Previous SectionIndexHome Page

9 pm

Those should be views commonly held on both sides of the Committee. I see nothing in them that could possibly be thought party political. However, my last point is party political. One of the problems with judges is that they share the human frailty of seeking always to move as far as their powers allow. We all tend that way. All assemblies move to become Parliaments; all Parliaments seek greater power; courts are rarely satisfied with the restrictions laid upon them. I believe it is necessary to ensure that our courts do not gain an appetite for what my hon. and learned Friend the Member for Harborough (Mr. Garnier) described as the attitudes of the European Courts of Human Rights and of Justice and of other courts in individual nations in the European Union and beyond.

That is why the amendment is necessary for the good of the courts, as well as for the good of the Government, the good of the people and the good of the House. I believe that the courts' natural appetite for the extension of their powers should be restrained, and the only one body that can so restrain them is the House. That is the nature of the separation of powers.

Therefore, the Committee owes it to the courts to be clear in the way that it legislates today and throughout the further stages of the Bill. We must be clear, and we can do that only if we insist that the courts be clear, for in their clarity will be their restriction. Because they have to say in detail what they find incompatible, they will not be

3 Jun 1998 : Column 448

able to stretch their powers beyond the degree to which we--of necessity, if the Bill is passed--will have to increase them.

That is why I hope that the Committee will accept that the amendment is reasonable and would be for the good of many of Her Majesty's subjects.

Mr. Maclennan: I am sorry to have to say that I did not find the speech by the right hon. Member for Suffolk, Coastal (Mr. Gummer) compelling in its history, its philosophy, its politics or its law. It finished with a rather curious, although not entirely frontal, attack on the judiciary, suggesting that they were institutionally engaged in self-aggrandisement.

That is a caricature of how our judiciary perform. It is evident that our judges are extremely careful not to trespass on the role of Parliament. Indeed, they made it plain before the Bill was introduced that, although they broadly favour the incorporation of the European Convention on Human Rights, they would prefer at this stage in the development of our constitutional thinking not to be given a power to strike down in a simple and straightforward way legislation that they consider incompatible.

The Bill represents a novel approach to the incorporation of a Bill of Rights, and its construction owes a great deal to the judicial restraint of the highest judges in the country--including Lord Bingham and many others--who publicly spoke in favour of incorporation and advised that they should not be empowered like the Supreme Court in the United States simply to strike down incompatible legislation. The attack on the judiciary by the right hon. Member for Suffolk, Coastal was very wide of the mark.

I do not see how the language of the amendments would do anything to achieve what they seem to be intended to achieve. They are not lapidary in their clarity; indeed, they could create a source of great argument and confusion. It would have been one thing if the amendments had stated simply that the declaration of incompatibility should be accompanied by reasons--one might then have been able to understand what was in the minds of those Conservative Members who tabled them--but they are couched in rather serpentine language.

Amendment No. 15 would insert the words

Almost every phrase of that could give rise to argument--barrack-room lawyers would argue about whether the judges, in making a declaration of incompatibility, had conformed precisely with the terms suggested by amendments Nos. 15 and 16.

It is clearly the case that a declaration of incompatibility would be a constitutionally solemn decision, which the courts would not take lightly or ill advisedly. I believe that the courts would take such a decision very rarely as, like Parliament, judges have, in developing common law, broadly assumed that it was the will of the British people that our obligations under the terms of the European Convention on Human Rights should be observed. It is a natural construction--an a priori view--that Parliament has not legislated inadvertently to breach the convention's provisions, so I believe that a declaration of incompatibility would be prayed in aid only rarely. To suggest that there is any

3 Jun 1998 : Column 449

automaticity in the provision--that there is an automatic triggering of legislation as a result of the declaration of incompatibility--is to misrepresent the contents of the Bill.

Mr. Leigh: As the right hon. Gentleman said, of course Parliament does not legislate knowingly to be incompatible with the convention, but the convention and the European Court move on and what might have been compatible in the past is no longer compatible. That is why there might be rather more cases coming before the European Court than he might imagine.

Mr. Maclennan: We shall see, but I doubt it. I do not doubt that cases will be brought before the European Court praying in aid the convention rights, but they will stem not from defective legislation or parliamentary activity, but more from the executive actions of public authorities.

The right hon. Member for Suffolk, Coastal implied that a declaration of incompatibility bordered on a legislative provision. That is a distortion of language. First, it is quite plain that the Bill provides a permissive power to make a declaration of incompatibility. The court is not required to make such a declaration. Clause 4(2) allows the court to make such a declaration. Secondly, such a declaration does not require the Government to introduce legislation under clause 10. That also is permissive. So to suggest that the Bill contains a trigger mechanism that could be fired and in some way diminish the role of the executive arm of government and the scrutiny of Parliament is to fail to appreciate the checks and balances that have been carefully written into a remarkable Bill.

The Bill is remarkable because it fulfils the need to provide a remedy quickly in order to avoid the injustices that would flow from a court finding an incompatibility with the European convention and the remedy depending on Strasbourg because of the difficulty of finding legislative time to introduce primary legislation to overturn the incompatible measure. The Bill has neatly tackled that problem, and in so doing has safeguarded the justice of our system without trespassing on parliamentary sovereignty.

Mr. Gummer: Has not the right hon. Gentleman now disproved his previous contention? He suggests that the reason for the particular arrangements under the Bill is to enable the remedy to be applied very quickly if a court declares a measure to be incompatible. Obviously, he expects that, if a court declares a Bill to be incompatible, there will be a speedy remedy. I suggested not that that gave the courts the ability to rule, but that it was adjacent to ruling, because it is likely that Parliament would find it almost impossible not to apply that remedy. Therefore, has not the right hon. Gentleman proved that what I said was strictly accurate?

Mr. Maclennan: No. The right hon. Gentleman has not made his case very effectively. It is quite plain that, if a court makes a formal declaration of incompatibility, it will do so advisedly because it considers the matter to be sufficiently important to trigger the mechanism if the executive arm of government and Parliament consider that it is appropriate to respond to it. It would make such a

3 Jun 1998 : Column 450

declaration only if there were an issue of some importance that required remedy. Otherwise, it is not obliged to make a declaration--

Several hon. Members rose--

Mr. Garnier: I think that the right hon. Gentleman's body language suggested that I was being invited to intervene, and I am grateful to him for that.

The difficulty that the Bill presents is that the procedure begins in clause 19. That is where the Minister makes a statement of compatibility. A litigant might take a matter to court, and if the court agreed with him, it would then make a declaration under clause 4. Even before that, there is the potential for dispute between the Executive--whether within Parliament or without--and the court. The right hon. Gentleman has addressed many points, but not that one.

9.15 pm

Mr. Maclennan: The hon. and learned Gentleman understood my body language and I understood his, but I confess that I did not understand the point that he was making. I am a little nonplussed by it and I apologise for my failure to comprehend.

I believe that the amendments were devised to make a political point--a constitutional point, which in itself is quite important. Those who want to amend the Bill do not want the right of Parliament to deliberate, in the manner to which we are accustomed, curtailed or changed by an act of the judiciary. That is an important issue that should be discussed. However, the language in the amendment can cause nothing but confusion. Therefore, I hope that it will be resisted.

Next Section

IndexHome Page