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Lord Renton: My Lords, I did not intend to intervene in what I hoped would be a very short debate. However, as the noble Earl, Lord Russell, was kind enough to refer to me, the least I can do is to support him; and, for the reasons that he gave, I gladly do so. I do not believe that there is any other occasion in our statute law in which we say that the provisions of a particular subsection shall,
Presumably that means the whole of our statute law and of the subordinate law made under it. Quite frankly, I think that that is a remarkable proposition which no person with experience in the interpretation of our laws could possibly accept.
Lord Scarman: My Lords, the amendment was moved with eloquence. As I listened to the noble Lord, I felt that he really believed that, if the amendment became law, it would clarify the law and rescue it from the hands of those nasty foreigners across the Channel. However, that is not the position at all. Whatever may be the intention of the noble Lord who moved it, it is a wrecking amendment. It takes the guts out of the Bill. But what are the guts of the Bill? They are that we should ensure that those men, women and children who live in this country and suffer an infringement of their human rights should have a remedy in this country in British courts. The amendment would, in fact, leave the law in precisely the same, but a slightly more muddled, condition than it is today.
If one looks at the judgments of their Lordships over a period of quite a long time, it will be seen that the sort of language which is used in the amendment finds its echoes in the words: "This is as far as we can go, but we can get no further". It is important that we should make available to every British citizen a remedy in this country if he thinks that his or his children's human rights have been infringed. That is precisely what the Bill provides. It is for that reason that we must haveand this has been said beforethe words of Clause 1 in the Bill as follows:
I have one further comment to make. One sometimes forgets that the European Convention assumes that there will be a national remedy available to the citizens of the countries which are party to it. For those who wish to know, I have in mind Article 13 of the convention. It assumes that the first remedy is with authorities similar to courts, if not the courts, but, nevertheless, in the courts of the country concerned. We do not have that provision now except on occasions by the ingenuity of the judges who manage to try to get as near as they can to legal incorporation. I say no more except that it would be a disaster if this amendment, however elegantly put forward, should be accepted.
Lord Slynn of Hadley: My Lords, I support completely the thrust of this Bill. It is extremely important that the convention becomes part of domestic law for three very brief reasons. First, because I believe that judges in our national courts need to be able to deal with possible or alleged infringements of social and economic rights which they cannot deal with unless the European Convention is made part of domestic law. Secondly, I believe that it is right to adopt it because it seems quite absurd that many cases which could very
Thirdly, it is necessary to make this convention part of our domestic law in order that we have uniformity between national disputes and those which fall within the European Union remit. I do not believe that we shall ever achieve full and satisfactory protection of human rights until the convention is made part of domestic law.
I say that as a preliminary. This amendment will emasculate what is intended by subsections (1) to (5) of the clause. It is much more satisfactory that the provisions of the Bill as it now stands should be adopted rather than that we should adopt a provision that what is set out in subsection (1) shall merely be as an aid to construction and taken into account. It is much more satisfactory that we should follow the terms of the Bill. For those reasons, I believe that the amendment would be a step towards emasculating the overriding effect of the Bill, and I am therefore opposed to it despite the moving arguments advanced by the noble Lord.
The Minister of State, Home Office (Baroness Blatch): My Lords, these amendments appear in some respects preferable to the current Clause 1(2) and (3) in this Bill. The Government explained their position on provisions in this form at some length during the Committee stage of this Bill and in the debate on the similar amendments proposed by my noble friend Lord Campbell of Alloway who is not in his place tonight.
It may be helpful if I remind the House briefly of the Government's views on this point. The Government's position is that in construing legislative provisions, the courts should look at the words of those enactments first, and only in the case of ambiguity should they then look to see which of the possible meanings is consistent with the UK's international obligations. The amendments to Clause 1 under discussion change that position: they would enable the courts to have regard to the convention even where there was no such ambiguity. It is the Government's view that, where the words of Parliament are clear, they should be given effect to by the courts. It is not for the courts to decide that domestic enactments, whenever passed, should be interpreted so as to accord with developments in current European social policy as reflected by decisions of the court in Strasbourg. That really does constitute a shift of sovereignty.
So far as the common law is concerned, the amendment would appear to allow the courts to overturn long-established provisions where today Parliament might properly regard it as its function to change the law. The amendment would also appear to mean that challenges by way of judicial review to the exercise of discretion could pray-in-aid the convention. No Minister would set out to exercise his discretion so as to run foul of the convention; but the certainty is that there would be more applications for judicial review.
The Government consider therefore that, even with 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 and during Committee, 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.
Lord Archer of Sandwell: My Lords, it had not been my intention to intervene in this debate particularly in view of the very distinguished noble Lords who have already intervened. But it seems to me that the noble Baroness and my noble friend are labouring under a common misapprehension. They appear to believe that if this Bill were attenuated, that would somehow deprive the citizens of this country of the rights set out in the European Convention on Human Rights. That is simply not the case. The citizens of this country have those rights already. The Government of this country have ratified the convention. The only question which remains is where and how they have to go in order to enforce their rights. As the noble and learned Lords, Lord Slynn and Lord Scarman have said, the issue is whether they can do that in the readily available courts of this country or whether they have to go to Strasbourg. I have not the slightest doubt that if we were to ask any of my former constituents or those of my noble friend where they would prefer to go in order to enforce their rights, the answer would be clear. Therefore it seems to me that both the noble Baroness and my noble friend are labouring under a complete misapprehension.
It appears that neither of them is very happy with some of the decisions of the European Court on Human Rights. If it encourages them, neither am I. If it comes to that, I am not very happy with some of the decisions of the domestic courts of this country, and I doubt whether anyone is. The fact is that sometimes there are conflicts of human rights and something has to give. It may not be the particular human right which we would prefer to endorse. The alternative would simply be to say that we shall do away with human rights altogether. Knowing the noble Baroness as I do, and certainly my noble friend over as many years as I do, I cannot believe that that is their intention.
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