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Mr. Hoon: I have listened carefully to the hon. Gentleman's arguments, but some of them are a little far-fetched. Can he contemplate a decision by any of the courts listed in clause 4(5) that does not give carefully particularised reasons for the finding of incompatibility?
Mr. Malins: If the Bill had stated that, the Opposition would not have tabled the amendment. The clause provides that the court
- "may make a declaration of that incompatibility."
- "setting out the nature and extent thereof in so far as arises from the nature of the case before the court".
Mr. Leigh: The Minister has at least done the House a service. Under Pepper v. Hart, a Minister's words--especially such a distinguished Minister as the hon. Gentleman--can be used by the courts to interpret the intentions of Parliament. Although the Minister will instruct his minions to vote down this sensible amendment, he has just said, in effect, that the courts should do precisely what the amendment would require them to do.
Mr. Malins: My hon. Friend has hit the nail on the head. It is all very well the Minister sitting there smiling, but this is a serious point, because people outside the House will take note of what is said in this debate. The Minister asked me whether I could envisage a case in which the court did not issue a fully particularised and detailed view on the matter. That requirement is not in the Bill, and the Minister's words may come back to haunt him. He seems to have accepted the substance of the amendment.
Mr. Grieve: I can think of a number of judgments of superior courts, including the House of Lords, which, while dealing with a precise point that had arisen before them, provided no guidelines on how the law might be complied with. That is precisely the point that the amendment is designed to address.
Mr. Malins: My hon. Friend, who, like my hon. Friend the Member for Gainsborough (Mr. Leigh), has a distinguished career in the law, again makes a valid point. Conservative Members are afeared that the Bill means what it says. The Minister may correct me if I am wrong, but it says that a declaration of incompatibility will be issued.
I have been asked whether I could imagine a situation in which such a declaration would not be full, covering all the points of the amendment. If the Minister is saying that he is absolutely certain that its spirit and wording would be observed in practice, we should be happy to hear it, but that is not in the Bill, which is why we are advancing these arguments.
I must make a few concluding remarks, because the thrust of my arguments has, I hope, become clear. It has certainly become clear to me. Our amendments would
help to prevent, or certainly discourage, judges from pushing for changes in our law that were not strictly necessary. My right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer) referred to that danger, and it lies ahead. The amendments would also discourage judges from getting involved in the political arena too much, and pressure groups from pushing too hard to open up a whole field in any particular case.
It must be clear to Labour Members that the Minister has, by his words tonight, effectively accepted our amendment. Therefore, I am sure that, having heard the arguments, he will accept it and bring his colleagues with him into the Lobby with us. If he does, and if he recognises our concerns, we shall be satisfied.
Mr. Gerald Howarth:
The clause goes to the heart of the Bill. My hon. and learned Friend the Member for Harborough (Mr. Garnier) was absolutely right to say that it is a collision point; I regard it as a recipe for permanent conflict between Parliament and our courts. I agree with my hon. and learned Friend's assertion and encourage him to go further in attacking the Government. He said that he acquitted them of seeking to destroy the constitution through the Bill. He is a reasonable man, which is a reason why he advanced that case. I am not of such charitable disposition.
As I have said previously in the House, I believe that the Bill is one of a series of measures--on Scotland, the Welsh Assembly and the proposals for the European Parliament--that strike at the constitution. A constitutional arrangement that has served the people of Britain well is being systematically destroyed. That owes much to the vanity of the Prime Minister. He has no great economic issue to fight, because that was done by the Conservatives over 18 glorious years; therefore, he has turned his attention to wrecking the constitution.
My hon. Friend the Member for Woking (Mr. Malins) said that people outside the Chamber would listen to the debate with great interest. I am afraid that he was joking, because our debates on the great constitutional issues, which affect the people of this country, are not being reported. We need only look to see the number of journalists taking careful note of what is said.
My right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer) was right to say that the people have an interest in constitutional measures, but those issues are not being brought to their attention. As the Minister knows, people are much more interested in the Lord Chancellor's wallpaper. As the hon. Member for Sherwood (Mr. Tipping) knows, I played a small part--I should be the first to acknowledge that that is an important issue, but it is not half as important as the issues that we are debating.
Consider the relative coverage that constitutional issues have been given by the media: Gazza, and Ginger Spice leaving the Spice Girls have commanded acres of coverage. One day, the people of Britain will wake up, and will see that all these changes are being made to our constitution.
The First Deputy Chairman of Ways and Means (Mr. Michael J. Martin):
Order. I must ask the hon. Gentleman to confine himself to the amendment. The matters to which he is referring have nothing to do with it.
Mr. Howarth:
You are very kind, Mr. Martin, but I am trying to draw attention to the importance of the issue. I think that what I am saying is pertinent to the amendment, which requires the courts, if they seek to strike down legislation on the ground that it is incompatible with a convention right, to give reasons for doing so. I think that such questions should be aired to a much wider public than they are now.
The Bill strikes at the heart of the concept of the separation of powers. I do not share the benign, indeed complacent, view of the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan). He does not think it possible that judges would seek to challenge Parliament--but, as my right hon. Friend the Member for Suffolk, Coastal pointed out, judges are human beings like the rest of us. As I think my right hon. Friend said, they have a natural appetite for the extension of their powers, and that should be constrained.
In this place, we should anticipate what might come to pass. There are enough eminent lawyers around--I single out just two, George Carman and Geoffrey Robertson--who quite enjoy the limelight. I cast no aspersions on them, of course--not tonight, anyway--but I think that, if the Bill becomes law, we could well be faced with a new breed of judge, who would seek--
The First Deputy Chairman:
Order. The hon. Gentleman cannot get away with this. He is trying to engage in a Second Reading debate, but, as he must know, there are amendments before the Committee, and he must zero in on them.
Mr. Howarth:
I am grateful for your guidance, Mr. Martin.
We have been discussing the separation of powers, and how the amendments relate to it. My point is that there is a grave danger that the courts will seek to exercise new powers that the Bill confers on them. The amendments merely require them to explain why they seek to strike down laws enacted by this sovereign Parliament.
Mr. Gummer:
May I return my hon. Friend to the subject of the amendment? Its purpose, surely, is specifically to constrain the human condition. I am sorry that the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) took it so personally; I merely said that we were all heir to the same danger--the danger of wanting greater rather than lesser powers. That seems manifestly true to me, and the amendment would enable us to restrain such powers in an elegant but important way.
Mr. Howarth:
My right hon. Friend has made his case eloquently, and he is entirely right. I hope that the complacency of the right hon. Member for Caithness, Sutherland and Easter Ross will be noted, because I think it extremely dangerous. It should be made clear that, unless the amendment is accepted, the courts may seek to overthrow the rights of our Parliament.
In October last year, in an interesting article in The Times, Sir Brian Cubbon--formerly Permanent Under-Secretary of State at the Home Office--wrote:
9.45 pm
"The redress of grievances has been a traditional role of the House of Commons. The Bill would shift that responsibility to the courts over the whole field of what are called human rights in the European
3 Jun 1998 : Column 457Convention. This goes far beyond the present scope of judicial review . . . Rights under the convention cover many of the grievances which MPs receive from their constituents about public authorities."
My hon. Friend the Member for Woking said that pressure groups, having failed to impress their case on Parliament, might seek to come not to this place but to the courts, where they will argue their case in the hope that they will enable the judges to strike down laws that were enacted by Parliament.
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