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Miss Anne McIntosh (Vale of York): I intend to do my level best to encourage my hon. and learned Friend the Member for Harborough (Mr. Garnier) to make an even more robust rejection of the proposal to incorporate the convention into UK law.

I am sure that the Minister will agree that we share some confusion--having both been active in another place--about the European Court of Human Rights and the European Court of Justice in Luxembourg. Even greater confusion is caused by the fact that, for part of the year, the European Court of Human Rights meets in the same place as the European Parliament. The public are greatly confused by that.

I vigorously support amendment No. 15. I am concerned about the impact that the convention, and particularly clause 4, will have on primary legislation. In view of the Bowman judgment, it is clear that, if the convention had already been incorporated into UK law, the courts would be seeking to repeal part of the Representation of the People Act. That is one of the questions that we should consider.

I regret the intrusiveness and invasiveness of clause 4, and the impact--particularly following the Bowman judgment--that the convention will have when we adopt it into our political, electoral and judicial systems. The Strasbourg system is definitely invasive, and new legislation will have to be deemed Strasbourg-proof before we can adopt it, or we will have a plethora of court

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cases. Will the Government tell us what mechanism they envisage using to prepare future legislation in a Strasbourg-proof way?

Mr. Hoon: I can deal with that point now. The previous Government ensured for eight years or so that draft legislation was consistent with the terms of the convention. Clause 6 is also absolutely clear. Procedures are already in place, and they will be strengthened by the Bill's passage.

Miss McIntosh: I am not sure that I am convinced by that answer, but I am grateful to the Minister.

What concerns me most about clause 4 is that courts will be able to determine in future that some aspects of national law are incompatible with the convention. I am sure that the Government--the listening Government, the people's Government, they tell us--will appreciate that that could occur in politically sensitive areas, such as prisons, immigration and administrative matters, including judicial review. They may regret their proposal to incorporate the convention in United Kingdom law in toto.

The amendment should be welcomed, because it would ensure that judges would say specifically why they believed any primary legislation to be incompatible with the European convention on human rights. The amendment would also give judges a clear indication that declarations of incompatibility should not be issued unless required to resolve a particular case before the court. I hope that the judge--I mean the Minister; I did not mean to elevate him to another Bench--will comment on that when he winds up.

I do not mean to denigrate the judiciary in any way, but a substantial period will be needed if it is to adapt to its new responsibilities under clause 4. Similar problems were experienced in 1973 when the treaty of Rome was introduced to the UK. Courts and practitioners applying European law for the first time needed a substantial period to be educated--for want of a better word--on the impact of the treaty on the interpretation of legislation.

I am delighted to say, Mr. Martin, that Scotland led the way in that regard, particularly through ProfessorJ. D. B. Mitchell, of whom I had the great honour to be a student. We led the way because constitutional law courses in Scotland implemented a vigorous education for budding practitioners at an early stage. Present practitioners do not have that experience.

Mr. Hoon: Was the hon. Lady happy with how the treaty of Rome was incorporated into UK law?

Miss McIntosh: It might be more appropriate to comment on that on some other occasion, as we have more pressing matters to discuss this evening. Perhaps the Minister would like to discuss it with me at greater length in one of the parliamentary bars, so that we do not take up the Committee's time.

I commend the amendment to the Committee, and hope that the Government might be minded to support it.

Mr. Malins: First, I declare an interest. I am a recorder of the Crown court and, for some years, I have been an

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acting metropolitan stipendiary magistrate, so I have a great deal of judicial experience behind me. That has enabled me to realise that, when I sit judicially, it is my job to apply the law, whereas in this House it is our job to make the law. It is terribly important to understand and to maintain those differences.

When I spoke on Second Reading, I was vehement in my opposition to the principle of the Bill. I said that the danger was that it would effectively give the judges of this country powers to make law, whereas their job is to interpret it.

The right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) was a little unkind to my right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer) when he accused him of launching an attack on the judiciary. My right hon. Friend did no such thing. He was rightly pointing to the different roles of the judiciary and Parliament, and saying that he feared that we might move towards a stage when the judiciary began to overlap into the fields that belong principally to Members of this House. He went no further--indeed, he was generous in his remarks about the judiciary.

Clause 4 is the cutting edge of the Bill. It is the point where the convention will bite in particular litigation to enable the litigant to invite the judge to come to a conclusion different from that which he would have reached but for the convention. Thus the amendments, and the clause generally, are extremely important. I urge the Government to accept the amendments. I see hon. Members who I know have reasonable attitudes. I shall not name them, but a number are known to be sensible thinkers about these matters. If they listen to our arguments carefully, as I can see they are doing, they will inevitably take them on board, and are likely to support us later tonight.

The past is in the past, and I must accept that my opposition to the Bill on Second Reading was not enough to carry the House on that occasion--not enough hon. Members took the same view. I said then, and I repeat tonight, that the roles of the judiciary and the legislature are, and should remain, entirely different. We must deal with the method by which the Government seek to give practical effect to the convention in English law. Having accepted the will of the House, it is important for me carefully to examine the problem, and to argue my corner about how best to give practical effect to the convention in our law.

Surely we can all agree on the need for clarity rather than obscurity and confusion when choosing the method of giving effect to the convention. The Bill's method is to enable the judge to make a declaration of incompatibility between a provision of existing domestic law and a convention provision. There is no reason in principle why that provision of domestic law should be a statutory provision or a provision of delegated legislation; it could well refer to common law. I add that a declaration of incompatibility may occur between a provision of existing domestic law and a convention provision as already interpreted by the European Court of Human Rights.

9.30 pm

The amendments, particularly amendment No. 15, ask the court properly to particularise the incompatibility. I hope to show why that is not only desirable but

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absolutely essential. Let us take a simple law case. It may arise under existing landlord and tenant or employment legislation--it matters not.

Let us say that landlord and tenant legislation provides that a three-week period is reasonable notice for a change in the relationship between the parties. Suppose the court, on hearing argument, finds that the three-week period fails adequately to safeguard one or more convention rights. It would be unhelpful--indeed, arguably, faintly ludicrous--for the judge simply to say that and go no further. The judge should perhaps say what period would be a sufficient safeguard.

One can think of Revenue cases, particularly those concerning penalty time limits, in which such a point might be highly relevant. In my hypothetical case, it is no good the judge simply issuing a declaration of incompatibility and saying that three weeks is not long enough: he must go further.

Mr. Maclennan: Is not the hon. Gentleman, in making that suggestion, inviting the judge to usurp the legislative function and say what should be done? That is very much a matter for the House.

Mr. Malins: As I continued to explore that argument, I asked myself that very question. Was I in fact suggesting that the judge should move into the legislative sphere? However, that is not my point. My point is that the judge should not simply issue the declaration of incompatibility but give much more explanation, so that the House and others know what the judge considers the problem to be.

In my example of the three-week period in the relationship under landlord and tenant law on which the judge issues a declaration of incompatibility, such a statement is not enough. For example, what would the House do when faced with such a simple declaration of incompatibility? Would it remedy the point by substituting four, five or six weeks, only to have the same or a different judge saying later that that was not long enough?

The law should not be a game of ping-pong between the courts and the elected House of Commons. There is a danger that that will happen unless the amendments are accepted.

Here is an example of the problem as it currently exists. Under the Unfair Contract Terms Act 1977, a limitation clause in a contract may limit damages to £100,000, and the judge may strike it down as unreasonable. It could be argued that the unjustness in that case arises because we gave no power or duty to the judge to substitute a reasonable figure. Once the limit is judged unreasonable, the contract contains no limit: there is unlimited liability.

There is no obligation on the judge in such a case to tell the parties what would be a reasonable provision, and thus enable them to plan their future affairs properly. We cannot allow such a situation to exist. The amendments are right, and the judge must be required to state what aspect of the provision is incompatible and to what degree. The judge should produce a fully particularised judgment, so that people know why he or she has come to such a conclusion. The parties--the people of this country if it is a common law point, and the House of

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Commons if it is a statutory point--should know exactly how to alter their respective affairs or the law so as to comply with the convention.


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