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8.30 pm

You, Sir Alan, may remember the cries of, "Tory judges are doing the Government's work," in the 1980s. Although that was no doubt a sincere and well-intended criticism--or perhaps an ill-intended criticism--it was wrong-headed because they were not Tory judges, but wholly disinterested politically. None of their judgments was based on their political opinions; they were based on an interpretation of the law, which happened to have been enacted under a Tory Government. The confusion is between Tory laws passed by a Tory Government with a majority in the House of Commons and the interpretation of those Tory laws by disinterested judges.

Mr. Humfrey Malins (Woking): Does my hon. and learned Friend agree that the great strength of our constitution is the fact that the judges have been and remain politically disinterested and separate? That is why people have so much confidence in the judges, despite what one occasionally hears from the Labour Benches. They are politically disinterested, and they realise that their job is to administer the law, not to make it.

Mr. Garnier: My hon. Friend is entirely right. That is why our amendments are so important. They will remove any doubt that may rest in the minds of those who know less about it than they should that the judges who make the declarations of incompatibility are motivated by anything other than a desire properly to interpret the statute law that is in front of them.

This is not a new problem. The tension between the two lives that I lead--one in the law and one in Parliament--is often referred to. It has been referred to by far more eminent lawyers than are here tonight, and I include myself in that. Trade union legislation in the early 1980s caused such alarm among the Labour party. You may remember, Sir Alan, the steel strike of the early 1980s, which led to all sorts of industrial action and then secondary industrial action. Laws were passed by the Conservative Government that made secondary action unlawful. It resulted in the case of Duport Steels v. Sirs.

When that case arrived at the Judicial Committee of the House of Lords, Lord Diplock said this. I always like referring to cases in which Lord Diplock has contributed a judgment. He was a very intellectually rigorous man, but he was not without a sense of humour, as I am sure the Minister will appreciate. Lord Diplock was a keen follower of the foxhounds and had a horse called Circuit. When he was at the Bar and his clients rang up and asked, "Is Mr. Diplock available?" his clerk could legitimately say, "No. I'm afraid he is away on Circuit." I digress and I apologise for doing so.

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I want to read just a small section of Lord Diplock's judgment in the Duport Steels case, because he well illustrates the points that inform my amendments:


Those words are as true today as they were when they were uttered.

Mr. Leigh: I think that my hon. and learned Friend can add to his point and make it even more powerful. As he knows, in that case, the House of Lords was striking down a judgment by Lord Denning in the Court of Appeal. Just as my hon. and learned Friend admires Lord Diplock, I admired Lord Denning. From my political viewpoint, I particularly admired a remark that he made in the Court of Appeal judgment in that case. He was dealing with that trade union dispute and said that it could have a


As much as Conservative Members may admire what he said in those circumstances, the House of Lords acted properly. It struck down Lord Denning. He should not have been making a political point of that nature. That is the powerful point that Lord Diplock was making in that case.

Mr. Garnier: That is exactly right. That is why the Court of Appeal was overturned in that case. Both the point that my hon. Friend makes and the point that I am developing in support of our amendments show that, where one is dealing with the introduction of convention rights into domestic law, and where one is introducing something into our system of law, which traditionally has been concerned more with remedies and duties than rights, the courts are sometimes tempted to introduce the sort of language that the Court of Appeal heard from Lord Denning, which is impermissible under our constitution.

Parliament--this House and the other place--should have the first word and the last. I am positive thatA. V. Dicey put it more elegantly than I have, but where we are putting the broad brush--I think that, as I am dealing with European matters, I am allowed to descend into purple prose--of the European convention across the canvas of our constitution, we should endeavour to paint a coherent picture.

I hope that the Minister enjoyed that because I want to remind him of something that Lord Kingsland, the shadow Lord Chancellor, said in the other place on Second Reading of the Bill last November. It was a model speech,

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if I may say so. It completely stripped bare the Lord Chancellor's arguments in favour of the Bill, and presented a thoroughly unmatched set of arguments. My noble Friend said that, if the Bill, became law--I paraphrase at the moment--it would be a defining moment in the life of our constitution, and as important in the history of our constitution as, for example, the Parliament Acts of 1911 and 1949. He said that all those matters


    "lie at the heart of the doctrine of the separation of the powers in our constitution, which has been the hallmark of our liberties throughout the centuries."

We should not scoff at the protection of our liberties under the constitution. Lord Kingsland suggested that the Lord Chancellor had gone for a hybrid of the New Zealand and Canadian models and that


    "he is not striking down the previous statute but is giving judges the power to make a declaration of incompatibility. He then gives Parliament the option to legislate not by full primary statute but by order in council.


    I believe that that solution is constitutionally unacceptable for two reasons which I shall try to explain . . . In the Bill the courts of this country are not bound by the decisions of the court in Strasbourg."

He said that it is to have


    "persuasive but not obligatory effect. When a court in this country makes a declaration of incompatibility, it might be making a declaration which is not an accurate photograph of the law of the convention. Indeed, that option is expressly incorporated in the Bill. To the extent that a declaration of incompatibility does not reflect the true construction of the jurisprudence of the convention, the judges will be making a declaration about the making of new law, judge-made law. Indeed, they will be doing more than that. They will be initiating a legislative procedure in Parliament."

If that is what the clause proposes, it will introduce something that we should be well aware of, and we should do something about it. Clause 4(2) says:


    "If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility."

Amendment No. 15 proposes to add these words immediately afterwards:


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

so that, when the declaration of incompatibility is made by the court, the Government--who will have to introduce a remedial order--will know precisely why the court has found that the Act is incompatible with the convention rights.

Mr. Gummer: My hon. and learned Friend says that it is important that the Government know that. May I suggest that it is more important that the people should know? This is an unusual mechanism--like him, I do not have too extreme a view of it--and some Labour Members appear to agree with my hon. and learned Friend about the change in the constitution. There are a lot of people outside who will be at least suspicious about the matter. Therefore, the Committee should accept nothing less if we want those people to accept the system.


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