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Mr. Maclennan indicated assent.
Mr. Clappison: I am grateful to the right hon. Gentleman for nodding.
The right hon. Gentleman's argument continued that new clause 10 was similar in nature to new clause 13, which we have just debated, and new clause 9, which we debated on an earlier occasion, which invite the courts to pay particular regard to the right to freedom of religion, thought and conscience in the case of new clause 9 and the right to freedom of expression in the case of new clause 13.
I would submit that there is a difference because new clause 10 does not relate to a free-standing right. For that reason, the two new clauses are perfectly workable and should not give rise to problems for the courts. However, I wonder whether this new clause might give rise to problems for the courts, because it is not a free-standing right, but a right of enjoyment that applies across the board.
As I have already said, the words of article 14 are clear enough in themselves. I wonder how a court would try to apply new clause 10. Indeed, I wonder about the type of case that might arise in practice. So, although I am perfectly happy with the sentiments behind the new clause, I should be happier if the right hon. Gentleman could give us more practical examples of how it might operate in practice.
I am concerned that new clause 10 would make it difficult for the courts to give effect to the convention. As I have said, the courts are already enjoined to give people access without discrimination to the rights under article 14, but how would the new clause work in practice and how would the courts approach it if, in the enjoyment of any right, the issue of discrimination arose? Would not the matter be weighted in favour of the applicant and would it not be difficult for the courts to give effect to such a measure?
The right hon. Gentleman has clearly done some research into the cases. He described the Dudgeon case from Northern Ireland, which he said was resolved by reference to rights rather than the status of the individual. It is always slightly dangerous to venture an opinion on a case without knowing all the facts, but, on the right hon. Gentleman's brief description of it, I was rather inclined to agree with the judgment of the court. The court got it right by resolving that by reference to rights rather than the status of the individual. I suspect that new clause 10 may not be needed and that it might have some unintended consequences. Moreover, it would be difficult for the courts to give effect to it in practice.
The Minister appears eager to respond, and I am interested in hearing what he has to say. Earlier, my hon. Friend the Member for Beaconsfield (Mr. Grieve) wisely advised us against tinkering with the Bill. New clause 10 may, although with the best of intentions, be a piece of such tinkering, which we might come to regret. I would not go as far as the Minister did in replying to the previous debate, when he described this as a splendid piece of legislation without any blot or blemish and a tribute tothe draftsmanship of the Lord Chancellor--the Lord Chancellor is certainly proud of the Bill as a piece of work--but if we were to accept the new clause, we would be at risk of tinkering. I look forward to hearing the Minister's response because I suspect that he will tell us that, although worthy, the new clause is not needed.
Mr. Mike O'Brien:
The hon. Member for Hertsmere (Mr. Clappison) is right, but the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) has raised a series of important points, and I hope that I shall be able to deal with some of them.
New clause 10 requires a court or tribunal, when determining any question arising under the Human Rights Act that concerns an issue of discrimination, to have particular regard to article 14--that the rights and freedoms set forth in the convention shall be secured without discrimination on any ground.
I am ready to join the right hon. Gentleman in emphasising the importance of article 14 and the position that it occupies in the convention, and to express the Government's hope and confidence that it will be given full weight in our courts in the same way as the other articles in the convention. I acknowledge, too, that the words "on any ground" are important. Article 14 contains a list of grounds on which discrimination in securing other convention rights is prohibited, but it is important not to overlook the crucial words "or other status" which appear at the end. The list is not an exhaustive one, and should not be treated as such.
I share the concerns of the hon. Member for Hertsmere that we may be at risk of tinkering with the Bill in a way that might have some unintended consequences. I cannot
advise the Committee to accept the new clause. My reason, in a nutshell, is that the new clause is either empty of substance because it merely states the obvious, or it represents an attempt to gloss the convention rights, however slightly, in a way that we have so far avoided doing in our proceedings. We have been careful to avoid doing so, particularly in the clauses that have been added to the Bill in recent months.
There is no disguising the fact that article 14 and the way in which it has been applied are not regarded as fully satisfactory by a number of commentators who have a particular interest in, for example, race equality issues. Its most obvious limitation in their eyes is that it is not a free-standing anti-discrimination provision, but, as the hon. Gentleman said, is parasitic. I do not like that phrase, but essentially it is tied to the other convention rights.
It is no secret that discussions are under way in Strasbourg on the possibility of a new protocol tothe convention to introduce a free-standing anti- discrimination provision. That is the right way of dealing with that question--if, indeed, it needs to be dealt with.
Mr. Clappison:
I am grateful to the Minister for agreeing with my description of the provision as a parasitic right which would affect other free-standing rights. Does he share my concern that, given that it would affect all the other free-standing rights in the convention, it would create an incentive for individuals who are seeking to take advantage of their alleged entitlement to those rights to plead discrimination, and that we would see a welter of cases involving free-standing rights, in which individuals were pleading discrimination, thus making it difficult for courts to give effect to the convention?
Mr. O'Brien:
We shall have to consider that situation in due course. No doubt those who are considering whether there should be a new free-standing provision will have to consider its effect not only on domestic problems in our courts but on the Strasbourg court and the sorts of cases that are brought before it. Clearly, such issues will need to be discussed and probably the best way is to ensure that the UK delegation, which is playing an active in the Strasbourg deliberations on any protocol, bears in mind the impact that it would have on our courts and on the Strasbourg court in deciding whether a free-standing anti-discrimination provision should be forthcoming. Therefore, we should not prejudge the situation that may develop; in a sense, that is what the new clause does.
Mr. Maclennan:
I should be grateful if the debate did not go off at a tangent. The new clause is not intended to pre-empt the discussion about the free-standing rights against discrimination. I am aware of those discussions, and I hope that the Government will be supportive of establishing a free-standing anti-discrimination provision. The new clause is designed simply to ensure that the fundamental rights and freedoms that the convention seeks to safeguard are available not just to the limited number of categories of people who are mentioned in article 14, but to those of other status. I am delighted to hear the Minister say that he regards it as common sense
Mr. O'Brien:
But the new clause essentially puts a gloss on the convention and, throughout the Bill, we have tried not to do that. We have tried to grant access rather than create a new gloss on those convention rights. Even in new clause 13, we were careful about that. Our concern is that, with the best of intentions, new clause 10 would not continue that level of care.
I understand the view that may be expressed that, despite, for example, the Sutherland case, the European Court of Human Rights has been somewhat conservative in its judgments concerning article 14, and perhaps too ready to find in favour of states on the ground that there was objective justification for some action which, on its face, might be considered discriminatory. However, whether or not that is so, it is not something we can influence by an amendment to the Bill. Nor do the Government wish to suggest that, in general, our courts should take a different view on the issue from that taken by the European Court.
The Bill is based firmly on the proposition that it is about access to the convention rights, not their substance, and that our courts must take into account the Strasbourg jurisprudence. We cannot honourably pick and choose which rights should be subject to those propositions and which should be open to more generous treatment from the point of view of applicants to our courts.
New clause 10 is an attempt to go some way down that road. It might be seen as an attempt to gloss the convention, encouraging our courts to interpret article 14 more widely than can be justified by reference to Strasbourg jurisprudence. If it does not do that, I fail to see what it does do.
It has been pointed out that, in many ways, new clause 10 merely tries to do for various minorities what other new clauses that the Committee has accepted do for the Churches and the press. I do not think that the parallel is appropriate. Our provision on the Churches emphasises to the UK courts how the Strasbourg institutions have consistently interpreted article 9 rights. It directs the courts' attention to Strasbourg case law, which is to the effect that a Church body or other association with religious objects is capable of possessing and exercising rights contained in article 9 in its capacity as a representative of its members.
Similarly, the provision on freedom of the press is grounded firmly on Strasbourg case law, which encourages the particular importance of the article 10 right to freedom of expression. Moreover, those changes, as well as being wholly in accord with the principles of the Bill and the convention, address concerns of the Churches and the media that the Bill might worsen their position. That consideration does not apply to article 14.
6.45 pm
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