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Addington, L.
Alderdice, L.
Archer of Sandwell, L.
Ashley of Stoke, L.
Bath, M.
Beaumont of Whitley, L.
Berkeley, L.
Blackstone, B.
Blease, L.
Borrie, L.
Brooks of Tremorfa, L.
Bruce of Donington, L.
Callaghan of Cardiff, L.
Calverley, L.
Carlisle, E.
Carmichael of Kelvingrove, L.
Carter, L.
Clancarty, E.
Cledwyn of Penrhos, L.
Clinton-Davis, L.
Cobbold, L.
Cocks of Hartcliffe, L.
Craigavon, V.
Currie of Marylebone, L.
Dahrendorf, L.
Darcy (de Knayth), B.
Davies, L.
Dean of Beswick, L.
Dean of Thornton-le-Fylde, B.
Desai, L.
Donaldson of Kingsbridge, L.
Donoughue, L.
Dormand of Easington, L.
Dubs, L.
Eatwell, L.
Ewing of Kirkford, L.
Ezra, L.
Falkender, B.
Falkland, V.
Farrington of Ribbleton, B.
Fitt, L.
Freyberg, L.
Gallacher, L.
Geraint, L.
Glasgow, E.
Glenamara, L.
Gould of Potternewton, B.
Graham of Edmonton, L. [Teller.]
Grantchester, L.
Greene of Harrow Weald, L.
Gregson, L.
Grey, E.
Hampton, L.
Hamwee, B.
Hanworth, V.
Harris of Greenwich, L. [Teller.]
Haskel, L.
Hayman, B.
Healey, L.
Henderson of Brompton, L.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Holme of Cheltenham, L.
Hooson, L.
Howell, L.
Howie of Troon, L.
Hughes, L.
Hutchinson of Lullington, L.
Hylton, L.
Jay of Paddington, B.
Jeger, B.
Jenkins of Hillhead, L.
Jenkins of Putney, L.
Judd, L.
Kilbracken, L.
Lawrence, L.
Lester of Herne Hill, L.
Lockwood, B.
Longford, E.
Lovell-Davis, L.
McIntosh of Haringey, L.
Mackie of Benshie, L.
McNair, L.
Mallalieu, B.
Mar and Kellie, E.
Mason of Barnsley, L.
Merlyn-Rees, L.
Meston, L.
Methuen, L.
Molloy, L.
Monkswell, L.
Morris of Castle Morris, L.
Murray of Epping Forest, L.
Nathan, L.
Nicol, B.
Norton, L.
Ogmore, L.
Paul, L.
Perry of Walton, L.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prys-Davies, L.
Ramsay of Cartvale, B.
Rea, L.
Richard, L.
Robson of Kiddington, B.
Rochester, L.
Rodgers of Quarry Bank, L.
Rogers of Riverside, L.
Russell, E.
Sainsbury, L.
Sandwich, E.
Sefton of Garston, L.
Serota, B.
Sewel, L.
Shepherd, L.
Smith of Gilmorehill, B.
Stoddart of Swindon, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Taverne, L.
Taylor of Blackburn, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomson of Monifieth, L.
Thurso, V.
Tordoff, L.
Turner of Camden, B.
Wallace of Coslany, L.
Wallace of Saltaire, L.
Warnock, B.
Wedderburn of Charlton, L.
Whaddon, L.
Whitty, L.
Wigoder, L.
Williams of Crosby, B.
Williams of Elvel, L.
Williams of Mostyn, L.
Aberdare, L.
Abinger, L.
Addison, V.
Aldington, L.
Alexander of Tunis, E.
Allenby of Megiddo, V.
Ampthill, L.
Anelay of St. Johns, B.
Annaly, L.
Ashbourne, L.
Astor, V.
Attlee, E.
Balfour, E.
Beaverbrook, L.
Belhaven and Stenton, L.
Belstead, L.
Bethell, L.
Biddulph, L.
Birdwood, L.
Blatch, B.
Brabazon of Tara, L.
Brentford, V.
Brigstocke, B.
Brougham and Vaux, L.
Buchan, E.
Buckinghamshire, E.
Burnham, L.
Butterfield, L.
Byford, B.
Cadman, L.
Campbell of Alloway, L.
Campbell of Croy, L.
Carnegy of Lour, B.
Carnock, L.
Carr of Hadley, L.
Chadlington, L.
Charteris of Amisfield, L.
Chelmsford, V.
Chesham, L. [Teller.]
Clanwilliam, E.
Clinton, L.
Cochrane of Cults, L.
Colwyn, L.
Cornwallis, L.
Courtown, E.
Cox, B.
Craig of Radley, L.
Cranborne, V. [Lord Privy Seal.] Crickhowell, L.
Cumberlege, B.
Davidson, V.
De Freyne, L.
Dean of Harptree, L.
Denbigh, E.
Derwent, L.
Dilhorne, V.
Dixon-Smith, L.
Dudley, E.
Eccles of Moulton, B.
Eden of Winton, L.
Ellenborough, L.
Elliott of Morpeth, L.
Elton, L.
Feldman, L.
Ferrers, E.
Flather, B.
Gainford, L.
Gainsborough, E.
Geddes, L.
Gisborough, L.
Gladwyn, L.
Goschen, V.
Gray, L.
Gray of Contin, L.
Hacking, L.
Hardinge of Penshurst, L.
Harmsworth, L.
Harris of High Cross, L.
Harris of Peckham, L.
Hayhoe, L.
Hemphill, L.
Henley, L.
Hesketh, L.
HolmPatrick, L.
Hood, V.
Hooper, B.
Hylton-Foster, B.
Inchcape, E.
Inchyra, L.
Inglewood, L.
Ironside, L.
Jakobovits, L.
Jeffreys, L.
Jenkin of Roding, L.
Kenilworth, L.
Kenyon, L.
Kimball, L.
Kingsland, L.
Kinnoull, E.
Knutsford, V.
Laing of Dunphail, L.
Lane of Horsell, L.
Lauderdale, E.
Leigh, L.
Liverpool, E.
Long, V.
Lucas, L.
Lucas of Chilworth, L.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
MacFarlane of Bearsden, L.
Mackay of Ardbrecknish, L.
Mackay of Clashfern, L. [Lord Chancellor.] Mackay of Drumadoon, L.
Macleod of Borve, B.
Marlesford, L.
Massereene and Ferrard, V.
Merrivale, L.
Mersey, V.
Miller of Hendon, B.
Milverton, L.
Montrose, D
Mottistone, L.
Mountevans, L.
Mowbray and Stourton, L.
Munster, E.
Murton of Lindisfarne, L.
Newall, L.
Nickson, L.
Northesk, E.
Onslow, E.
Oxfuird, V.
Palmer, L.
Parkinson, L.
Peel, E.
Pender, L.
Peyton of Yeovil, L.
Pilkington of Oxenford, L.
Platt of Writtle, B.
Quinton, L.
Rawlings, B.
Rennell, L.
Renton, L.
Renwick, L.
Romney, E.
Rotherwick, L.
Saatchi, L.
St. Davids, V.
St. John of Fawsley, L.
Saint Oswald, L.
Saltoun of Abernethy, Ly.
Sanderson of Bowden, L.
Seccombe, B.
Sempill, L.
Shrewsbury, E.
Skelmersdale, L.
Soulsby of Swaffham Prior, L.
Stevens of Ludgate, L.
Stewartby, L.
Stockton, E.
Strathcarron, L.
Strathclyde, L. [Teller.]
Sudeley, L.
Swinfen, L.
Swinton, E.
Taylor of Warwick, L.
Tebbit, L.
Tenby, V.
Teviot, L.
Teynham, L.
Thomas of Gwydir, L.
Torrington, V.
Trefgarne, L.
Trumpington, B.
Vivian, L.
Wade of Chorlton, L.
Wakeham, L.
Weatherill, L.
Westbury, L.
Wharton, B.
Whitelaw, V.
Wilcox, B.
Wise, L.
Wynford, L.
Resolved in the negative, and Motion disagreed to accordingly.
6.25 p.m.
Lord Lester of Herne Hill: My Lords, I beg to move that this Bill be now read a second time.
In October 1950, the Lord Chancellor, Lord Jowitt, sent a memorandum to his Cabinet colleagues in the Attlee Government about the European Convention on Human Rights explaining why he regarded ratification of the convention as a regrettable political necessity. The Lord Chancellor concluded his memorandum by pointing out that the Government:
- "shall have to bring in legislation applying the conditions of the Convention to our domestic law".
The main object of the present Bill is to give effect in our domestic law to the rights, freedoms and duties set out in the convention and its first protocol, which are already binding in international law upon the United Kingdom--upon our Parliament, executive, judiciary and other public authorities.
The main reason for incorporating the convention into UK law is to ensure that there are speedy and effective remedies in our own courts for breaches of the fundamental rights and freedoms enshrined in the convention--rights and freedoms which are the birthright of the people of this country and which are universal in the sense that they are inherent in our common humanity.
The incorporation of the convention and the enactment of a modern Bill of Rights have been part of Liberal and Liberal Democrat policy for decades. Indeed, it was in July 1969 that my noble friend Lord Hooson introduced in another place a Bill of Rights Bill drafted by my friend, Mr. John-Macdonald QC.
The history of the campaign over almost three decades is fully described by Professor Michael Zander in the recently published fourth edition of his very useful book, A Bill of Rights?. I am very sorry that the noble and learned Lord, Lord Scarman, is unable to be present this evening, for he has given such dedicated and inspiring leadership on the need for effective constitutional protection of the basic human rights and freedoms guaranteed by the convention. I also deeply regret that the untimely death of Lord Rippon of Hexham has deprived the House of a wise and long-standing supporter of this measure and of other long-overdue measures of constitutional reform.
It is two years since my previous Human Rights Bill was given a Second Reading, on 25th January 1995. I gave a very full account in my speech on that occasion of the relevant history and background, which I shall not now repeat. The Bill was given an unopposed Second Reading, as is the custom of this House. But such was the strength and depth of the Government's hostility to the measure that, when a wrecking amendment was moved at Report stage, three Ministers voted for the wrecking amendment.
It was, and remains, curious that a Government so conspicuously lacking in enthusiasm for either European court, should be so implacably hostile to any attempt to empower British courts to give direct effect to a convention drafted by British lawyers on the basis of traditional common law concepts. It is an irony of political history that that should be so, for Winston
Churchill and David Maxwell Fyfe, later the Lord Chancellor, Lord Kilmuir, were in the vanguard in the making of the convention. One might have supposed that a Conservative government concerned about the incoming tide of European law would be eager for our own judges to be able to give effective domestic remedies for the misuse of state power, rather than to compel British citizens to have recourse unnecessarily to European judges in Strasbourg for want of effective remedies in our own courts. One would have thought that the Government would want British judges to have a strong influence on the developing case law of the Strasbourg Court.But successive Conservative governments over the past 18 years have refused to introduce a citizen's charter of constitutional rights and freedoms, and unfortunately I have no reason to suppose that the Minister will be any more sympathetic to my new Bill than the Government were to the many previous attempts by noble Lords of Conservative and other political persuasions in this House, including, for example, the noble Lord, Lord Broxbourne.
However, I dare to hope that a new government soon to be elected, with the right honourable Tony Blair as Prime Minister, will speedily introduce, and that the next Parliament will speedily enact, a measure to make the convention a part of our fundamental law, as an important first step towards the making of a modern British Bill of Rights. I am delighted to see the noble and learned Lord, Lord Archer of Sandwell, in his place and I look forward to hearing what he will say about that from the Labour Front Bench.
This debate gives the House an opportunity--almost on the eve of a general election crucially important to those of us in the Opposition parties who seek to renew our democratic system of government--to discuss for the first time a measure modelled on the New Zealand Bill of Rights Act 1990. Previous versions, both mine and others, have been modelled more upon the European Communities Act and the Canadian Charter of Rights. I have chosen the New Zealand model because of the powerfully persuasive advice given during the debates two years ago, notably from the Cross-Benches, by some of our most senior and eminent judges. I believe the present version to have the best prospect of winning widespread cross-party, Cross-Bench and senior judicial approval, without challenging the English doctrine of parliamentary sovereignty and without significantly diluting the practical value of incorporation.
Responsibility for the content of the Bill is mine alone, but I should like to express my gratitude to Sir Kenneth Keith, former chairman of the New Zealand Law Reform Commission and a member of the New Zealand Court of Appeal, who played a crucial role in the making of the New Zealand Bill of Rights Act and who has given me the benefit of his knowledge and experience in some respects in improving upon the Bill that was enacted in New Zealand.
Unlike the previous version, the present Bill does not require or empower the courts to strike down provisions of Acts of Parliament which are plainly in conflict with
the human rights and fundamental freedoms guaranteed by the convention. Instead, Clause 1(4), like Section 6 of the New Zealand Act, provides that, whenever an enactment can be given a meaning that is consistent with convention rights, that meaning shall be preferred to any other meaning.I have taken another leaf out of the New Zealand statute book. Clause 3 requires Ministers, when introducing Bills into Parliament, to explain why a provision is, or appears to be, inconsistent with convention rights. This will enable Parliament to be properly informed so that it can act effectively as constitutional watchdog in enacting and scrutinising primary legislation. It will also mean that, in the absence of a Minister's notification, the courts will be able safely to assume that Parliament did not intend to repeal or amend convention rights by implication. In other words, by this device both Parliament and the judiciary will be much better informed and individual rights and freedoms will be protected against any implied repeal. In practice it will achieve what the noble and learned Lord, Lord Taylor of Gosforth, suggested during the Second Reading debate two years ago--namely, that Parliament could expressly but not impliedly override the provisions of the convention if an exceptional need arose.
I can think of few cases, during the past 30 years since the United Kingdom accepted the jurisdiction of the European Court of Human Rights in individual cases, in which a breach of the convention has been found to have occurred because of a patently inconsistent provision in an Act of Parliament. Breaches have usually arisen either from the exercise of administrative discretion under broad statutory powers--for example, in preventing prisoners from corresponding with Members of Parliament--or from the manner in which the courts develop the common law--for example, by giving too little weight to freedom of speech in the Thalidomide or Harman or, if the noble and learned Lord, Lord Donaldson, will forgive me, the Spycatcher cases.
I would hope and expect that the circumstances in which a government wished to introduce primary legislation inconsistent with convention rights would be rare, and that the requirement of having to make the position clear to Parliament would deter Ministers from doing so. However, as I have explained, the Bill does not attempt to fetter the rights of a future Parliament to legislate inconsistently with the convention, provided that the Government's intentions have been expressly made clear. In such exceptional cases--and only in such exceptional cases--the remedy for a breach of the convention by Parliament would, as at present, be by recourse to the European Court of Human Rights.
That means that European Convention law would to that extent have a weaker status in UK domestic law than does directly effective European Community law. I will be criticised by purists for having sold the past in that respect. I accept that that is not strictly logical as a matter of principle, especially as there are already cases in which our courts may be required by the European Communities Act 1972 to set aside provisions in Acts of Parliament which are inconsistent with Community
law read with convention law. However, I do not believe that the effective legal protection given by the Bill will be seriously eroded by this pragmatic concession to political expediency.If the courts were to interpret the present measure loosely, or if Parliament were habitually to enact legislation with the express intention of breaching convention rights, it would be necessary to legislate more strongly, so as to place our courts in the same position as courts in other Commonwealth countries when interpreting their written constitutional guarantees of human rights. However, I have confidence in the willingness and ability of our judiciary to make legislation of this kind effective. I pay tribute to the enlightened way in which the judiciary have done their best, in the absence of incorporating legislation, to give full faith and credit to the convention when interpreting and applying our written and unwritten laws. I would hope that Ministers, of whatever political colour, would feel greatly inhibited from having to certify to Parliament that proposed legislation would violate the minimum standards of the European human rights code.
Clause 1(2) of the Bill requires the courts to interpret the common law in accordance with convention rights. They already do so, most notably perhaps in the Derbyshire County Council case, where the Court of Appeal held that it would unnecessarily interfere with the right to free expression if government bodies were permitted to sue for libel on their governing reputation without proof of bad faith or special damage. The House of Lords went further, holding that the common law matched the guarantee of free expression in Article 10 of the convention.
The Bill will enable everyone to rely upon convention rights through the ordinary courts and tribunals. Clause 1(3) makes clear that it will apply to acts done by or for Ministers and to any person or body performing a public function, as distinct from persons acting in a private capacity.
Unlike my previous version, the Bill does not seek to create a general right to damages for breach of statutory duty. Clause 2 gives the courts the power to fashion remedies flexibly according to the justice of the case, including, where appropriate, the remedy of compensation.
Where a breach of the convention involves tortious conduct, the courts will be able to award common law damages. There will be cases where public officers and bodies, acting under cover of law, will breach the convention in circumstances amounting to a government tort, an extension of the existing tort of misfeasance in public office. Suppose, for example, that the police were to misuse statutory powers to carry out electronic surveillance of a newspaper or its lawyers' offices in connection with possible breaches of official secrecy or criminal contempt laws by the newspaper or a disloyal "whistle-blower" civil servant. If such an abuse of power were to occur, for example, in circumstances which were for an improper purpose or where, knowingly, in breach of the convention right to respect for personal privacy, or of the right to free expression, then the courts would be able to award damages.
Derogations from the convention in time of war or public emergency will be required by Clause 5 to be clearly framed and expressly authorised by Parliament.Clause 5 also enables the Secretary of State to amend Schedule 1 to include provisions of other convention protocols which may be ratified. There are several additional protocols which have been ratified by many other major member countries of the Council of Europe but which the present Government have refused to ratify. If I may say so, I have better hopes of a future government.
One very important matter is excluded from the Bill because of its nature as a Private Member's Bill; namely, provision to secure effective access to justice. Once the convention is incorporated into UK law, anyone complaining of a breach of the convention will be required to exhaust all available domestic remedies all the way to the Appellate Committee of this House. I believe it is essential that there should be adequate and well targeted provision for legal advice and assistance in such cases. That would help citizens advice bureaux, local law centres and specialised public interest groups to bring test cases. I would hope and expect that a government Bill, as distinct from a Private Member's Bill, to incorporate the convention would create a human rights commissioner or commission to provide such advice and assistance and be able itself to bring proceedings, whether by judicial review or by representative proceedings on behalf of a number of people with a sufficient legal interest. That already happens with the two equal opportunities commissions and the Commission for Racial Equality. Quite small sums are spent in that way under their budgets, never in my experience more than a couple of hundred thousand pounds a year, for example, in the case of the EOC for Great Britain.
Indeed, I would hope and expect the next government to give effect to the very important recommendation made by the noble and learned Lord, Lord Woolf, in the final report Access to Justice, that, where proceedings are brought in the public interest, the courts should have a discretion not only to order that each side should bear its own costs but that the taxed costs of the applicant should be paid out of public funds. If that strikes someone as novel, a similar proposal was made by Lord Evershed's committee in 1953 (Command Paper 8878).
I submit that almost half a century after the United Kingdom became the first country to ratify the convention and 30 years after the United Kingdom accepted the jurisdiction of the European Court of Human Rights, the time is over-ripe to domesticate what are or should be British civil rights and liberties and to bring them home to British courts in a way that ensures effective access to justice. I beg to move.
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