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Clause 4

Declaration of Incompatibility

Mr. Garnier: I beg to move amendment No. 15, in page 3, line 7, at end insert

'setting out the nature and extent thereof in so far as arises from the nature of the case before the court'.

The Chairman of Ways and Means (Sir Alan Haselhurst): With this, it will be convenient to discuss the following amendments: No. 103, in page 3, line 7, at end insert--

'(2A) A court may not make a declaration of incompatibility unless it is necessary for the purpose of determining the matter before it.'. No. 16, in page 3, line 16, at end insert
'setting out the nature and extent thereof in so far as arises from the nature of the case before the court'.

Mr. Garnier: We believe that clause 4 represents a collision point in the constitution. It does not merely represent a meeting between the supervisory code on human rights that we gain from the convention and the doctrine of parliamentary sovereignty; it represents a meeting between the powers of the courts and this place to instigate a parliamentary process of statutory change. Clause 4 empowers the courts--as defined in subsection (5)--to declare that primary legislation is incompatible with a convention right.

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Clause 4 should be read in conjunction with clause 21, which defines primary legislation. According to that clause, "primary legislation" means any

    "public general Act . . . local and personal Act . . . private Act . . . Measure of the Church Assembly . . . Measure of the General Synod of the Church of England . . . Order in Council made under . . . the Northern Ireland Constitution Act 1973 . . . Order in Council made in exercise of Her Majesty's Royal Prerogative . . . and includes an order or other instrument made under primary legislation to the extent to which it operates to bring one or more provisions of that legislation into force or amends any primary legislation". Subordinate legislation is also defined in clause 21, and was referred to in an earlier debate.

8.15 pm

Mr. Gerald Howarth: My hon. and learned Friend has listed the measures that would be caught by the description "primary legislation". Will he tell us whether the matter has been debated by the General Synod, whether its views have been sought and whether they have been referred to the House? Surely that is a material issue, as the new law will apply to the whole body of law passed by the General Synod of the established Church.

Mr. Garnier: My hon. Friend is right: that is a material question. Sadly, I do not know the answer, but other hon. Members who are past or present members of the General Synod may be able to help us.

Mr. John Gummer (Suffolk, Coastal): Will my hon. and learned Friend take this a stage further? Normally, matters pertaining to the Church of England that are to be debated in the House of Commons are brought before the Ecclesiastical Committee, for two reasons. First, the Committee is a joint Committee of both Houses; secondly, unlike the Synod, it contains not just members of the Church of England but members of other Churches, because it scrutinises legislation to see how it will affect other subjects of Her Majesty. Clearly, the Bill will have an effect on the Synod.

I am a member of the Ecclesiastical Committee, but I have not received a note about the matter. Perhaps my hon. and learned Friend can find out whether the Committee has been able to debate it, and to decide whether it is content with the implications for the Church of England.

Mr. Garnier: I am grateful for my right hon. Friend's intervention. He has immense experience of the affairs of the Church of England, and I was interested to hear that, although he no longer belongs to that Church, he continues to take a close interest in it. I suspect that my right hon. Friend will know better than I whether, in one or other of its various forums, the Church has been able to express a view on clause 4. The Minister, too, may have better information than I.

We must consider clause 4 in conjunction not just with clause 21, which defines primary legislation, but with clause 5, which gives the Crown--and, subject to amendments that we may or may not debate later in Committee stage, others--the right to intervene in court proceedings. If those amendments are accepted--strictly speaking, they are not germane to this debate--and if other interveners are given rights under clause 5, the Church of England and other affected bodies, as well as the Crown, may well be entitled to take an interest in a clause 4 question.

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When considering the effect of clause 4 we must also consider clauses 10, 11 and 12, especially clause 12(3)(a) and (3)(b), because they deal with remedial action--broadly, what Parliament will do in the event of a declaration of incompatibility under clause 4. Clause 12(3) states:

The person making it would be the Minister. Paragraphs (a) and (b) are especially relevant when considering our amendments that deal with the beginning of the process--the making of a declaration by one of the courts that are listed in clause 4(5) in relation to primary legislation. We debated secondary legislation earlier, but we are now dealing with primary legislation.

I spoke deliberately about a collision point on the constitution because the Strasbourg system is invasive. From time to time, the European Court of Human Rights determines that some aspect of national law or practice is incompatible with a provision in the convention. The way in which human rights are protected in a country that adheres to the convention is no longer exclusively a matter of national sovereignty. In addition, the convention system has not stood still, and has constantly been adapted to bring it into line with contemporary notions of human rights protection--for example, through the introduction of new protocols.

In some Strasbourg court judgments it has been said that the convention represents

that it imposes objective obligations on the convention states for the protection of human rights in Europe and that the convention is evolving as Europe's constitutional Bill of Rights. Those are the words of the European Court judges, and they may ring alarm bells loudly for my right hon. and hon. Friends, and possibly in the massed ranks of Labour Members.

The convention is no longer seen as an international treaty that creates reciprocal arrangements between contracting states. It is increasingly being interpreted in line with the object and purpose rule--I am sure that the Committee knows all about that--in the Vienna convention on the law of treaties which was entered into in 1969 as Europe's constitutional Bill of Rights.

As I said in an intervention, the jurisprudence of the European Court of Human Rights over the past 30 to 50 years has been entirely candid in seeing the convention as a growing Bill of Rights for Europe. In the corporal punishment case affecting this country, Tyrer v. the United Kingdom, in 1978, the court said that the convention was a living instrument and that it had to consider the standards of behaviour, morality and ethics that are accepted in contemporary European society, and not those that were applicable when the convention came into being in the early 1950s.

The line between judicial interpretation and judicial legislation may be increasingly breached. The amendments are intended to guard against that and to

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prevent United Kingdom courts from going further than is warranted under our constitution. In view of the parliamentary arithmetic--a phrase which was used not long ago--there can be no doubt that the Bill will become an Act and that the convention, or at least those parts of it that are specified in the Bill, will be incorporated into British law. The amendments seek to limit the damage that we think may be done to our constitution if clause 4 is unamended. It has been said that the Bill would wreck our constitution, but I would not go that far.

In the debate on the Queen's Speech after the election, I said that I had no religious or principled objection to the introduction of the European convention on human rights into domestic British law. However, I remain worried that the procedures that we are adopting could damage the constitution, perhaps unintentionally. That underlines my argument on the amendments. I do not accuse the Government, at least on this occasion, of deliberately setting out to destroy the constitution, but we could make that charge stick on other occasions and we shall have an opportunity to do that.

As the Bill, amended or unamended, will become law, we must do all we can to ensure that the doctrine of the separation of powers, which underscores our constitution, is not put at risk. Our amendments are designed to protect the constitution and to prevent unwanted and perhaps unintended contests between Parliament and the courts. Why is that matter important and why are we determined to prevent the dangers that we expect would arise from an unamended clause?

The Minister does not always give me prizes for original thinking on political philosophy, and I do not think that he will give me a prize for suggesting that elected, accountable Members of Parliament, assembled in Parliament, are the proper persons to make the law, but that unelected, disinterested, unaccountable judges should interpret it. That is our system, and, under our constitution, the courts have no power to declare that an Act of Parliament is invalid.

The United States has an entirely different system. Under its system of judicial review, which is not to be confused with ours, federal judges--the constitutional judges in the Supreme Court--can strike down Acts of Congress if they believe that they contravene the United States constitution. We do not have that, and long may that position remain.

In an earlier debate, we briefly discussed secondary legislation. Because of the development of such legislation and the increasing use of regulation-making powers that are given to Ministers by statute--a matter which greatly concerns my hon. Friend the Member for Beaconsfield (Mr. Grieve)--the courts have felt able to develop the scope of judicial review of administrative action. In some cases, that has led to political criticism of the judiciary when it pronounced on matters of social or political controversy.

Sadly--or perhaps not sadly--hon. Members and the editorials of newspapers are not slow to criticise judges when they make pronouncements with which we disagree. That is what we are entitled to do. We touched on that matter in a debate on the Scotland Bill two or three weeks ago, when we discussed the appointment or removal of Scottish judges and sheriffs under the new Scottish parliamentary system.

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One of the points that the hon. and learned Member for North-East Fife (Mr. Campbell) brought out was that a judge could be criticised, for example, for overly lenient sentencing and hounded by a group of politicians for doing so. One does not have to go very far back in English political history to know that there have been criticisms of our judges by members of the Labour party and of the trade union movement, who were concerned that English judges were producing laws that were contrary to those members' interests.

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