleman might then say that the courts are always supposed to be reasonable, so it is not necessary to include that word.

Mr. Straw: Ever since the Wednesbury decision, the courts have chided others for being unreasonable, so it is difficult to imagine them not being reasonable. If we had used just the word "reasonable", we would have created a subjective test. "Possible" is different. It means,

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"What is the possible interpretation? Let us look at this set of words and the possible interpretations." My bet is--without putting this in the Bill--

Mr. Clappison: How much?

Mr. Straw: More than I have placed on a horse in the Derby, but the amount remains a matter between me and my bookmaker.

My bet is that the courts will say that they will adopt a reasonable approach. As the hon. Member for Beaconsfield (Mr. Grieve) said, they would be the last to admit to adopting an unreasonable approach. I am comfortable with the words in the Bill and I do not believe that the courts will contort them in the way that hon. Members implied.

I come back to the point about parliamentary sovereignty. If the higher courts come up with an interpretation that makes the intention of Parliament risible and means that legislation is applied in a way that is unreasonable and has ridiculous results, it is open to the House to change the decision. For example, in the Crime and Disorder Bill we are overturning the decision of the court in Regina v. Khan--

Mr. Clappison: No, you are not.

Mr. Straw: With great respect, we are; we are abolishing the concept of doli incapax--[Interruption.] I hope that we are overturning Khan, but I will not go any further into that--[Interruption.] It is open to the House--it is its ultimate right--to change a decision.

My hon. Friend the Member for Wellingborough (Mr. Stinchcombe) asked which of the academics I backed. I back those who have read the plain words in this clause and take the view that it moves us on from the way in which the courts currently interpret convention legislation. Hon. Members should feel reassured by the fact that our courts have had quite a lot of experience in interpreting the convention. Where there is ambiguity, they come down on the side of the convention.

Just before the general election, I amused myself by reading The Times law reports. I try to do that most days. There was a very technical report about the interpretation of a contract. To resolve the issue, the Court of Appeal had wisely looked at the European convention--this was a long time before there was any prospect of its being incorporated--to help it to form a view. The courts have experience. We are moving forward, and we intend to ensure, as the wording makes clear, that, in so far as it is possible, primary and subordinate legislation is read and given effect in a way that is compatible with convention rights.

I think that I have dealt with most of the points raised. In conclusion, I want to deal with new clause 8. It would require the courts, in considering whether legislation was compatible with convention rights, to have full regard to the margin of appreciation accorded to states by Strasbourg institutions. Presumably that is intended to signal to the courts that they should recognise the primary responsibility of Governments for detailed decisions on how convention rights are given effect in domestic law.

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The doctrine of the margin of appreciation--it is an important one--recognises that a state is allowed a certain measure of discretion, subject to European supervision, when it takes legislative, judicial or administrative action in respect of some convention rights. In other words, it is best placed to decide in the first place whether--and, if so, what--action is required.

My first point about the margin of appreciation is that it is more relevant to some convention rights than to others. It is especially relevant to articles 8 to 11, which enable restrictions to be placed on rights where that is necessary in a democratic society, for any one of a number of reasons. It is less relevant to some of the other articles, for example, article 2 on the right to life, and article 3 on the prohibition on torture or inhuman and degrading treatment or punishment.

7.15 pm

The doctrine of the margin of appreciation means allowing this country a margin of appreciation when it interprets our law and the actions of our Governments in an international court, perhaps the European Court of Human Rights. Through incorporation we are giving a profound margin of appreciation to British courts to interpret the convention in accordance with British jurisprudence as well as European jurisprudence.

One of the frustrations of non-incorporation has been that our own judges--for whom I have a high regard, as, I believe, do Opposition Members--have not been able to bring their intellectual skills and our great tradition of common law to bear on the development of European convention jurisprudence.

Mr. Grieve: I agree with every word that the right hon. Gentleman has said on this matter. It is why I favour incorporation. However, it is interesting to note that, although that is clearly the intention--and I believe will be the result--this Bill is statute, not common, law. Where does it spell out to the judiciary that the margin of appreciation is available to it in the way that it interprets the Bill? This is an interesting point and I would welcome the right hon. Gentleman's comments on it. We may have implied that that is what the courts should do, but where is that stated in the Bill?

Mr. Straw: The margin of appreciation is laid down in many commission and court judgments. Therefore, it is spelt out in the meaning of clause 2. That is the direct answer to the hon. Gentleman's point. In addition, and as the financial memorandum makes clear, we will spend £5 million on judicial training. I am not making a trivial point. A great deal of time, effort and money will go into the training of the judiciary. I know from my contacts with senior members of the judiciary that they are already alive to the need to bring themselves up to speed on this important development of our law.

Mr. Hogg: Is it the right hon. Gentleman's view that the British courts should be very slow to find that, where Parliament has expressly dealt with an issue involving convention rights, the decision of Parliament is a derogation, a departure or a diminution of convention rights? The working assumption should be that, when Parliament has addressed a matter, it has not derogated

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from convention rights. If that is the approach that the courts should adopt, would it not be helpful to put that concept--perhaps differently expressed--in the Bill?

Mr. Straw: We are working that matter not only into the drafting of future legislation, but into the presentation of Bills by Ministers. That is the purpose of clause 19. When a Bill comes before Parliament, the Minister will give Parliament his best view, based on advice from officials and, above all, parliamentary counsel, on whether it is compatible with the convention.

That was the practice for some time under the previous Conservative Administration. I think that it would be impossible to say that all legislation, of whatever antiquity, was passed in a manner compatible with the convention. It is, by definition, impossible to say that of legislation passed before the convention was even a gleam in the eye of a former Conservative Lord Chancellor.

It took some decades before the House, our courts and the parliamentary draftsmen became sensitised to the need to ensure compatibility. It was not until the changes of 1966, allowing individual petition to the European Commission, that Governments began to take on board the need for compatibility in the way in which they went about their daily business and in the drafting of Bills. That is my answer to the right hon. and learned Member for Sleaford and North Hykeham.


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