Examination of witnesses (Questions 400 - 419)
TUESDAY 3 MARCH 1998
THE RT
HON THE
LORD IRVINE
OF LAIRG,
QC and MRS
SARAH TYACKE
400. Bearing in mind that Parliament is sovereign there
is nothing to stop Parliament saying in individual cases, "Okay,
you have no power to declare the laws invalid but you do have
the power to give a remedy to that particular litigant."
(Lord Irvine of Lairg) Certainly so. That could
be argued very vigorously in the House of Commons in particular
cases. You should not underestimate the enormous triumph that
an individual gains if he persuades a court that an Act of Parliament
is incompatible with the Convention and then kicks the issue very
firmly back into the Parliamentary arena with the consequence
that the Act of Parliament is changed. For many pressure groups
and interest groups that will lie behind these cases that will
probably be a greater prize than money.
401. I quite accept that but I still think, bearing in
mind that we tend to base our litigation on solving individual
cases, that if we have a situation where the individual case is
not actually solved because no remedy is given that is not an
entirely satisfactory resolution for that individual.
(Lord Irvine of Lairg) I can see why you are saying
that. All that I am saying is that there is a larger public purpose
that will lie behind these cases as well as a remedy for the individual.
Mr Bradley
402. I do not know, Lord Chancellor, whether you are
aware of the singular honour conferred on you today, but standing
room only in this Committee is very unusual. It clearly shows,
at least to myself, that public interest in home furnishings is
equally matched by an appetite for constitutional reform!
(Lord Irvine of Lairg) They certainly seem to
have run together recently.
403. They do. I wanted to ask about the relationship
between Parliament and Courts, between elected politicians and
appointed judges, particularly in the context of the incorporation
of the Convention on Human Rights. Who should arbitrate on matters
of interpretation of the European Convention as it effects British
law and British constitution, the judges or politicians?
(Lord Irvine of Lairg) Once Parliament instructs
the judges so far as possible to construe Parliament's statute
compatibly with the Convention, that is an instruction by Parliament
to judges to do that job and so Parliament is conferring that
job on the judges but if with the best will in the world the judges
say, "Well, we just can't construe this statute compatibly
with the Convention", then the judges may make a declaration
of incompatibility. They are not obliged to but they may make
it and that then gives the problem, if you like, of incompatibility
back to Parliament where I think it primarily belongs but the
Human Rights Bill, as I say, confers this interpretative jurisdiction
on the judges to construe all Acts of Parliament as far as possible
compatibly with the Convention rights.
404. Who has the final say though?
(Lord Irvine of Lairg) Parliament always has the
final say because Parliament is sovereign and can change the law
and so, for example, if the judges construed an Act of Parliament
in a particular way in order to be compatible with the Convention
and if it was a big enough issue for Parliament to turn its attention
to it and Parliament thought that another legislative means compatible
with the Convention could be found, then our Parliament is sovereign
and it could obviously achieve that. Also under the scheme of
the Bill, if the courts made a declaration of incompatibility
Parliament could decline to legislate to remove the incompatibility
although obviously it would be under pressure to do so. The scheme
of this Bill is to maintain the sovereignty of Parliament.
405. Other constitutions see it differently. In Canada,
as I understand it, the courts do have power to strike out law
they consider to be bad law.
(Lord Irvine of Lairg) They strike it down or
as some of the models propose they would allow almost a judicial
modification of the statute to make it compatible. Well, our scheme
is a reconciliation of a strong method of giving greater effect
to Convention rights with an adherence to the classic sovereignty
of Parliament. I think we would have had a very very much greater
controversy about this Human Rights Bill than anything which we
have seen if we had gone to the Canadian model which allows judges
to strike down Acts of Parliament. I would be interested to know
if you are in favour of judges having the power to strike down
Acts of Parliament.
406. I am not sure that I am but I can see an argument
that suggests justice is blind - politicians maybe short-sighted
but justice is blind - but is it not better to leave these very
difficult matters of constitutional rights for citizens in the
hands of people who have no political motivation? I see that argument,
I am not sure I subscribe to it, but it is a valid argument.
(Lord Irvine of Lairg) It is a very very strong
thing to give judges power to strike down an Act of a sovereign
Parliament in the exercise of their judgement. You take us to
the core of the Bill, of course, that the philosophy of this Bill
is that judges in our culture looking at our history of Parliamentary
sovereignty and so on, should stop short of doing that, that Parliament
can say to the judges, "Do the very best you can to construe
what we have said compatibly with this Convention. If you just
can't, the problem is back to us."
407. What happens if judges construe and say to Parliament
in effect, "We believe that this piece of legislation is
not compatible but Parliament in its wisdom decides to pursue
it anyway"? We then have at least a public perception that
we have legislation which is somehow unlawful.
(Lord Irvine of Lairg) It would not be unlawful.
408. By definition it would not.
(Lord Irvine of Lairg) I would have thought in
the majority of the cases, probably the overwhelming majority
of the cases where the judges had held a statute to be incompatible,
Parliament would want to move fast and there is a fast track statutory
mechanism for doing so to remedy the incompatibility. You are
right to ask the hard question. Ultimately, Parliament is not
obliged to do so because of course the individual could go to
Strasbourg and get remedy on the footing that the judges had got
it right and the statute was incompatible. For Parliament to abstain
from making a remedial order to remedy the incompatibility would
simply be to postpone the evil day.
409. Moving on to another important debate, I think most
people recognise that freedoms often, or at least on occasion,
conflict.
(Lord Irvine of Lairg) That is the greatest truth
about freedoms; they conflict existentially.
410. Quite. There is conflict, not an inevitable conflict
but obviously it will arise from time to time, between Articles
8 and 10 about which there has been a great deal of debate recently.
There should be freedom of expression, freedom of information
and the press.
(Lord Irvine of Lairg) Absolutely.
411. But it should not necessarily be an absolute freedom,
should it? People also have the right to privacy?
(Lord Irvine of Lairg) And indeed Articles 8 and
10 respectively address the right to respect for private and family
life. There is a right to freedom of expression, a major component
of which is the freedom of the press, and our courts and the European
Court of Human Rights have given a very very high value indeed
to freedom of expression, freedom of the press, and I read out
at an earlier stage a quote which I will not at this hour read
again.
412. It is right that should be so. The balance is difficult
to strike but it is right that we should preserve freedom of expression
and freedom of the press. What does worry me though is that in
my view we have still not properly resolved the right to privacy.
I wonder whether you have any thoughts having moved on from the
debate that took place a couple of weeks ago as to how best individuals'
rights to privacy can be protected?
(Lord Irvine of Lairg) What I would say about
that is to reiterate Government policy. We have no intentions
of introducing a statutory law of privacy by the front door or
by the back door and we strongly favour self-regulation and despite
everything you may have read I have never said anything else and
I do not myself believe that as a result of the incorporation
of the European Convention on Human Rights the newspapers will
go down to injunctions on a Friday night that upset their publishing
dates and I think that the amendment which my colleague Jack Straw
is bringing forward in relation to the Human Rights Bill will
simply serve to emphasise that.
413. But that still leaves unresolved the right of the
individual to privacy, does it not? We have read about a case
recently where a private investigator has been convicted of obtaining
information which she has been feeding to national newspapers
about the private lives of individuals. She has been doing it
by a method that is unlawful - -
(Lord Irvine of Lairg) We have to bear in mind
that the Human Rights Bill reaches statutory bodies, it does not
reach private bodies.
414. Of course, but the problem has focused on press
intrusion, has it not, in the public debate that we have been
having? You talk about self-regulation, which of course in principle
is fine and the right way to conduct ourselves in a democratic
society, but is it your view that that self-regulation as expressed
by the Press Complaints Commission actually works and actually
does afford to the individual the right to privacy that most of
us would wish to have protected in our own lives?
(Lord Irvine of Lairg) Well, it has significantly
strengthened and it was strengthened in ways which I think a lot
of people found welcome in the immediate aftermath of the death
of the Princess of Wales, but I dare say that all systems of self-regulation
can be made better.
415. In what ways in this particular instance?
(Lord Irvine of Lairg) As I say, I do not have
any particular agenda for enhancing self-regulation. One of the
misstatements that was attributed to me was a proposition that
I desired there to be statutory powers which would operate to
make self-regulation stronger. I do not wish that nor was it what
I said. Self-regulation is for the self-regulators and the Government
has no plans for a privacy law.
416. I was not really seeking to point you in that direction,
but do you think there is a problem both in the way it operates
and in the public's perception that the Press Complaints Commission
is funded by the press?
(Lord Irvine of Lairg) No, I do not think that.
I do not think that there is any public demand for statutory regulation
of the press. Certainly the Government is not in favour of that
and it is a good thing that the press funds its self-regulatory
body. You will also bear in mind that there is now a majority
of lay people on the Press Complaints Commission which I think
adds to public confidence.
417. Would it nonetheless be better if it were an independent
body?
(Lord Irvine of Lairg) The only possible alternative
to self-regulation is statutory regulation and the Government
does not favour statutory regulation.
418. We have heard from previous administrations about
"drinking in the last chance saloon." What would it
take, do you think, to cause you to think again?
(Lord Irvine of Lairg) I would certainly not use
that kind of language which I think comes from David Mellor. I
think it is a hypothetical question which especially at this hour
of the day I am not minded to embark on.
419. Just one other line of questioning which I am sure
at this time of day you will not have time to go into in detail.
We are talking about constitutional reform and I believe you are
chairing or are certainly involved in consideration of the future
of the House of Lords.
(Lord Irvine of Lairg) That is correct.
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