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Lord Mishcon: My Lords, will the noble Lord give way so that we can understand his otherwise very clear argument? Is not the declaration of incompatibility, merely a declaration, which does not make new law? It is not a matter of jurisprudence, but is merely a statement that an Act of Parliament conflicts with the convention, full stop; and it does it in a way which is impracticable. There is no judgment there.
Lord Kingsland: My Lords, first, the declaration expresses the judge's view about what is the difference between the convention and the previous statute. It does not necessarily reflect the view of the court in Strasbourg. It is therefore a home-grown judicial expression of what the law ought to be. It is not an expression of what the law of the convention is. I see that the noble Lord shakes his head and he is perfectly entitled to do so. But if the judge is making a declaration about the difference between the convention and the previous statute which is not based on the jurisprudence of the court in Strasbourg, and if his court is not bound by that jurisprudence in the future, then he must, by definition, be taking his own view about what that difference is. That view is what forms the basis for the order in council. In other words, that view is what initiates the legislation. Therefore, there is a breach of the doctrine of the separation of powers. That is the point that I make.
What is more, the legislative process which is initiated is not a full primary legislative process. It starts an order in council process. We all know that an order in council cannot be amended; and we know also that it is not usually debated, although of course in this case it will require an affirmative resolution of both Houses of Parliament. That is not proper parliamentary consideration of future legislation.
There are of course other reasons that this Bill should be looked at with great caution. Those other reasons concern the substance of the Bill. I shall not go through every clause this afternoon. The noble and learned Lord
the Lord Chancellor has drawn our attention to just one of those clauses; namely, that concerning privacy. For example, on its face, the clause on privacy poses serious problems in this country because, as we all know, the BBC is a public authority and many other companies from the television media are not. Therefore, in Article 8 there is an inherent conflict between publicly and privately provided television services.But more than that, we do not really know in which direction the judges will take us. Is that fair to the judges? Is it fair to the country, which elected the present Government, to introduce the law on privacy by the convention? It is not. The public are entitled to know exactly where they stand in relation to the law on privacy. If we are to sustain the relationship between judges and the legislature which has stood us in such good stead for so long, we need the Government to define much more carefully the framework within which the judges are to make the declarations of incompatibility; otherwise, we shall be faced with a whole raft of legislation as orders in council which was not properly authorised.
I shall not take your Lordships into any of the other clauses, but I believe that the same observations could be made with what I hope is equal force in those other areas. We must be cautious about changing our constitution which has stood us in good stead for many hundreds of years. Most other countries in the world admire it greatly. Indeed, many are very jealous of it. I do not believe that we have failed in protecting our liberties since the convention was passed, signed and ratified in 1950. I am confident that noble Lords will look at the Bill objectively, with our own constitutional principles in the forefront of their minds.
3.59 p.m.
Lord Lester of Herne Hill: My Lords, it is greatly to the credit of the Prime Minister and his colleagues that they have introduced this measure setting enforceable legal limits to their huge executive powers, securing European Convention rights in the laws of the United Kingdom and providing effective domestic remedies for breaches of convention rights by public authorities. It demonstrates a welcome commitment to democratic and accountable government and to respect for human rights under the rule of law. I congratulate the Government on this well-designed and well-drafted Bill.
The noble and learned Lord the Lord Chancellor and the noble Lord, Lord Kingsland, have been most generous in their references to my efforts. I should like to pay tribute to the great and crucial contribution of the noble and learned Lord the Lord Chancellor both when in Opposition in convincing the Labour Party of the case for incorporation and now as Lord Chancellor in helping the Home Secretary and his other colleagues to shape the Bill. Indeed, many of its provisions are stamped with his powerful and personal imprint.
There are many others whose contributions have also been remarkable. It was the noble and learned Lord, Lord Scarman, whose Hamlyn lectures, two decades ago, first made the case for a renewal of British democracy, based upon coherent constitutional
principles of citizenship and accountable government. It is excellent that the noble and learned Lord will be participating in today's debate. It was the noble Lord, Lord Higgins, whose Introduction to the House today we have welcomed, who persuaded Harold Wilson's Government in 1965 to agree to take the momentous step enabling individual cases to be brought against the United Kingdom before the European Commission and Court of Human Rights.The case for incorporation was first taken up in this House from these Benches through the indefatigable Lord Wade, building on work carried out by my noble friend Lord Jenkins of Hillhead, as Home Secretary, when he published a Green Paper in 1976. Each of my noble friends who will speak in the course of today's debate has made significant contributions to the cause. Incorporation has also traditionally been supported by distinguished Labour Lords, including Lord Gardiner and Lord Silkin of Dulwich, and indeed by distinguished Conservative Lords like the noble Lords, Lord Broxbourne, Lord Rippon of Hexham and Lord Alexander of Weedon, and the noble and learned Lord, Lord Hailsham. It is also crucially supported by the senior judiciary, led by the Lord Chief Justice and the Master of the Rolls, and the Law Lords.
However, incorporation has never been supported by the Conservative Party. I very much hope that the noble Lord, Lord Kingsland, will even yet be able to persuade his colleagues to behave less like Dr. Doolittle's curious creature, "Pushme Pullu", and to give unequivocal support for the Bill on behalf of Her Majesty's Official Opposition. It is surely incumbent on the Opposition party to inform Parliament unequivocally whether it supports or opposes incorporation, rather than hiding behind the Salisbury doctrine and abdicating its constitutional responsibility.
The rights guaranteed by the Bill are not alien; indeed, they are part of our British birthright and constitutional heritage. As we have heard, the text was drafted by British lawyers. The values that it enshrines are universal. The convention has been exported by successive British governments to become part of the written constitutions of many Commonwealth countries. The Bill does indeed bring the basic civil and political rights of everyone in this country home by allowing everyone to claim those rights against public authorities in British courts. It involves no challenge to the English dogma of absolute parliamentary sovereignty. Rather its enactment involves the much-needed exercise of parliamentary sovereignty, giving our own courts proper authority to perform their duty of interpreting and applying common law and statute law in accordance with the UK's international obligations under the convention. True to the doctrine of parliamentary sovereignty, as the noble and learned Lord the Lord Chancellor said, the courts must defer to existing and future Acts of Parliament if it is impossible to read and give effect to them in a way which is compatible with the convention.
Therefore, far from weakening Parliament's role, the Government's proposals will increase the accountability of the Executive to Parliament. The Bill does so by requiring a Minister of the Crown in charge of a Bill in
either House to make a statement before Second Reading as to his view of the compatibility or otherwise of the Bill with convention rights. That would both enhance parliamentary scrutiny and also enable the courts to ascertain whether legislation enacted after incorporation was intended to comply with or to be inconsistent with the convention. In the absence of a formally expressed intention to enact inconsistent legislation, the courts will be able to act on the basis that the legislation was intended by Parliament to be compatible with convention rights.The Government also propose to strengthen Parliament's role in another way; namely, by supporting the creation of a new parliamentary committee on human rights, whether a joint committee or of each House. Its functions will presumably include scrutinising proposed legislation in each House, as well as UK compliance with the various international human rights codes and keeping the working of the new Act under review. That proposal was put to the previous Government by a coalition of the noble Lord, Lord Alexander of Weedon, the noble Lord, Lord Irvine of Lairg, the noble and learned Lord, Lord Simon of Glaisdale, and myself, without any success whatever. It is part of a much-needed holistic approach, which does not leave the task exclusively to the courts but which requires Parliament and the Executive, as well as the judiciary, to take human rights equally seriously.
The Bill will not empower our courts to strike down legislation which it is impossible to read in accordance with convention rights. But the command by Parliament in the Bill to the courts to read them in that way,
- "so far as is possible",
Every declaration of incompatibility will represent a systemic failure, as our statute book is already made to comply with our convention obligations. A declaration of incompatibility will also be highly inconvenient because it will mean that our courts are unable to provide an effective judicial remedy and that the inconsistency will have to be remedied by government and Parliament under the special fast-track legislative procedure; or, if not, it will have to be remedied by the overburdened European Court of Human Rights. That is why I believe that our courts will do everything within their power to ensure that there is no mismatch between legislation and convention rights, and why declarations of incompatibility will, in the words of the noble and learned Lord the Lord Chancellor, be "very rare".
Some have criticised the power to take remedial action by subordinate legislation as being a sinister sapping of parliamentary powers. That criticism is misconceived. At present, when a judgment of the European Court requires the amendment of primary
legislation, that can only be done by new, amending primary legislation. That is a slow and cumbersome method of complying with our international obligations. It has sometimes resulted in a tardy and incomplete implementation. Similarly, where a British court decides that there is a fatal inconsistency in a statute, what is needed is a speedy means of remedying the defect and of providing a remedy for the individual victim.Under the European Communities Act 1972 (enacted by a Conservative Government), the power to implement the UK's Community obligations may be implemented by subordinate legislation, without any requirement to obtain the affirmative approval of both Houses. But this Bill provides for stronger parliamentary control, as, except in cases of pressing urgency, the implementation of the UK's convention obligations by subordinate legislation can be done only by the affirmative procedure. To require the Government to introduce primary amending legislation to give effect to European or British judgments would be to hinder the speedy and effective implementation by Parliament of convention rights, obligations and remedies.
To turn to another important aspect, there has been misguided public pressure from the press for a media immunity from the effect of the Bill in relation to the protection of personal privacy. The chairman of the Press Complaints Commission, the noble Lord, Lord Wakeham, warned, in a somewhat uncharacteristically intemperate article in yesterday's Mail on Sunday, that this Bill could become a "villains' charter", because Article 8 of the convention contains an absolute right to respect for privacy, without any specific defence of public interest. That is simply not the case.
The convention is clear in guaranteeing both the right to free speech, as the noble and learned Lord the Lord Chancellor has made clear, and the right to respect for personal privacy without making either right absolute. Article 8(2) makes a specific exception to respect for personal privacy where necessary to protect the rights and freedoms of others, including the right to free speech. I have had the privilege of representing various newspapers, broadcasters and book publishers in British courts and in the Strasbourg Court relying on Article 10 of the convention to vindicate their right to publish and their readers' right to receive information and opinions without unnecessary interference of restraint by the common law of statute. There is no stronger advocate of free speech and a free press.
But the right to free speech, like the right to respect for one's private life, is not absolute. Its exercise may be limited in a democratic society to meet some pressing social need, including the state's positive obligation to ensure respect for personal privacy by public authorities and by the media. The European Court has repeatedly emphasised the vital role of the media as watchdog and purveyors of information on matters of public interest, including the workings of government and the conduct of politicians and public officials. The European Court has also emphasised the importance of ensuring respect for the personal privacy of oneself and one's home.
However, like the European Commission of Human Rights, the European Court has also made it quite clear that claims to personal privacy must not be allowed to defeat the vital public interest in free speech, except in cases of real necessity and where what is at stake really is the individual's private life. It has declared that prior restraints on publication call for particularly careful, strict scrutiny.
In the Fayeds' case--where, alas, I was defeated--the court made it clear that free expression is especially important in relation to the activities in the public sphere of public figures, as distinct from the private lives of private individuals. Politicians, public officials and businessmen involved in the affairs of large public companies lay themselves--stated the court--open to close scrutiny of their acts by the media.
The media should recognise that the UK has a positive obligation under the convention to secure the right to privacy in domestic law, and that our courts are likely--as has been said already--if not certain to develop a common law of privacy even without statutory incorporation. Some genuinely independent authority, I suggest, must surely perform the difficult and sensitive task of maintaining the balance between free speech and personal privacy.
I agree with the noble Lord, Lord Wakeham, that that body should be the Press Complaints Commission, whose enforcement and remedial powers need to be enhanced by the media in the interests of a free press acting in accordance with a new and strengthened code of practice. If that happens, then I believe that the development of a right of privacy, already inherent in the common law, will not lead normally to judicial intervention against the media, except in cases of real necessity if the PCC fails to secure a fair balance and to provide effective redress.
But neither the media nor the PCC should treat free speech as an absolute right, nor seek an immunity from liability for infringements of the right to privacy, as though they were above international human rights law. If the PCC lacks the necessary powers, or fails to exercise them, the courts will need to give necessary judicial protection as they do in the United States whose constitution gives primacy to free speech, but whose federal and state laws and common law also safeguard personal privacy.
The noble Lord, Lord Wakeham, is also mistaken in suggesting that courts,
- "could be forced to grant injunctions to those with something to hide simply because the right to respect for privacy in the Bill is absolute",
I have a few points of concern about some details of the Bill. First, I understand the Government's reasons for excluding Article 13 of the convention from the provisions to be incorporated; that is the provision which obliges public authorities--judicial as well as legislative and executive--to provide effective remedies for breaches of convention rights. The Government rightly consider that the Bill gives effect to Article 13 by obliging the courts, as public authorities, to comply with convention rights. Perhaps there is also anxiety within the Government that incorporation of Article 13 might lead the courts to fashion remedies beyond those specifically prescribed by the Bill.
I do not believe that there is such a danger in fact because the Bill is quite clear as to the jurisdiction of the courts and tribunals and as to the remedies which they are and are not empowered to grant. Even in the absence of incorporation, the House of Lords and the Court of Appeal have treated Article 13 as relevant to their functions in cases such as Ex parte Khan; and Brind; and Esther Rantzen. It would be a strange legal solecism if Parliament were now to exclude Article 13 altogether from being considered by the courts when acting in accordance with the functions vested in them by the Bill.
My point would be met either by including a purpose clause stating that the Bill's object is to secure convention rights and to provide effective remedies for their breach, or by amending Clause 1(1) so that the substantive rights may be read with Article 13 as well as with Articles 16 to 18 of the convention. I should be grateful if that point could be further considered before Committee.
My second concern is that Clause 7(1) confines the standing of those seeking to review the allegedly unlawful acts of public authorities to victims, as defined under the convention. That seems to me to be too restrictive and likely to result in undue procedural complexity and unfairness. Section 31(3) of the Supreme Court Act 1981, and Order 53, Rule 3, of the Rules of the Supreme Court, impose a jurisdictional requirement of "a sufficient interest" for an applicant to apply for judicial review. That test of sufficient interest, coupled with the requirement to obtain leave to apply for judicial review, and the courts' other discretionary powers, provide sufficient safeguards against any abuse of judicial review by interfering busybodies or those without a sufficient interest. I hope that the Government upon further reflection will agree that it is unnecessary and undesirable to impose a more restrictive test where what is at stake is an alleged breach of human rights rather than ordinary administrative wrongdoing.
My third concern is that the proposed remedial orders, in cases of legislative incompatibility with the convention, should be able to provide effective remedies for those whose rights have been infringed. That is a point which perhaps one might pursue further in Committee.
My final point is more substantial. It is to ensure that incorporation enhances effective access to justice. Incorporation will mean that everyone will have to exhaust his or her domestic remedies all the way
through the domestic legal system, if necessary to your Lordships' House, before having recourse to Strasbourg. If the right of access to courts, guaranteed by Article 6 of the convention, is to be real and effective and not illusory, litigants must not be unnecessarily deterred by the absence of legal aid and advice or by the risks of having to pay the legal costs of the other side.Labour's Green Paper, Bringing Rights Home, stated that after the passage of the Bill,
- "it will be important to ... provide advice and guidance to those who wish to assert their rights"--
- "to institute or support individual or public-interest cases based upon well-researched, well-founded evidence and arguments".
- "One way forward could be for the Act to establish a Human Rights Commission or Commissioner".
- "A Human Rights Commissioner or Commission, or similar public body, would provide advice and assistance to those seeking the protection of the rights enshrined in the Convention, and be itself able to bring proceedings to secure effective compliance with the ECHR, whether by judicial review or by representative proceedings".
We in my party have pressed the Government to create a very modestly funded public authority with carefully defined powers to give advice and assistance, and to bring proceedings in its own name. We are very disappointed that the Government have decided not to implement the proposal at least at this stage. However, I am encouraged by the Lord Chancellor's observations and by the White Paper's statement that the Government have not closed their mind to the idea, especially in the context perhaps of rationalising and harmonising the enforcement powers of the existing bodies dealing with unlawful discrimination on various grounds.
We all look forward to the maiden speech of the noble Baroness, Lady Amos, who has particular expertise as former chief executive of the Equal Opportunities Commission. She is an old friend with reforming instincts whose speech will make an important contribution to the debate.
In his important keynote address to the Solicitors' Annual Conference in Cardiff on 18th October, the Lord Chancellor rightly observed that the civil justice system,
- "should be accessible for everyone--not just the very poor and the very rich".
- "but where it is plainly in the public interest for a particular point of law to be examined, or for a precedent to be established".
- "it would be right to make special arrangements for these cases".
I hope that during the period when the case for a human rights commission is being further considered, the noble and learned Lord the Lord Chancellor will indeed be willing to use the powers conferred by the
Bill to make special arrangements as to costs where legal issues of real public importance are raised in judicial review or other proceedings of the kind referred to in his keynote address. It is not enough, I believe, to permit lawyers to enter into no-win no-fee agreements with clients of limited means. It is also necessary to ensure that the risk as to costs, including the respondent's costs, do not act as an obstacle in the way of effective access to justice.I also hope that the Lord Chancellor will use the powers conferred by the Bill to implement the recommendation of the noble and learned Lord, Lord Woolf, in his masterly report on Access to Justice that the courts should have a discretion to order such costs be paid out of public funds, or to order at the leave stage that an unsuccessful applicant will not have to pay the respondent's costs where the court is satisfied that the proceedings have been brought in the public interest.
Effective access to justice for all is a basic human right guaranteed by the convention. Effective access is crucially important if the Bill is to make real progress towards a constitutional Bill of Rights for this country.
4.24 p.m.
Lord Bingham of Cornhill: My Lords, I join with previous speakers in looking forward with eager anticipation to the speech to be made later by the noble Baroness, Lady Amos. I also associate myself, if I may, with the tributes already paid to the noble and learned Lord, Lord Scarman, the former head of my chambers, and the noble Lord, Lord Lester of Herne Hill.
I welcome the Bill. My reasons for doing so are unsurprising and may therefore be stated briefly. First, it seems to me highly desirable that rights and freedoms which the United Kingdom has undertaken to guarantee to its citizens should be enforceable by those citizens here in the United Kingdom. It makes no sense, and, I suggest, does not make for justice that those seeking to enforce their rights have to exhaust all their domestic remedies here before embarking on the long and costly trail to Strasbourg.
Secondly, it seems to me highly desirable that we in the United Kingdom should help to mould the law by which we are governed in this area. I think--and the very distinguished president of the European Court of Human Rights has made it clear that he shares this belief--that British judges have a significant contribution to make in the development of the law of human rights. It is a contribution which so far we have not been permitted to make. But incorporation will also mean, I hope, that when cases from this country reach Strasbourg, as on occasion they will do, the court will have the benefit of a considered judgment by a British judge on the point at issue. That will mean, I hope, that some of our more idiosyncratic national procedures and practices may be better understood.
Thirdly, I consider that incorporation will strengthen the confidence of the public in our democratic and judicial institutions. At present disappointed litigants leave our courts believing that there exists elsewhere a superior form of justice which our courts are not allowed to
administer. In most cases those litigants would fare no better with the benefit of the convention. But the belief that there is some superior form of justice available elsewhere is, I think, damaging and undermines confidence in our institutions. It is unhealthy; and I hope that incorporation will restore the belief of our people, once an article of faith, that human rights and fundamental freedoms flourish as luxuriantly here as anywhere else in the world. It is after all 350 years since Milton wrote in Areopagitica,
- "Let not England forget her precedence of teaching nations how to live".
I believe that these are solid reasons for welcoming the Bill. But I do not think that they will turn our world upside down. I do not think so badly of our institutions as to suppose that we have been routinely violating human rights and undermining fundamental freedoms all these years. I am aware, as are your Lordships, of a number of objections in principle to incorporation. The first is that it involves, so it is said, a major transfer of power from Parliament to the judiciary. While I respect those who advance that argument, it is not one I accept. The mode of incorporation does not empower judges, as the noble and learned Lord the Lord Chancellor made clear, to overrule, set aside, disapply, or--if one wants to be even more dramatic--strike down Acts of Parliament. That is a power which throughout the recent debates the judges have made clear they do not seek. The mode of incorporation adopted is that which most fully respects the sovereignty of Parliament. Following incorporation, nothing will be decided by judges which is not already decided by judges. The difference is that British judges will in the first instance have an opportunity to provide a solution.
The second objection in principle which one frequently hears is that it will draw the judges into politics. That has not, so far as I know, happened in all the other member states of the Council of Europe which have either incorporated the convention or given effect to it. As noble Lords well know, judges already from time to time find themselves deciding cases which have political, sometimes even party-political, implications. The judges strive to decide those cases on a firm basis of legal principle; and that is what they will continue to do when the convention is incorporated if the Bill becomes law.
Thirdly--a matter referred to by previous speakers--concern has been voiced by the media at the implications of Article 8. The first paragraph of the article states:
- "Everyone has the right to respect for his private and family life, his home and his correspondence".
- "There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society",
Questions are bound to arise on the line that divides the right to privacy from the right to freedom of expression. In the absence of statutory guidance, the courts will have to decide such questions when challenges are made. They will be guided by the case law in Strasbourg. They will pay attention to cases in other jurisdictions around the world which have provisions and which have given helpful answers to analogous questions. The judges will strive to give effect to the public policy underlying the convention. If they fail to do so, they are open to correction by Parliament or by the European Court of Human Rights. I find it hard to see why this country--alone among European nations--should fail to reconcile these competing principles in an acceptable manner.
It is no doubt possible that the Bill may be improved during its passage through Parliament. However, I welcome it as a valuable step in the right direction. I hope that I shall not be thought discourteous if I leave the debate before all noble Lords have spoken. I have an inescapable engagement later in the evening.
4.32 p.m.
Baroness Amos: My Lords, I welcome the opportunity to participate in a debate on a subject in which I have had a long-standing personal and professional interest. It is an honour to speak in this House, with its commitment to justice, and in the company of so many who have campaigned vigorously for human rights legislation in the United Kingdom.
As this is the occasion of my maiden speech, I am mindful of the advice I was given to be brief and uncontroversial. Human rights is a subject that can generate strong feelings and, as such, does not readily lend itself to a totally uncontroversial speech. But I have been assisted in that regard by the scope, comprehensiveness and content of the Bill and the White Paper which accompanies it.
The Bill is the most significant development in protecting human rights in the United Kingdom since the war. Its impact could be far-reaching, not only in providing individuals with access to justice if their rights are infringed but in helping to ensure that they never need to go to court--by changing the way in which legislation and policies are drafted and by raising awareness throughout society of the importance of rights and the responsibilities that they entail.
That is a development which I very much welcome. Only last year, the Runnymede Trust, of which I am deputy chair, was part of a delegation of United Kingdom organisations to the United Nations meeting of the Human Rights Committee for the Elimination of Racial Discrimination. Committee members, in their final recommendations to the British Government, confirmed that according to international standards racism in the UK is a violation of human rights. The continued existence of racism and other forms of discrimination in any modern society needs to be seriously addressed. The Bill goes some way towards creating the framework for a more inclusive and tolerant society which values diversity and the contribution being made by all its citizens. It begins the process of
creating and promoting a rights culture in which every individual recognises that we all have a role to play and that working towards the elimination of discrimination (be it on the grounds of sex, race, disability or sexuality) is a majority issue and not a marginal concern.In this respect, I regret the fact that the Bill makes no provision for the establishment of a human rights commission, although the White Paper does not rule out the setting up of such a body at a later stage. As a former chief executive of the Equal Opportunities Commission, the statutory body which deals with sex discrimination and equal pay, I am mindful of the important role that national statutory bodies can play in ensuring that individuals have access to justice and access to the expert advice and assistance they need to bring a case. Our existing statutory bodies, such as the Commission for Racial Equality and the Equal Opportunities Commission, have an important legal role; but they also have an important role in raising public awareness.
I would like to see a human rights commission in the United Kingdom with the following key functions: securing access to justice; promoting good practice among the public bodies which may otherwise find their practices subject to challenge in the courts; monitoring draft legislation and policy and assisting Parliament in scrutinising legislation; and providing information to the public. Those functions are particularly important in the early stages of incorporation to ensure that the rights set out in the Bill are accessible and that Parliament, the courts and the general public are assisted in the interpretation, enforcement and monitoring of those rights.
There is of course an ongoing debate about whether the Equal Opportunities Commission and the Commission for Racial Equality should be brought within the umbrella of a human rights commission if such a body is created. The Institute of Public Policy Research, of which I am a trustee, has conducted research on the functions which a human rights commission could fulfil and the structure that it might have. In my view the effectiveness of the Equal Opportunities Commission and the Commission for Racial Equality would be enhanced by becoming part of a human rights commission. It would bring issues of race and sex discrimination from the margins to the mainstream; the two organisations would no longer be perceived as acting in the interests of a particular social group but would be seen as part of a body promoting and enforcing internationally recognised human rights. For the public, employers and other organisations seeking guidance, there would be a single body--a one-stop shop.
There will always be difficulties in changing the institutional structure of existing bodies. Reassurance will be needed that the intention is to strengthen each part of any new body and that neither race nor gender discrimination will be marginalised in any new structure. However, differences about optimal structures should not deter us from creating a body which will undoubtedly be needed if the Bill is to achieve its full potential in protecting the rights of people within the United Kingdom.
I hope that the Government will now take the lead and consult on the options with respect to the creation of a human rights commission and build the consensus which they have rightly identified as being desirable.
I thank your Lordships for your patience and kind attention.
4.40 p.m.
The Lord Bishop of Lichfield: My Lords, I am delighted, on behalf of your Lordships' House, to congratulate warmly the noble Baroness, Lady Amos, on her excellent maiden speech. Her speech reveals at first hand her wide experience of issues connected with the Bill. Her work with the Equal Opportunities Commission, about which we have heard several times, her work with the Black Health Foundation and her present, ongoing deputy chairmanship of the Runnymede Trust all qualify her to assist your Lordships' House with the present business but also with many other subjects on which we look forward to hearing from her. On behalf of your Lordships' House, I repeat our congratulations to the noble Baroness on her speech; we look forward to hearing from her in the future.
Various speakers from the Bishops' Bench, in 1995 and 1997, assured the House that, should it pass the Bill, a substantial body of people, from other-faith communities as well as the churches, would applaud. In 1985, for instance, the Roman Catholic bishops of England and Wales strongly supported the incorporation of the European Convention on Human Rights into United Kingdom law, as did the majority of the executive committee of the then British Council of Churches. Those are not merely formal gestures of support. For some of us, there is a spiritual and religious dimension, as well as a legal and human dimension, to the Bill. It may be of more than historical interest to recall that in 1776 the American Declaration of Independence had at its heart a religious reference, declaring that:
- "All men are created equal and are endowed by their creator with certain inalienable rights".
I believe that there is also a moral dimension to the Bill. In a speech in your Lordships' House on 1st May 1995 my colleague, the Right Reverend Prelate the Bishop of Oxford, said:
- "I believe that in the end [the incorporation of such articles of the convention into law] ... is a moral matter and that the rights enshrined in the convention are not there simply because certain states decide that they will be there but because those states recognise certain fundamental moral principles which need to be enshrined in law".--[Official Report, 1/5/95; col. 1279.]
I speak, therefore, as a supporter of the Bill. However, perhaps I may, for that very reason, raise two questions already aired in public discussion but on which I should be grateful to hear a further answer. I trust that noble and learned Members of this House from the legal world will bear with me if my questions are naive or confused.
First, is it the case, as some public criticism has claimed, that the convention defines the human rights which it protects in terms which are dangerously general? In particular, is it the case that the terms in
which the restrictions on human rights are framed are too sweeping--broad terms such as "national security", "the prevention of disorder" and "health and morals"? Some of us have read the argument that such generality is at odds with the more detailed case law-based practices of British justice. But the justification for incorporation must surely be that it will enlarge the freedoms of citizens under the law. Is there a danger that the sheer generality of some of the articles could be interpreted in such a way as to restrict those freedoms?My second question concerns the proposed fast track for changing laws following an adverse declaration by the courts. As I understand it, the proposal is to do this under 90-minute orders. Such orders can be rejected by Parliament. Will they, with the pressure of other business, be scrutinised and amended with due care? I understand that in particularly urgent cases the order would take immediate effect, although it would expire after a short period if not approved by both Houses. A not unfriendly critic might still ask whether over a period of time, as an ongoing process, all this would not shift the balance between Parliament and the courts in ways that may not be evident for some years.
The noble Lord, Lord Habgood, and the Right Reverend Prelate the Bishop of Oxford were members of a working party on human rights and responsibilities in Britain and Ireland which reported in 1988. That report concluded that the incorporation of the European convention into domestic law could make a significant contribution to the solution of the problems of Northern Ireland by providing an additional safeguard to the rights of people. I believe that that argument still holds. Justice and the rule of law are the best basis for reconciliation in that context. I am sure that your Lordships will not take it amiss if I insist upon this point: reconciliation requires more than good law, but justice is the best foundation for peace.
In conclusion, I am convinced that many church leaders and leaders of other communities in these islands would argue, as I do, that the right of the citizen to challenge the lawfulness of any Act by the government under which they live is one of the strong foundations of democracy. The main function of this legislation is not to undermine our legal system through incorporation of foreign elements within it but genuinely to see that justice is done without unnecessary delay or exposure. The title Bringing Human Rights Home is well chosen.
4.47 p.m.
Lord Mishcon: My Lords, your Lordships also have human rights. One is that, if I exercise the privilege of addressing your Lordships, I should be brief and not repeat what others have already said. I deeply regret that the noble Lord, Lord Kingsland, is not in his seat. I hope that I shall not be deemed discourteous if I comment on his speech in his absence; I would have much preferred to have said it in his presence.
It is regrettable that the main Opposition party is not joining with others in your Lordships' House in agreeing to the Bill. I believe that it is singularly unfortunate--for them, as well as for the country--that the impression
should be given that the Opposition is opposed to the proposed rights of British subjects to come to British courts; but there it is.I admired the noble Lord's speech for the readiness of his eloquence and, if I may say so, his utmost clarity in developing unclear arguments. I am glad that the noble Lord is here to hear those words, if he heard no more.
I can understand the person who takes responsibility for the main Opposition's views in this matter saying that he disagrees, as does his party, with the whole idea of the convention. Many arguments were advanced on the basis of, "Surely our common law is good enough. Do we not have enough of a reputation in regard to our civil rights and liberties without having to borrow somebody else's convention, even though British lawyers took such a prominent part in drawing it up?" That I can understand. What I cannot understand is somebody saying, "The convention is a good document and I am glad that in 1951 this country ratified it. But the only way in which advantage can be taken of that convention is by telling one's client (if one happens to be a lawyer) 'in our view, you have definitely got rights under this convention. But I am sorry that, in order to exercise them, you will have to take a journey to Strasbourg with me. It will take a long time because the lists are cluttered up. I am afraid that when we start thinking of legal costs, the amount will be considerable. I am afraid also that you will not necessarily have the benefit, as you would have done if things had been different, of going before an English judge who would interpret--as much as he could--by the principles of English law the law set down by the convention'".
There is no doubt that we have the finest judges in the world--some of us will be even more certain of that after recent events. That is something that could hardly be said by the judges who have already spoken in the debate. To deprive our citizens of their right to appear before those judges is an ungainly attitude for the main Opposition to take. However, it was put on record. The reason they are not opposing the Bill is not because they want to put any arguments against it, but because of the Salisbury Convention. We are indebted to the name of Salisbury for many things and I suppose we must add that to our indebtedness on this occasion.
Perhaps I may take up one of the points that was made and develop it a little. One of the examples given by the noble Lord, Lord Kingsland, was the declaration of incompatibility. As I understood him--I know he will correct me if I am wrong--he felt that the declaration of incompatibility was made in breach of the whole of our constitution in the sense that the judge was telling Parliament what Parliament ought to tell the country. I do not understand that. The judge will only say what any layman of intelligence might say: "I am faced with the existing statute on one side; I am faced on the other side with the convention and the two cannot be matched. I am not saying that one is right and the other is wrong".
In fact under the Bill, if it becomes an Act, he would have to say, "In my position as a judge I can only take into account the Act of Parliament which already exists". Then, under the Bill, if the question of
incompatibility is to be examined, notice must be given to the Crown. The Minister can make himself part of the proceedings. That is Parliament speaking in the law courts; talking in terms of discussing incompatibility. If there is incompatibility, who decides whether or not the Act of Parliament which is incompatible should be amended? Parliament decides that; not the judge.Having said that, perhaps I may ask a question of the Minister. I do not know how the procedure--with which I entirely concur--works. The judge makes a declaration of incompatibility and has in front of him the accused in a criminal case or the plaintiff or defendant in a civil case. Incompatibility is found. If the Minister who is responsible wants to intervene, he can do so. He does so and the application is heard; there is then a decision.
What happens in the case that is under review? Possibly the decision will be announced by the Minister in the court that he intends to recommend that our statute be amended to conform with the declaration. What does the judge then do? Does he adjourn the proceedings to see what view may be taken? In the Bill there is a procedure under which it is held that there can be retrospective legislation or retroactive legislation. It could therefore date back to the time of the trial. Does one adjourn and wait? There is another provision in the Bill which says that nobody is to be made guilty as a result of the eventual decision of the Government either to keep the legislation or to amend it. But it does not say that someone must not be made innocent. I should be grateful if the Minister could reply to that question at the end of the debate.
My last words--your Lordships will appreciate this--relate to Clauses 8 and 10 of the convention. Those are the clauses that relate to privacy. It is all very well to talk about the public interest when one is in the newspaper world--and much of our newspaper world is still reputable. But there is a part of it of which I am thoroughly ashamed. I say that without reservation. My American friends used to come to me and say, "What a joy it is to read your British press. It is nothing like our newspapers that contain gossip and pictures of the kind that we do not admire". Now they say, "Oh, you have caught our American plague, have you, with some of your newspapers?".
We talk of public interest but I wonder whether it does not also go the other way. The convention lays down that everyone is entitled to privacy in person, correspondence, home and family. The Royal Family is entitled to it; Ministers of the Crown are entitled to it; and Members of Parliament are entitled to it. In the public interest I say this. I know of many men and women who are extremely capable of rendering public service to this country who have said to me, "We would love to do it, but no thank you; not at the cost to my family life, knowing that every action of mine will be looked at and every person with whom I have dinner or lunch will be photographed. No thank you. I love my family too much, however much I love my country".
Public interest therefore goes both ways and if the voluntary regulation does not pay with some members of our press, then I hope a judicial decision made in the light of this Bill by British judges will bring them to their senses.
4.59 p.m.
Lord Waddington: My Lords, I fear that I may be about to put something of a dampener on the proceedings. But in doing so, and in showing less than full enthusiasm for this Bill, I would not like it to be thought that I do not admire greatly the work done by many people, and perhaps principally the noble Lord, Lord Lester of Herne Hill, in the field of human rights. When I make my contribution I would not like it to be thought that I am not paying tribute to him and also, as others have done, congratulating the noble Baroness, Lady Amos, on her maiden speech.
When one reads some of the decisions of the European Court of Human Rights, such as the decision that the United Kingdom violated the human rights of the IRA terrorists who went to Gibraltar bent on murder, it is not surprising that some have argued that we should have denounced the convention years ago. But the fact of the matter is that we have not denounced the convention, and at first blush it seems attractive to argue, as many have, that if a convention which Britain has signed gives British people rights, they should not have to make the long and expensive journey to Strasbourg in order to obtain them. But of course the matter does not rest there. For while the Prime Minister stresses that the object of the exercise is little more than to make it easier for people to get their rights--in the words of the White Paper,
- "to make more directly accessible the rights which the British people already enjoy under the convention"--
According to the noble and learned Lord, incorporation will include a very significant transfer of power to the judges, who--I quote from a press report of a speech he made--
- "will interpret the convention to reflect changing social attitudes".
Now of course the judges have always made law. Indeed when we talk about human rights, as we do today, we should remember that such human rights as our law recognises are largely judge-made; for example, the presumption of innocence, the right of peaceful assembly and the freedom of the press. As we applaud the judges for having used common law principles to uphold individual rights, we are entitled to wonder whether we cannot trust them to continue to develop the common law to meet new threats to our liberties when they arise.
But make no mistake about it, when we ask the judges to get to work on some of the vague and imprecise concepts in the convention, such as the right of respect for family life, when we give the judges the opportunity
to put whatever construction they like on these concepts, we will be giving an immense new impetus to the judges' law-making power, for good or ill. Furthermore, we will be doing so at a time when the judges have not exactly been backward in coming forward, having in any event been demonstrating an increasing enthusiasm to make new laws, particularly new laws to fetter the Executive.Against this background, is it not obvious that the greater the latitude allowed to judges to make new laws, the greater the risk of their appearing arbitrary, capricious and biased; and is it not obvious that the greater the latitude allowed to judges to make law, the greater the risk of conflict with Parliament?
We were told that the Bill has been drafted to minimise the risk of such conflict. But increasing conflict there undoubtedly will be. The courts may not be able to strike down a Bill as conflicting with the convention, but the noble Lord, Lord Mishcon, has to acknowledge that the end result will be precisely the same. If the judges make law which conflicts with a law made by Parliament, a fast-track procedure will be invoked to ensure that Parliament bows the knee and the judges' law prevails. That is the truth of the matter. And what these laws will be, to which Parliament will have to bow the knee, is anyone's guess.
It will all depend, according to the noble and learned Lord the Lord Chancellor, on the judges' views of what Parliament, the elected representatives of the people, has failed to do by way of change to the present law to reflect "changing social attitudes". When these conflicts with Parliament arise, as they inevitably will, it is equally inevitable that there will be much greater interest in the political affiliations of those appointed to the Bench and, as in the United States, appointments will become a matter of controversy, with the suspicion, justified or not, that they have been made on political grounds. We will finish up paying a handsome price for the exercise on which we have now embarked.
What makes this whole exercise particularly unsatisfactory is that while, through incorporation, we will be running all these risks, we will not avoid continuing to be made fools of by the judges in Strasbourg. If British judges are robust and reject large numbers of complaints, the litigants, or a large number of them, will go to Strasbourg anyhow, and we could actually finish up with more decisions against us at Strasbourg than we get now.
That of course will mean us finishing up with the worst of all worlds: first, erosion of the sovereignty of Parliament, with the judges rather than the elected representatives of the people making laws to reflect changing social attitudes; and, secondly, foreign judges, brought up in an entirely different tradition, making embarrassingly inappropriate decisions in Strasbourg. At the end of it all I cannot forget that for centuries we have got on very well, avoiding tyranny, without a constitution spelling out in high-flown phrases so-called fundamental rights. The Government of the Soviet Union, with such a constitution, practised mass murder. I do not believe that the British need to be given rights; or rather, if they need to be given rights, they are not to be found in the convention.
As a free born citizen I thought, long before I read the convention, that my family and my home were entitled to respect. I thought--and surely I was right to think--that if any public authority invaded my home without just cause, I had a remedy. But I am now told that if my home was invaded and I was foolish enough to seek a remedy under the European convention, I might be met with the argument that, in my case, invasion of my home was necessary--and here I quote from Article 8--for the economic well-being of the country or the protection of my or someone else's health. I am tempted to say, though I fear I would be out of order to say so, thank you for nothing, my Lord Chancellor; thank you for nothing, Mr. Straw.
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