Previous SectionIndexHome Page


Mr. Garnier: My right hon. Friend is right to pull me up. Of course it is the people who have the right to know. I was thinking, naively, that the Government actually took account of the interests of the people. I was mistaken, and I apologise for being such a silly billy. This Government

3 Jun 1998 : Column 444

were described as "unusually tyrannical" in the other place by Lord Simon of Glaisdale--not a man given to hyperbole.

My right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer) was right to pull me up. We purport to represent the people in this place--I do not know what the Government think they are doing. They seem to pay precious little attention to what the people care about. [Interruption.] I will not be diverted by grumblings from the hon. Member for Slough (Fiona Mactaggart), who is not a noted constitutional lawyer as far as I am aware.

Fiona Mactaggart (Slough) rose--

The Chairman: Order. The hon. Lady must not assume that she has the Floor until it has been conceded to her by the Member she is seeking to interrupt.

Fiona Mactaggart: I apologise, Sir Alan, for misreading the body language of the hon. and learned Member for Harborough (Mr. Garnier). The point that was being made before I attempted to intervene was about representing the people. I have never suggested to anyone that I am an eminent lawyer; I have never sought to play such a role. However--like the Labour party--I have listened to and represent the people of Slough, which is why we are implementing such a substantial and important change in the Bill.

8.45 pm

Mr. Garnier: I think that I may have been mistaken not to conceal my body language. After that intervention, I shall keep my body language to myself.

My noble Friend Lord Kingsland identified the constitutional danger posed by clause 4, which would allow judges to introduce a legislative initiative. I think that amendment No. 15 goes some way in dealing with the concerns expressed by my noble Friend, which are also felt by very many people in the United Kingdom.

When introducing a convention conferring rights--the interpretation of which has been subject to argument and debate in Strasbourg and in the domestic courts of nations that are amenable to the convention, and still no exactitude has been provided--into a system of law that has until now been concerned more with remedies and duties, it is vital that Parliament should tell the courts what we expect of them.

On 3 November 1997, the Lord Chancellor said in the debate on the Bill's Second Reading:


That is undoubtedly a worthy sentiment. However, as the Lord Chancellor has also said that his legal aid reforms are designed to "increase access to justice", we should be very careful of sentiment emanating from that noble mouth.

The Lord Chancellor said:


We have tabled this group of amendments to restrict the space within which Parliament allows the courts to operate, not to inhibit the courts from protecting human

3 Jun 1998 : Column 445

rights. We fear that, without the amendments, the courts will increasingly push at the boundaries between the judiciary and Parliament, which would so upset the pertaining balance.

Under the Bill, the courts will take on a new role. Hon. Members must be careful before ceding our powers to initiate legislation to the courts. If we are to have clause 4 declarations, they must be explicit, capable of withstanding scrutiny and public explanation, and in such a form that they can sensibly inform the process that the Bill envisages in clause 12(3).

If we are to have remedial orders, they must work in concert with the final judicial wording of the declarations of incompatibility. To do otherwise would merely add to the tension that will come to exist between this place and the courts. Although it is important that there is a creative tension between them, it is vital that the Bill should not allow a destructive tension to build up.

I suggest that passing the amendments would relieve the constitution of a potential danger--one which would act to the detriment of our constituents.

Mr. Gummer: I shall not detain the Committee long, but I believe that the amendment is of considerable importance because of the need to explain to the public as a whole the effects of this new situation.

I am unhappy about the concept of rights; I happen to believe that we have obligations, and that in our obligations lie other people's rights--as a matter of fact, I do not think, philosophically, that created beings can have rights. It is a pity that we have not understood the distinction, which we have never before had in our laws. We have always seen that there is a matter of duties and obligations, and that has been the key to our handling of the sort of issues with which the European convention is concerned. However, because it is a European convention, it is heavily influenced by the works of Tom Paine and the French revolution, and papal reinterpretation of that in the latter part of the 19th century. One clearly sees that stretch of attitude in the way in which the convention is framed.

Mr. Maclennan: Would it not be historically more accurate to acknowledge the debt owed to the works of Jesuit priests and writers such as Hugo Grotius, Vitoria and others in the long Catholic European tradition, going right back to the laws of nature, which recognised rights?

Mr. Gummer: It would be possible to acknowledge that, but it would be contrary to the truth. I am sure that the right hon. Gentleman will acknowledge the fact that, until the end of the 19th century, the Catholic position was quite clear: rights were not possible for a created being; a created being had obligations, and those obligations conferred rights on others, because others were able to depend on his carrying out those obligations and to expect that he would do so.

The matter is not merely semantic, because the problem arises that the attitude towards rights that is so marked a result of the changes in the 19th century has affected Britain rather differently from the rest of Europe. As an enthusiastic supporter of our close connection with the rest of Europe, I believe that we can offer others some things where we are different and where our long history gives us a certain amount of experience that they do not

3 Jun 1998 : Column 446

have. One of those aspects of our history is the long stability that we have enjoyed in this country, but that has not been the experience of many of our neighbours.

Part of that stability arises from the division of powers. Therefore, if we are going to, at the very least, narrow that division, it is important that, on the occasions when that happens, the reason is clear to the public. The public have respect for judges, but do not expect judges to make the law; they have no respect for Members of Parliament, but do expect Members of Parliament to make the law. That distinction is important. On this occasion, we are allowing judges to come closer to making the law than they do in any other circumstance. That is the crucial issue.

Having read the debates in another place, I should have thought that the Government would want to make sure that their promise there would be carried through. They said there that they wished to make this new excursion as compatible as possible with our historic separation of powers.

I hope that the Government will not feel that that there is any way an unpleasantness about the amendment or that it should be overruled merely because the Government have a majority. I should have thought that the Government would not find an amendment that asks that courts give a clear statement of why they find a measure incompatible with the European Convention on Human Rights one on which to divide the Committee. It seems to me that everyone could agree on the matter--not just so that the Minister would find it easier to frame amending legislation, but so that the public should be easier in their minds that the judges have acted properly and constitutionally within the framework laid down by Parliament. I hope that the Government will accept the amendment as a result of that first point.

Secondly--although less importantly, as the public are most at risk of feeling that the change is not one of which they are assured--I hope that the Government will see the amendment as their defence. As things happen to be, it is likely that this Government will be in power on the first occasion--probably within the next three or four years--on which the provision operates. If it takes place after that, this Government will not have to make a decision. Ministers will surely want to know, not least on that first occasion, precisely what this is all about; what the judges are getting at; how narrowly amending legislation can be drawn.

Let us imagine circumstances in which the Government managed to pass a measure that had been hard fought against as it went through the House. Let us imagine that the Opposition had tabled amendments pointing to the incompatibility of some measure that the Government were proposing. Let us think that, in a heated moment, the Government had said very clearly that the Opposition were wrong and that the measure was not contrary to the effects of the European Convention on Human Rights. Let us think that the debate continued along that line and that, in the end, the majority ruled and the Government got their way. In those circumstances, the Government would want to be quite sure that, if the judges struck down the measure, they had the best ground for being able to eat their words. They would like to be able to say to the Opposition, "Well, what you said was not generally true, although it appears that, in a particular case, there was some truth in it."

3 Jun 1998 : Column 447

I do not want the Government to feel that they must overcompensate for what has been mistaken. In other words, if the courts struck down, or appeared to strike down, some decision of the House, the Government would want to make as small an alteration as is compatible. How could they do that unless they knew precisely why the courts had struck down the matter? I do not know why I am busy defending the Government--except that we shall inherit the matter thereafter. However, the Government need to be defended from a position in which they will have to make the remedy but will not know how widely that remedy will have to run.

That brings me to the third point. I want to defend not only the Government but all other hon. Members. The Minister is a very honourable Member, and will no doubt seek, if the task falls to him, to bring in as narrow a change as absolutely necessary. However, others will be less scrupulous, and will say to themselves, "We do not want to get mixed up with those courts any more, so let us go as far as it could be thought that the courts might expect us to, and get out of the problem in future." Unless we insist upon the detailed amendment, the Government could propose to amend the legislation far beyond what would be necessary if there were a more particular statement of what the courts were concerned about.

There are therefore three reasons why I believe it necessary for us to carry the amendment into law--the defence of the people so that they know where they are, the defence of the Government so that they know where they are, and the defence of the House, to ensure that its will is not gainsaid by one iota or scintilla more than is absolutely necessary to meet the obligations that the convention lays upon it.


Next Section

IndexHome Page