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Lord Woolf: I hesitate to add to the learning which has already been displayed on the subject by many noble Lords. However, I do so for two reasons. First, I believe that it is most important for us to appreciate the nature and effect of the proposed amendments. As I see it, both the amendment moved by the noble Lord, Lord Campbell of Alloway, and that tabled in the name of the noble Lord, Lord Lester of Herne Hill, achieve the same result. There is indeed a difficulty in making the selection as to which is preferable. That is a matter to which I shall return in a moment.

Secondly, the advantage of these amendments is that they retain the freehold of parliamentary sovereignty, albeit all that would have been dispensed with otherwise would have been the leasehold, as indicated by the noble and learned Lord, Lord Donaldson. But that is, as he indicated, an important distinction. I welcome these amendments because they avoid the consequences which follow from Parliament inadvertently infringing the Convention on Human Rights where there was no intention to do so because, as often happens with legislation, the exact consequences of that legislation are not foreseen.

The result of having these amendments is that Parliament will retain the right to make it clear that in respect of specific legislation it intends that legislation to prevail over the convention. If it does not do so, when it comes to the courts to construe that legislation, as the amendments make clear, it is the courts' task to try to construe that legislation so far as possible consistently with the convention. It seems to me that that is a happy result. It complies with our treaty obligations and it follows a precedent which has been taken in other parts of the world, in particular in New Zealand and at one stage in Canada, where the very same device was used, not surprisingly in countries which had a similar constitutional tradition to our own.

I therefore have no hesitation in supporting both amendments. When it comes to choosing between the amendments I will merely say this. It seems to me that the solution devised by the noble Lord, Lord Lester, is the one to be preferred because it makes most clear the task of the courts when it comes to construing enactments whenever passed in the light of the convention. It also has the advantage that it is shorter, and that is always something to be desired in a situation of this sort. I merely add this, that whereas the noble

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and learned Lord the Lord Chief Justice did not have the opportunity of considering the precise language of these two amendments when he spoke on the Second Reading of this Bill he expressed two reservations. One of the reservations is met by either of these amendments and he has authorised me to say on this occasion that he would endorse the spirit of these amendments.

8.30 p.m.

Lord Williams of Mostyn: I am grateful for the illumination which the noble and learned Lords, Lord Browne-Wilkinson and Lord Woolf, have shed upon this. I have not myself seen a perfect alternative as between Amendment No. 2 in the name of the noble Lord, Lord Campbell of Alloway, and Amendment No. 4 in the name of the noble Lord, Lord Lester of Herne Hill. I still, respectfully, am of the view that they are not perfect alternatives. If they were to be alternatives, I for my part would strongly, for the reasons given by the noble and learned Lord, Lord Woolf, support Amendment No. 4 rather than Amendment No. 2.

Baroness Blatch: I am grateful to my noble friend Lord Campbell of Alloway and indeed to the noble Lord, Lord Lester of Herne Hill, and also to the noble Lord, Lord Cocks of Hartcliffe, who has given his explanation as to why he will withdraw his own amendments. At the outset I refer to the Welch judgment, which was referred to by the noble Lord, Lord Cocks. The Government are considering carefully the implications of the judgment delivered by the European Court of Human Rights in respect of Peter Welch. The Welch case turned on the narrow point of whether a confiscation order under the Drug Trafficking Offences Act 1986 was a penalty and could not therefore be applied where offences were committed before the Act came into force.

I can assure the Committee that the Government had no intention of creating a retrospective penalty. It may be tempting to say with hindsight that the outcome of the case was obvious but we certainly cannot say with any certainty that the domestic courts would have found for Mr. Welch in this case if they had been able to apply the convention.

It is interesting to note that the European Commission on Human Rights was evenly divided on the issue of whether a confiscation order was indeed a penalty. Had the domestic courts found against Mr. Welch, he would of course in any event have been able to take his case to the Strasbourg courts.

I believe the amendments betoken a recognition of the force of the Government's arguments in respect of the effects of incorporation upon the carefully balanced relationship between Parliament and the courts which lies at the heart of our tradition of parliamentary supremacy. But these amendments, although preferable in many respects to the original proposals in this Bill, do not allay the Government's anxieties on this point.

The Government's concern is that, in construing parliamentary enactments, the courts should look at the words of those enactments first, and only in the case of ambiguity should they look to see which of the possible meanings is consistent with the UK's international

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obligations. The amendments to Clause 1 under discussion would each (albeit in slightly different ways) increase the number of occasions in which the courts would be entitled, and indeed obliged, to look at the convention before deciding how the words of an enactment should be interpreted, even if those words are clear and unambiguous. In the Government's view, where the words of Parliament are clear, they should be given effect to by our courts.

As far as subordinate legislation is concerned—a matter to which the noble and learned Lord, Lord Browne-Wilkinson, paid particular attention at Second Reading—the courts already give the most careful scrutiny to whether such delegated legislation is within the powers given by an Act of Parliament. They can, and indeed do, strike it down if it goes beyond what Parliament intended. Should the courts be permitted to go further than this and strike down subordinate legislation because, in their view, it offends against the principles of the convention even though it is within the powers given by Parliament and even though it has in all probability been approved by Parliament under either the negative or affirmative resolution procedure? In the Government's view, the courts should not have such powers.

There is a further danger in interpreting domestic legislation, old or new, by reference to the convention. The interpretation of the rights and freedoms set out in the convention and the jurisprudence of the European Court of Human Rights and the commission is by its nature an evolving process. It is well recognised, not least by the Strasbourg court, that the interpretation of the convention will alter over time as social and political attitudes change. The noble and learned Lord, Lord Archer of Sandwell, made reference to the difficulty of making changes where the social and political attitudes change over time. In the Government's view, it is for Parliament to decide how best to respond to those changes, not for the judges to decide that domestic enactments, whenever passed, must now be interpreted so as to accord with developments in current European social policy.

In short, the Government consider that, even with one or other of these amendments, the Bill would amount to a significant change in the current position in providing for the convention to be litigated in the courts where now it may not be. For the reasons set out in my speech at Second Reading, the Government do not consider that such a change is necessary in order to secure the rights and freedoms protected under the European Convention on Human Rights. Nor do we believe that it would enhance the enjoyment of those rights and freedoms in this country.

As I said at col. 1166 of Hansard of 25th January at Second Reading, the arithmetic is interesting when one compares the UK's record with that of those countries which have incorporated the ECHR. We compare favourably with others in that respect. It is true that there is no diminution of the protection of our citizens both as regards the national law and indeed the European

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Convention on Human Rights. Accordingly, the Government could not possibly support either of these amendments.

Earl Russell: Before the noble Baroness sits down, could she confirm that, since Parliament is sovereign, Parliament has the right to pass this Bill if it wishes?

Baroness Blatch: I confirm that absolutely. This Parliament is entirely free to pass this law, as many other countries have incorporated the ECHR into their own national law. It is entirely a matter for this Chamber and another place to do the same.

Lord Campbell of Alloway: If no other Member of the Committee wishes to speak—

Lord Lester of Herne Hill: Perhaps I may explain to the Committee some of the background to these two amendments.

Lord Campbell of Alloway: Order! Surely at this stage I should respond. I apologise, we are in Committee.

8.45 p.m.

Lord Lester of Herne Hill: As I understand it, it is appropriate for me to speak to the amendment which has been tabled by the noble Lord, Lord Campbell of Alloway, and at the same time to indicate how it differs from Amendment No. 4, to which I should also like to speak at this stage.

The Committee will know that the purpose of the Bill, as its title indicates, is to incorporate Section 1 of the European convention into the law of the land—that is the central purpose of the Bill—and to put our courts into the position of being able to give decisions locally with recourse being had to the European Court of Human Rights only in the last resort and not at first recourse.

Paragraph (b) of the amendment of the noble Lord, Lord Campbell, dealing with the common law is already covered by the existing Clause 1(1) and (2) of the Bill. I remind the Committee that Clause 1(1) incorporates into the law of the United Kingdom the schedule provisions and gives them full legal effect in accordance with this Act. Clause 1(2) provides that the schedule provisions shall have effect notwithstanding any rule of law to the contrary.

Pausing there, the intention—and I hope the effect—of Clause 1 is to ensure that the convention becomes part of the common law and is taken into account. That applies to law and equity.

Clause 1(3) in its unamended form is similar in its object to Section 2(1) and (4) of the European Communities Act 1972. It is a very strong provision. It commands the courts to construe all existing and future legislation in accordance with the convention and to set aside any inconsistent provisions. Therefore, Clause 1(3) in its present form is a lion rather than a mouse. As the noble and learned Lord, Lord Browne-Wilkinson, indicated, it would have the effect of empowering the

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courts to strike down or set aside inconsistent legislation, as they already do in the case of statutes which conflict with European Community law.

I listened very carefully to the much more learned and wiser voices at Second Reading. I also listened carefully to the speech in reply made by the noble Baroness the Minister. It seemed to me on reflection that the wise course was to seek the widest possible consensus across the Chamber for the Bill and to remove any conceivable rational objection to the Bill in the form in which it would leave this Chamber. It is for that reason that I entirely agree with the noble Lord, Lord Campbell of Alloway, and all Members of the Committee who have spoken that it would be right to delete Clause 1(3) and to substitute a weaker provision.

The question then is: what is the most appropriate weaker provision? The gap which Clause 1(3) in its unamended or amended form seeks to fill is the gap created by the decision of the House of Lords in the Brind case. In that case, the House of Lords decided that where broad ministerial powers are conferred by Parliament it would be usurping the role of Parliament if the courts were to interpret those powers subject to and in accordance with the convention rights and freedoms. In effect, the Law Lords decided that only an ambiguity in legislation would authorise judges to apply the convention.

That is the gap which a weaker form of Clause 1(3) seeks to fill. It would authorise the courts to interpret all legislation in accordance with the convention unless the context requires otherwise. It would fill the Brind gap. The gap that would not be filled by the weakening of the Bill would be the gap exposed, for example, by the Welch case concerning the retrospective confiscation of profits from drugs. In that case the problem is that the statute itself requires the courts to exercise their powers in a retrospective way. Therefore, if either of the candidates for amendment is accepted by the Committee it will follow that in the Welch case and similar cases where the statute cannot be read subject to the convention the only remedy will continue to be recourse to the European Commission and the Court of Human Rights.

I believe that we should accept that limitation. We would not achieve perfect incorporation but something less. We would be leaving it to Parliament to pass inconsistent legislation and the only remedy would be a European remedy thereafter.

I come to the question of which of the amendments might better achieve the object which I believe the noble Lord, Lord Campbell of Alloway, and I and all other Members of the Committee who have spoken except the Minister have in mind; that is, to seek so far as we can to authorise our courts to give effect to the convention locally and make it unnecessary to do so on the international plane.

I hope that the noble Lord, Lord Campbell, will forgive me if I say that I do not believe that subsection (3) of his amendment is a necessary part of the amendment. That would follow as a matter of course in any event. I believe that subsection (b) is already

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covered by the earlier provisions of the Bill as they stand. Paragraph (a) of the amendment is ambiguous. It merely states that the provisions in the Schedule shall:

    "serve as an aid to the construction of primary and secondary legislation".

It does not say how. It leaves that utterly ambiguous. As noble Lords who are judicial or legal in their learning will know, the courts already use the convention as an aid to the construction of primary and secondary legislation where there is an ambiguity, but not otherwise. I believe that in Scotland they do not use it as an aid to ambiguity, either. So the amendment of the noble Lord, Lord Campbell of Alloway, would amend the position in Scotland. I do not believe that by itself it would overrule the decision in Brind or make clearer what the interpretation rules should be.

Amendment No. 4 is based upon what is already to be found in the New Zealand Bill of Rights Act. It is expressed more precisely than the New Zealand provision, but it makes clear that the sovereignty of Parliament is preserved in the sense that, where the context does not permit, the courts must give effect to the legislation and not to the convention. In that rather special use of the word "sovereignty" the sovereignty of Parliament is preserved.

However, the effect of Amendment No. 4 is, I hope, to make quite clear that, except where there is a clear inconsistency, the courts will construe existing or future legislation consistently with the rights which we have defined in Schedule 1. Given that the noble Lord, Lord Campbell of Alloway, and I have exactly the same objectives, as I understand it, I very much hope that he will feel able to withdraw his amendment in order that we may make common cause on this important part of the Bill.

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