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Lord Renton: My Lords, before my noble friend sits down, I wonder whether he will bear in mind that for the past 46 years the people of our country have been subject to the rights and obligations created by the European Convention on Human Rights, and that when they have had access to the European Court the judges there have included a British judge or sometimes two British judges. The conflict to which my noble friend has referred between the decisions of the Court and governments in the European Community just does not seem to have arisen. Is it not now right that the British people should have their rights and obligations enforced by our judges in our courts?

Lord Waddington: My Lords, my noble friend must have misunderstood what I said earlier. I was not talking about conflicts which have occurred but about the potential for conflict in the future as a result of giving a great, new impetus to the judges' law-making power. I should have thought that it was obvious to everybody that there is some risk in giving this new impetus to the judges' law-making power. In my view, conflict with Parliament will almost certainly arise.

5.10 p.m.

Lord Scarman: My Lords, I am most grateful to noble Lords for allowing me to speak so early in the debate. Sadly, I shall be unable to stay until the end of the debate for pressing private reasons. Once again, I thank your Lordships for allowing me to speak so soon.

This has been a splendid debate so far--until, if I may say so, the last 10 to 15 minutes. I am a retired judge and when the noble Lord, Lord Waddington, was speaking, I wondered exactly what class of men and women he was referring to in terms of the way in which they apparently behave intellectually. I remind the noble Lord that for centuries our judges have been developing the common law, and for centuries from time to time Parliament has amended, reformed and perhaps even removed part of the common law. I have not noticed any judicial revolution because of that and I have not noticed any tyrannical behaviour on the part of Parliament. Indeed, if we were not to enter the new constitutional phase which is heralded by the Bill, it may be that the judges would look at the convention, knowing the way in which it was drafted and its history, as something that could creep into the law through the common law unless Parliament passed legislation to cancel it. That would be absurd and, fortunately, we have this Bill.

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The Bill is the beginning of a very important constitutional chapter in our history. The quality of the Bill is that it recognises that in a democracy, the democratically elected assembly--for us, that is Parliament--must be sovereign. At the same time, the Bill recognises that the European Convention on Human Rights exists and that that convention, ratified by Britain in 1951, guarantees the human rights stated in it. The Bill recognises that those rights are already in existence in the United Kingdom, although their direct enforcement is not yet possible here.

What has the Bill done? The Bill has stood up for parliamentary sovereignty. At the same time, to quote from the preamble to the Bill, it,

    "gives further effect ... to rights and freedoms guaranteed under the European Convention on Human Rights".
The Bill recognises that under our law those rights are already guaranteed and takes that as an opportunity for constitutional reform. The Bill is modest. As I have said, the legislation will be an Act to give further effect to rights and freedoms that are already guaranteed under the European convention.

The Bill has done that in a brilliant way and I congratulate the noble and learned Lord the Lord Chancellor, his colleagues in government, the civil servants and the draftsmen on the document that they have produced. We now have the protection of our primary law and the protection of the rights that are guaranteed by the European convention. That is achieved by a partnership, if I may put it like that, between Parliament and the judges. The judges do not strike down primary legislation; they merely indicate their opinion, without fuss, that certain matters are incompatible and leave it at that. When there is incompatibility between a primary statute and the European Convention on Human Rights, there will be a fast-track parliamentary procedure.

The Bill may or may not need reform or looking at again in the future, but it is the beginning of a new constitutional chapter and I see absolutely nothing in the history of English law which indicates that either the judges or Parliament will play rough. This is a new form of partnership, with the judges sticking to their judicial work and Parliament being supreme in legislation. That is absolutely right. If we are to be a democracy, the people must have the last word. Having said that, constitutionally we can ensure the protection and development of our rights, guaranteed under the convention.

A number of provisions in the Bill could well be further considered. My speech will be short, so I certainly do not propose to do that, but I should like to say this: if we go ahead, developing phase by phase along the lines suggested in the Bill, we shall work out a new constitution which will be to the infinite benefit of everyone. I have no doubt about that. It will come if the spirit of the Bill is maintained. Having heard the speeches that have been made so far, I end by saying that we need have no fears: we are on a path to constitutional reform which will preserve our democracy and our convention rights.

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5.19 p.m.

Lord Holme of Cheltenham: My Lords, it is a great privilege to follow the noble and learned Lord, Lord Scarman. As one who has been a humble foot-soldier in his band which is now on the eve of a famous victory, perhaps I may add that there is no noble Lord to whom I should rather give way than the noble and learned Lord. This is a great day for him and for Britain. I am extremely glad that he is with us today of all days.

This is a victory not for any political party, or combination of political parties, but for individuals and citizens for whom the noble and learned Lord the Lord Chancellor spoke in his introductory speech. I believe that it is right to pay tribute to some of those outside your Lordships' House and the other place who have put so much effort into this over the years. I refer to NGOs like Justice, Liberty, the Runnymede Trust, referred to by the noble Baroness, the Constitutional Reform Centre, of which I had the honour to be chairman for some time, and perhaps above all the Standing Advisory Commission on Human Rights in Northern Ireland. As long ago as 1977 that was the first body to come out in support of this proposition for the very reason, which has already been referred to by the right reverend Prelate, that in Northern Ireland this was one measure on which all sides of the community and all parties agreed. It provides a basis for common respect for human rights across the communities. It is no coincidence that the Standing Advisory Commission on Human Rights in Northern Ireland was an early supporter of this measure.

I am bound to say that I am slightly confused by the message that has come from the Benches to my left. I got the impression--perhaps I did not pay sufficient attention--that the noble Lord, Lord Kingsland, was rather in favour of the incorporation of the convention into British law. At one point he praised it with faint damns. Towards the end of his speech I slightly lost his argument, but my overall impression was that the noble Lord quite liked this measure. One then heard a robust and unreconstructed speech from the noble Lord, Lord Waddington. Perhaps he provides the more authentic traditional voice of the Conservative Party. One wonders whether the noble Lord, who presided with such distinction over the beautiful island of Bermuda, is aware that written into its constitution is the whole of the European Convention on Human Rights. It is good enough for the Commonwealth, Europe and virtually the whole world, but apparently not good enough for the Conservative Party.

This is a debate full of immensely distinguished lawyers from all over the place. Lawyers have spoken and are about to speak. Of course, those of us who are laymen listen to them with enormous respect. But I believe that there is an important aspect of this convention that must be considered in an entirely different way. It is natural for lawyers to think of remedies and the infringement of rights. They think of courts and what happens in them to deal with the infringement of rights and how remedies can be made available. That is how it should be, and that is what lawyers are for. But I believe that it is more important for us to consider the normative effect in creating a

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culture of rights. This was a matter to which the noble and learned Lord referred and to which the noble Baroness, Lady Amos, also referred in an outstanding maiden speech. If one is to create a culture of rights, what is far more important than what ends in court is whether legislators in legislating and administrators in administering build into their thinking this culture of rights so that one ends up with less legal proceedings and more of a culture and society that provide greater respect for rights; in other words, the normative effect is the key and one should always be alert to the rights of the individual.

If I have one bone to pick with the Government it is a relatively small one but I pick it nonetheless. I refer to the rather warm words but faint commitment to a human rights commission. The Government have said that at some stage in the future they will be open to considering such a commission. Surely, the need for a commission is at the beginning of this process, to take up cases to test the law, to encourage and assist individuals in a new area for British courts and to promote good practice; in short, to make the whole process work. I hope that the educational effect that a commission can have is a matter that the Government will address slightly more urgently than their words suggest. Words such as "the future" always make one a little nervous. That is a limbo in which all too often good ideas disappear.

I should like to seek three assurances from the noble Lord, Lord Williams, when he comes to reply to the debate: first, that the future to which the Government refer is the near future; secondly, that on the issue of the commission there is no question of a Treasury veto on relatively modest sums of money to fund such a commission; and, thirdly, that the Government will take an active lead in trying to reconcile the commission with the other equality commissions. I believe that this is such a complicated matter that without an active lead from the Government these questions are unlikely to be resolved. I seek those assurances in the context of an apology that I must make to the noble Lord. I have already notified him that I have a long-standing engagement which means that I may have to leave before he replies. But I shall be most interested to read what he says.

In conclusion, this Bill is a major plank in the Government's programme of constitutional reform. It has the power to modernise and invigorate our system of government. But, above all, the reason why I believe that we should support it wholeheartedly is that it aims to put the citizen back where he and she belong; that is, at the centre of the system rather than on the periphery.

5.26 p.m.

Lord Simon of Glaisdale: My Lords, the White Paper justly pays tribute to two of the precursors of this Bill. The noble Lord, Lord Lester, has done so much not only in presenting a Bill which foreshadows this but also in leading us--those who followed--into the concept of the value of a parliamentary committee on human rights. I should like to see a joint select committee. For that, too, we are indebted to him. The other one who was mentioned in the White Paper, I believe valuably, was

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Sir Edward Gardner, who had been my parliamentary private secretary. He, too, introduced a Bill on the lines of this measures. Very valuably, he set it in the context of English, British constitutional and common law. But there was one who was not mentioned until he was referred to by the noble Lord, Lord Lester. I refer to the late Lord Wade who, Session after Session, tabled a Bill on these lines. I strongly supported him, so naturally I support this Bill.

I was a little embarrassed at the time because four noble and learned Lords who were personal friends and colleagues, and for whom I had very great respect, differed on the matter. On one side were my noble and learned friends Lord Scarman and Lord Hailsham of Saint Marylebone; on the other side were the late Lord Diplock and the late Lord Elwyn-Jones. One should remember that Lord Elwyn-Jones on that occasion also spoke on behalf of the Labour Party, which renders inappropriate part of the jibes of a rather partisan political character that have occasionally crept into this debate.

I was very glad that the noble Lord, Lord Waddington, as did Lord Elwyn-Jones, pointed out that there was another side to this question. It is one that I do not myself accept. I believe that the arguments are overwhelmingly preponderant in favour of this Bill. However, one would be very rash indeed to proceed without weighing very carefully what the noble Lord has said today.

In view of all that has been said, I think that I can address myself to three specific points. The first is that, although one might not have gathered it from the speech of my noble and learned friend on the Woolsack, the Bill nevertheless introduces into English law for the first time a right to privacy. I say "for the first time", but it was in fact adumbrated many years ago. In 1351, in the famous statute which inaugurated the justice of the peace, it was made an offence to eavesdrop. At that time literally listening under the eaves of your neighbour's house was considered an infringement of his privacy. Unfortunately we lost that tradition in our law, and today we have far more grotesque invasions of privacy: electronic eavesdropping, long distance photo lenses, and so on. I profoundly agreed with what the noble Lord, Lord Mishcon, said at the end of his speech about the danger such conduct renders to the recruitment of valuable people into our public life.

I have some questions to ask, on the assumption that the right to privacy is a real right. I believe that it can be enforced against a public body only. Presumably--perhaps the noble Lord, Lord Williams, will correct me if I am wrong--that will include the BBC. Will it include independent television and its various components? Will it include the press? I doubt it as such, but in the valuable brief which the organisation which is now called Liberty has circulated, it suggests that the matter might be indirectly canvassed against the press by bringing a complaint to the Press Complaints Commission, and, on failing to receive satisfaction from it, to bring a suit for judicial review. That seems to be hopelessly circuitous. I hope that the noble Lord, Lord Williams, will be able to satisfy us on that point.

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The second point that I want to raise is on legal aid. I naturally attach high importance to access to justice, but I respectfully agreed entirely with my noble and learned friend on the Woolsack, and with his predecessor, that there must be some containment of the legal aid bill which is now utterly out of hand. I disagreed however with the proposal that the mitigation of legal aid should be compensated for by a no win-no pay system of litigation. That brings a most undesirable gambling element into our legal system and profession.

Indeed, I should have thought that it is inappropriate in the context of human rights where there is seldom, and often a restricted, right to compensation. The remedies are sometimes unpecuniary. Perhaps I may suggest an alternative; that is, to give certain bodies, at the discretion of the court, a locus standi. That could include bodies such as the Commission for Racial Equality and the Equal Opportunities Commission. I would go further, because I should like to see both those bodies pressed into a human rights commission. I agreed with what the noble Lords, Lord Lester and Lord Holme of Cheltenham, and the noble Baroness, Lady Amos, in her splendid maiden speech, said about that.

If we had a commission for human rights and permitted it, at the discretion of the court, to have a locus standi in these matters, part of the denial of legal aid would be solved. American courts give that type of locus standi. I see no reason why we should not.

We should not be justified in adding to the legal aid bill at this moment. We are at the moment borrowing money which has to be repaid by our children. We are not justified in borrowing it to spend on our own satisfaction but only on matters such as education, training and investment which inure to the benefit of those who have to repay the debt.

The last matter I should like to raise is one which has been freely and valuably canvassed; that is, the relationship between Parliament and the courts. So far as concerns future legislation, it seems to me that the Government's proposal is well-conceived in the light of our constitutional balance, but as regards past legislation, I cannot see why the common law rule that a later statute which is incompatible with an earlier one impliedly revokes that other in so far as it is not expressly revoked. Indeed I should have thought that that rule must subsist until it is expressly abrogated by statute. Having raised those matters, I should not like it to be thought that I am not wholeheartedly in favour of the Bill.

5.38 p.m.

Lord Mayhew of Twysden: My Lords, it is an honour to follow the noble and learned Lord, Lord Simon of Glaisdale, whom I have had the opportunity to admire over the years from a number of standpoints. I was glad that he said what he did about the speech of

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my noble friend Lord Waddington, because as the debate unfolded I had begun to think that I might be in a minority of one, and therefore in need of some protection, as I sought to develop a warning, which I wanted to lay before your Lordships. It is a warning which, until my noble friend Lord Waddington had spoken, had thus far gone unuttered.

Perhaps I may interpose one small point; namely, a welcome for the Bill's provision retaining the derogation from Article 5.3 in respect of detention. I pass lightly over that because it is not the main thrust, or anything like it, of your Lordships' consideration of the Bill. In my respectful opinion, it is necessary. Notwithstanding the great importance of the general principle of ensuring that people who are detained as suspects shall be released promptly or charged promptly, as regards terrorism related to the affairs of Northern Ireland, we need the provision that is on our statute book: that people may, under stringent conditions which are scrupulously enforced, be able to be detained for five days for investigatory purposes in addition to the 48 hours which are accounted for in right of arrest.

I am sorry to say that that is the only provision in the Bill which I can wholeheartedly welcome. That is not because I am other than wholly in favour of the Convention on Human Rights; wholly in favour and proud of the fact that our country was the first to ratify the convention in 1951; and wholly in favour of the fact that in 1967 we accorded the right of individual petition to our fellow citizens. Those are important aspects and it is right that they should continue.

However, I am also a firm admirer of our judiciary and the limitations that our constitutional practice has placed upon its work. Those limitations have preserved the judiciary from any perceived taint of partiality, especially in controversial fields of political policy. That is important and we want to risk it only after the greatest care and consideration.

It is important because it bears upon the need for the public to retain confidence that the judiciary is altogether impartial. That is nowhere more important than in the case of the disappointed litigant. It is important that he leaves the court believing that the judiciary is altogether impartial. He may believe that the judiciary did not understand the case--perhaps that is par for the course--but he should never believe that because of a perceived taint of partiality the judiciary could never have been expected to find in his favour.

That must continue. My grave fear is that if we require our judges to undertake the additional tasks provided for in the Bill--in shorthand, they can be said to interpret and apply the provisions of the convention--by reason of the broad brush conceptual language, referred to by the right reverend Prelate, confidence will diminish not because of what the judges will do to the convention but what the convention will do to the judges. As I look at some of the most distinguished

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representatives, I say with the greatest respect that I do not believe that the judges are in the strongest position to recognise what the convention may do to them--

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