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Lord Archer of Sandwell: It is with some trepidation that I venture to follow the noble and learned Lord, Lord Browne-Wilkinson, particularly because the purport of my intention is to agree with him.

I was not able to be present when your Lordships debated the Second Reading of the Bill. Had I been present, I should have offered the Bill a qualified welcome. That qualification would be in relation to the inclusion of Clause 1(3). Although the noble Earl, Lord Russell, may be right that we cannot bind our successors—to my knowledge that has never been resolved—it is perfectly clear that that was the intention of the subsection.

Perhaps I may share my anxieties with the Committee. I have spent a political lifetime with the non-governmental organisations concerned with human rights. They are not all academics and I am not sure that most of them would claim to be intellectuals. People working for those organisations care about what happens to individuals. I have always believed, with them, that a government should observe certain standards in their dealings with their own citizens. I believe that those standards should embody consensus across a region if not, yet, across the whole globe.

We have that. All the citizens of this country now have the rights set out in the convention. The only question is how they are to be enforced. Is it necessary to go to Strasbourg, with all the delay, expense and inconvenience that that entails? Or is it possible for those rights to be enforced in the courts of this country? Clearly that is in the interest of the citizen and I believe that it is in the interests of the Government because we can then decently dispose of our in-house washing without too great a public performance. Therefore, up to that point, I am totally with the noble Lord, Lord Lester.

But we must reflect what we are doing when we designate a principle as a human right and afford it a special protection. First, we withdraw it from the normal political process. In a representative democracy, the usual way to resolve issues is by the political process. They are debated and, if necessary, the people make a decision on those issues at the polls. I do not suggest that the majority is always right. Sometimes majorities are wrong. Sometimes they are prejudiced and sometimes they are cruel. I stand to be corrected by the noble Earl, but I do not believe that history offers us many examples of where an oligarchy, an elite, a group of Platonic philosophers or even lawyers have proved to be more just, fair or right than the majority. Normally, where there is an issue, I believe that it should be resolved by the electors in a representative democracy.

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Therefore, before we embody a principle as a human right, we have to be very careful that there is a very broad and, probably, a lasting consensus about it.

There may be those who want to challenge it. They will not be able to do so in the courts because the purpose of the Bill is to provide that the courts must apply the principles as we have them. If we prevent them from addressing their arguments to the electorate, we shall have silenced those who may want us to reconsider the received wisdom. There have been occasions when they have been the prophets and the innovators. Often, too, it is those who most need the protection of human rights who most need to challenge the received wisdom of an earlier generation.

I hope that we shall not be too rigid. In view of the amendment moved by the noble Lord, quite clearly he is not proposing to be too rigid. I fully accept what the noble and learned Lord, Lord Browne-Wilkinson, said; namely, that we would not normally, in any event, wish to place ourselves in breach of the convention. It will not be very easy to change the convention, even should the time come when it ought to be changed in accordance with the needs of a changing world. We make the situation very much worse if we withdraw too wide an area from the political process.

Principles which become enshrined in human rights may sometimes be no more than the reactions of a particular generation to the political problems of that generation. I do not propose to embark upon that argument now, but I could offer examples where I believe that we may be fettered by the perfectly genuine concerns of our grandfathers who initially drafted the convention.

Human rights jurisprudence is not a petrified body of dogmatics; it must live, breath and respond to changing needs. I believe that what the noble Lord is seeking to do in the Bill is healthy: it is to give the electorate time to think again when such matters are challenged. It is to ensure that the Government direct their mind to the impact on individuals of their proposed legislation. But there is a danger—certainly if the proposed subsection is included —that the very purpose of the Bill will be defeated. In other words, it will not give people time to think again. It will ensure that they cannot do so. For that reason, I welcome the noble Lord's amendment.

As regards the amendment of the noble Lord, Lord Lester, and that of the noble Lord, Lord Campbell, like the noble and learned Lord, Lord Browne-Wilkinson, I await and reserve judgment. I shall listen carefully to the debate. I should just like to tell the noble Lord, Lord Campbell—if he will forgive me; and he knows the spirit in which I say this—that I suspect that my reasons for wanting to amend the subsection are slightly different from his. That does not matter. I promise to judge it on its merits.

Lord Donaldson of Lymington: I shall not trespass again into the question of whether I am in a minority of one or whether I am a voice crying in the wilderness, though crying my own cries as opposed to those of other people. I should like to take up the point made by the noble Earl, Lord Russell, when he said that the Bill as originally drafted did not infringe the sovereignty of

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Parliament. I accept what the noble Earl said in the sense that he said it. In a sense, it would always be open to this Parliament—or, I suppose a future Parliament—to repeal the Act. However, in terms of real property, while Parliament retained the freehold, it is quite clear that, as long as the legislation in its original form remained on the statute book, if it ever got there, a leasehold interest was being given to others. I personally regard that as an infringement of sovereignty.

Accordingly, I very much welcome the amendment moved by the noble Lord, Lord Campbell of Alloway, as far as it goes. However, the difficulty is that the convention was drafted in 1950 or thereabouts. As I understand it from such reading as I have been able to carry out, it was intended to put up a series of markers or beacons to point out to those countries which were still totalitarian in their systems of government what were the basic tenets of democracies. Necessarily, therefore, they were expressed in very general terms. Again, I can understand that the United Kingdom was prepared to support a convention which had within it a machinery which would enable the signatories to say to Ruritania, "Look, you are not conforming with the principles of democracy. In some respects, perhaps in many respects, you remain a totalitarian regime". I can understand the need in that context for a commission and a court of human rights.

However, the problem which now arises is that the European Court of Human Rights and the commission seem to be approaching the convention on the footing not that it lays down broad principles, not that it shows in general terms what are the indicia of a democratic system of government, but that it is something in the nature of an international statute, which, when construed, will lay down precise rules which must be observed if we are to claim, first, to be honouring the convention and, secondly—and, perhaps, more broadly and more importantly—to be a democratic nation. I cannot accept that.

I would be quite happy if the convention were incorporated into United Kingdom law to be taken into account when construing statutes. I would have a little more difficulty —but not all that much—with the concept of somehow grafting it on to the common law. That would probably follow automatically if it were incorporated into English law. However, I would regard it as essential that we should be able to develop the meaning of the convention in an English context in our own way. I would not expect the French to develop and apply the convention in the same way in their own country; or, indeed, the Dutch, the Belgians, the Norwegians or anyone else. They have different cultures and different historical backgrounds. No doubt their approach would be the same in broad principle, but in detail it might well be different, and properly so.

My difficulty with the amendment all along has been the words,

    "so that effect may be given to them"—

that is, the convention—

    "in any legal proceedings in the United Kingdom in accordance with the principles established by the jurisprudence of the European Court of Human Rights".

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That is what sticks in my gullet. I do not believe that that was ever the intention of the founding fathers of the convention. However, it is useless for me to propose any amendments here because, at this stage, that would involve a breach of the treaty by the United Kingdom. All I can do is to express the minority hope—I am sure—that Her Majesty's Government will in due course, having explained the point with care to our partners in the convention, withdraw from the convention, re-enacting it in English law while explaining that we support it completely but we must be allowed to apply it into our own nation in our own way, in our own context and in the light of our own history. As pointed out by the noble and learned Lord, Lord Archer, we must let the people have a say and not 27 judges in Strasbourg, only one of whom is English.

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