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Mr. Grieve: I do not wish it to be thought that the only speeches supporting the amendments came from those who, on broad principle, were against the Bill. As I think the Minister knows, I support incorporation, although there are some matters that I wish to scrutinise and criticise during the passage of the legislation. I appreciate the point, which I am sure the Minister will make, that one would normally expect a court, when pronouncing on a question of incompatibility, to set out the nature and the extent of that incompatibility as it arises from the nature of the case that is before the court. In principle, that is what one would expect, but, in my experience, courts occasionally do not do that. It is an indispensable prerequisite to Parliament being able to make an objective and correct judgment on incompatibility and on how it wishes to proceed for that decision to be made here.
One of the anxieties that has been expressed at length during consideration of the Bill and with which I broadly disagree, although I understand its nature, is that the courts will start to substitute themselves for Parliament in ensuring the freedoms of the people. As I have said, this legislation will work and will go down in history as being great if it is subsequently perceived that Parliament and the courts are working in tandem to achieve good human rights in accordance with the convention and its incorporation in our national law. It follows that, if primary legislation is considered to be incompatible with the terms of the Bill and the incorporated convention--an event which, I hope, will rarely occur--we should be clear about what the court has said is the problem, and there should be public consideration of the matter.
As I said on Second Reading, the Bill is not written in stone. On occasions, Parliament, having considered the matter carefully, might decide that, notwithstanding what has been said, it wishes to derogate from the court's decision, for sound public policy reasons. I hope that it would not have to do that, but it might. It seems that little would be lost by including amendments Nos. 15 and 16, which relate to subordinate legislation, and that something might be gained, although I would understand the
Minister saying, "Normally, I would expect this to be dealt with without any specific reference to it being made." Nevertheless, if no harm would result from including the amendment--I do not see what harm would result--it could properly be put in the Bill.
The matter is somewhat different in respect of amendment No. 103. It requests that a court should not make a declaration of incompatibility
I do not think that the amendment will fetter a court's ability to make obiter pronouncements suggesting that, in some other respect, something that it is considering may not be compatible with the convention. I therefore ask the Minister to consider that amendment as well, although I would be not be as worried about it not being made as I would be about the other two amendments not being accepted.
Mr. Hoon:
I agree with Opposition Members to this extent. Clause 4 is central to the careful compromise that the Government propose in the Bill--a compromise between parliamentary sovereignty and the need to give proper effect to the European convention. However, the Government will resist the Opposition amendments because they will unnecessarily disturb the careful balance that the Government have sought to establish.
Amendments Nos. 15 and 16 would require a court making a declaration of incompatibility to set out the nature and extent of the incompatibility in so far as that arose from the nature of the case before the court. It is important to remind the Committee of what the court will do when it makes a declaration of incompatibility by virtue of clause 4.
By virtue of clause 3, the court will have done everything possible to find an interpretation of the relevant legislation that is compatible with the convention rights. If one of the courts that is specified in clause 4 is satisfied that it is simply not possible to find a compatible interpretation, it will be able to say so formally by means of a declaration of incompatibility. That is most likely to have followed the procedure that is set out in clause 5 giving the Crown the right to intervene.
With great respect to the hon. Member for Woking (Mr. Malins), I believe that his description of courts suggested that they would pronounce on incompatibility almost at the drop of a hat. There will be a vigorous contest before a court, and both sides of the argument will be extensively debated and discussed before that court reaches a decision. As I have said in an intervention, it will be obvious that the matter has been explored in considerable detail and, clearly, one of the higher courts that are set out in clauses 4 and 5 will be required to explain in some detail the reasons for issuing the declaration.
A declaration of incompatibility will be a statement that, in the court's view, there is a problem with a piece of legislation in terms of its compatibility with the
convention, and it is not open to the court itself to rectify or to make good the legislation. That may happen because a Government may have deliberately provided in a Bill that it is not to be open to the court to strike down primary legislation. That course of action could have been considered by the Government when making our proposals. As we heard from the hon. and learned Member for Harborough (Mr. Garnier), that approach is adopted in some countries when dealing with such measures. Nevertheless, the Government decided that, in the interests of maintaining parliamentary sovereignty, that would not be the course we would commend to Parliament.
Perhaps I should turn in more detail to the formulation offered in amendments Nos. 15 and 16. I doubt whether a requirement on the court to explain the "nature and extent" of the incompatibility would add anything to the Bill, from anyone's point of view. As the Bill stands, I would expect a court, when making a declaration, to explain what the difficulty was and why it had been impossible to overcome it by constructive interpretation of clause 3. How the declaration arose would be apparent from the judgment as a whole.
A legislative provision will be either compatible or incompatible. The idea that it is possible for a court to certify the extent of the incompatibility is patent nonsense--forgive me for putting it so brutally. It is not possible to certify the extent of an incompatibility. There is either a breach of the convention or there is not. That part of the amendments is patently absurd. There will not be degrees of incompatibility, or any difference between one kind of incompatibility and another.
I am not sure what is meant by the "nature" of the case before the court. Does that refer to distinctions between civil and criminal cases, between cases involving juveniles and cases involving adults, between long and short cases, or between cases with a jury and cases without a jury? Not one Opposition Member has troubled to try to explain that aspect.
Even if we accepted such wording, why is the nature of the case relevant to whether legislation can or cannot be interpreted compatibly with the convention? The implication is that legislation could mean one thing in one case and another in another case. That hardly strikes me as a sound basis for judicial interpretation. Having thought more carefully about the amendment, I hope that Opposition Members will accept that they are not arguing for anything terribly sensible.
"unless it is necessary for the purpose of determining the matter before it."
I had some hesitation about that when I first considered it, because what the courts may say in obiter parts of their judgment is important for lawyers in respect of similar cases, but it would still be open to a court to reveal in the course of a judgment its anxiety over some passage relating to a case not before it, without making a declaration of incompatibility that did not relate to the matter before it.
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