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Lord Renton: My Lords, it so happens that not only was I a delegate to the Council of Europe at that time in 1951 and 1952 but I was on the legal affairs committee as well. Incidentally, I had to play some part in helping to formulate the constitution of the Court of Human Rights. I can assure the noble Lord that at that time this was not merely considered as a matter between governments; it was a matter on which we wished to protect the interests of all the people of all the countries represented at the Council of Europe.
Lord Beloff: My Lords, that was not how it was presented in this country at that time. What a number of lawyers may have thought among themselves is, of course, of great interest--one is always glad to have the historical reminiscences of the noble Lord, Lord Renton--but if one asked people in this country a decade afterwards, "Are your human rights safeguarded by signature to a convention, or are they safeguarded by Magna Carta and the revolution of 1688?" any schoolboy could have given the correct answer.
Therefore it is a quite extraordinary thought that in a country where on the whole no one has yet been able to demonstrate where this absence of human rights is to be found, we should now be told that we need to incorporate a document whose very generalities reflect the situation then. If we were drawing up something now, obviously we would be more precise and we would avoid these contradictions. But, when it was merely a measure intended to hold up a beacon to the newly liberated countries of Europe, that was not required.
The only serious argument is that at present it is possible for litigants who think that they have been aggrieved to go initially to a court in Strasbourg. That is an expensive and time-consuming procedure. Far be it for me to say anything in favour of the Strasbourg court, for which I have minimal respect ever since it ruined our secondary education in this country by its absurd decision outlawing corporal punishment. All the troubles that the Government now find in schools, all the things that the Home Secretary and the Secretary of State for Education are so anxious to correct, all the assaults on teachers by pupils and parents, stem from that original folly, which unfortunately the noble Lord, Lord Joseph, then the Secretary of State for Education, thought it his obligation to bring into our law.
Nevertheless, there it is. It is said that if we adopt this convention at least we shall save litigants this trek to that court. But it has already been made clear by the noble Lord, Lord Kirkhill, and others that it is nothing of the kind. If litigants are dissatisfied with what the British courts do when they appeal to them on the basis of the convention, there is nothing in the Bill which prevents the litigant from saying, "I happen to be a wealthy man. I can afford it. I shall go to Strasbourg just the same". If one is intent on protecting British litigants from this exhausting, costly pursuit, I fear that some far more radical measures will be required. One measure would be to say--on the whole I say it; I have
in some sense said it already--that the convention is a historical monument: it bears no relation to the present and we might as well say that we are withdrawing from it--the rebus not sic stantibus any more. I do not think that there would be enormous gales of indignation in this country if that were done.The other measure would be slightly less dramatic in international terms: to revive the excellent statute of 1353, the statute of praemunire, by which it was declared that anyone taking a case to a foreign court which should have been submitted to His Majesty's courts would be in danger of having his possessions confiscated and being outlawed. That, I think, would be a considerable deterrent to the persistent litigant.
I hope, therefore, that, Salisbury Convention or no Salisbury Convention, in this place or in another place, this Bill will not find its way on to the statute book. At that point we should consider seriously important issues. They may not bear directly on human rights in the old fashioned sense. They may not be issues of life, liberty and the pursuit of happiness, and the rest of the American Declaration of Independence, to which the right reverend Prelate rightly referred us, but they are questions of discrimination and other matters for which two commissions exist, as the noble Baroness, Lady Amos, reminded us. There may well be a case for a commission to look at other possible minor infractions. I do not refer to infractions of human rights in the sense in which those rights are disregarded in a country such as Iran, to which we have been looking in recent weeks, but those issues which in a fully just society should not be allowed to continue. If the Government would come forward with positive legislation, and not with the incorporation of this out of date, generalised and useless document, they would even have my support.
6.25 p.m.
Lord Cooke of Thorndon: My Lords, not being a frequent speaker in your Lordships' House it perhaps behoves me to mention such credentials as I have for troubling your Lordships with a few thoughts about this Bill. It is a Bill whose significance extends even beyond the United Kingdom and Europe, for it signifies the adherence of the United Kingdom to the international movement towards the national codification of human rights: a movement which answers the aspirations of peoples and takes its origins from the aspirations of peoples. The very existence of such a movement may be seen to refute the arguments about handing political power to the judges, vague generalities and so forth, which a number of noble Lords have with no little vigour and even charm put to your Lordships today. When the Bill is enacted, it is significant that, of the older Commonwealth countries, only Australia will be without some general enforceable affirmation of state guaranteed human rights.
As for my credentials, though modest they are at least varied, extending from six years of judicial breaking in of the New Zealand Bill of Rights 1990 to somewhat similar experience in Samoa, Fiji and the Cook Islands. Those are small jurisdictions, but the smallness of the jurisdiction is no reflection of the difficulty of applying human rights. It presents a real but necessary challenge
to the judge. Now, having had some small experience of the Hong Kong Bill of Rights, it may fall to me in company with some other Members of your Lordships' House to play a part in that field in the future in a significantly different constitutional setting.Each of those lands has evolved its own partly distinctive Bill of Rights; and in turn the United Kingdom Bill will be partly distinctive again. The United Kingdom Bill has limited aims. For instance, it is tied to the rather elderly European convention, taking no notice of international developments since. Again, it does not itself lay claim to comply with Article 13 of that convention, which guarantees to everyone an effective remedy before a national authority. That omission is perhaps to be explained as a matter of drafting technique, but it may not be clear that even the Government are making that claim. I say as much subject to anything that may fall from the noble Lord, Lord Williams of Mostyn, when he replies to the debate. Human rights organisations raise various other points.
I believe, however, that the shortcomings of the Bill--and there are some--are far outweighed by its merits and that it may well prove to have real bite. I believe this for two reasons. The first is the express empowerment of the higher courts to make a declaration of incompatibility. Such express power is not given in the New Zealand Bill of Rights, under which, as was accurately summarised by the noble Lord, Lord Kingsland, sufficiently clear legislation overrides the affirmed rights. As a judge, I feared that the courts might seem to come into conflict with Parliament if they declared that an Act was clear and overriding but nonetheless a violation. Happily, that fear will not exist in the United Kingdom because of Parliament's authorisation of such declarations. Nor does it seem likely that a declaration will be a mere brutum fulmen, if one from the Antipodes may be forgiven what has been called "the worst type of Latinism in the law". It is true that the power of a Minister to make remedial orders is neither expressed as a duty nor restricted in time; nor of course is the power of Parliament--but reasonable expedition would appear to be the essence of the concept in Clauses 10, 11 and 12; they breathe it. And if a national court has made a declaration of incompatibility and expeditious remedial steps have not followed, will not that state of affairs amount to a plain invitation to a journey to Strasbourg? After all, as was pointed out, the European Court of Human Rights retains all its power and can always have the last word. That in itself may well be a strong incentive towards adopting compatible interpretations in this jurisdiction.
Secondly, let us consider the language of Clause 3(1):
- "So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights".
If there is one capacity in which lawyers are unsurpassed, it lies in discerning various possible meanings in words. Last week, your Lordships' Appellate Committee spent much of three and a half days considering the possible meanings of the word "act" in the phrase, "act, fault or neglect". One possible outcome is that for the time being it would be premature to give any definite answer. The week before, the Judicial Committee of the Privy Council spent much of two days considering the possible meanings of the word "a" in the phrase, "a registered trade mark". One possible outcome is that no particular significance attaches to "a".
The shift of the criterion to a search for possible compatible meanings will confront the courts with delicate responsibilities. Even for lawyers, a must is a must. For surely the difference between mandatory and directory provisions can have no place in interpreting the Human Rights Act, which will itself be primary legislation. Consider, say, an Act making a certain kind of disclosure a criminal offence, enacting one specific defence, but not specifically excluding a defence under Article 10 (freedom to impart information). Without expressing any opinion as to the outcome, one can see that there will be a new kind of problem. In effect, the courts are being asked to solve these problems by applying a rebuttable presumption in favour of the convention rights.
Clause 3(1) is, if anything, slightly stronger than the corresponding New Zealand section. If it is scrupulously complied with, in a major field the common law approach to statutory interpretation will never be the same again; moreover, this will prove a powerful Bill indeed.
6.36 p.m.
Lord Tordoff: My Lords, after that erudite exposition from down under and other places, I fear that my remarks will appear much more mundane. I tore up my speech at one stage this afternoon, found it again and am about to tear it up again--mainly because my fox has been shot by both the noble and learned Lord the Lord Chancellor and my noble friend Lord Lester of Herne Hill. However, as the time has worn on, I am not so sure.
I begin by declaring an interest in that I am a member of the Press Complaints Commission. Noble Lords will therefore probably understand what I am about to talk about now even if they do not understand when I have finished. A few years ago I remember the Deputy Chief Whip coming to the Dispatch Box one afternoon and saying that he regretted that the Chief Whip was not able to be there because he was on a course. We all knew, of course, that it was the day of the Cheltenham Gold Cup. The noble Lord, Lord Wakeham, very much wanted to be in his place, but unfortunately he is in Melbourne.
I thought that my noble friend Lord Lester of Herne Hill was rather severe on the noble Lord, Lord Wakeham, who is chairman of the Press Complaints Commission. To refer to the noble Lord's article as
"intemperate" was going a bit far. However, when my noble friend finished I thought I understood where the noble Lord, Lord Wakeham, was possibly wrong and where the Press Complaints Commission had been badly advised. As I say, I am now not so sure.I thought that we should be most grateful for the words from the noble and learned Lord on the Woolsack on the question of privacy--not least because he was complimentary to the Press Complaints Commission, but also because he appeared to set at rest some of the fears that we had. But listening to other noble and learned Lords I am now not quite so sure. The noble and learned Lord, Lord Simon of Glaisdale, touched on a worry that we had had that it might be possible, via injunctions against the Press Complaints Commission, to get at the press in that way whereas the press itself could not be tackled under the Bill when it becomes an Act.
It is that indecision which is worrying for journalists. The Press Complaints Commission does not exist in order to bolster up journalists and newspaper editors. It does, however, exist to ensure that freedom of speech is upheld in this country while at the same time privacy is maintained. On the face of it, Articles 8 and 10 are utterly incompatible in this regard in certain cases. The noble Lord, Lord Lester, has made it clear that there is sufficient case history in Strasbourg so that we need not worry about that; but we do not know what will happen when these matters get into the English courts.
Imagine that you are an investigative journalist with a piece of hot news which may involve privacy. How can you be sure which way the courts will come down, if that is the way we are going to go? I believe it is because of that as much as anything that people like Mr. Alan Rusbridger, editor of the Guardian, have been calling for a privacy law to give certainty to the situation rather than allow it to be handled through the Bill.
You will not be surprised to hear that I believe that it will be far better that the matter should be left in the hands of the Press Complaints Commission unless it can be shown that that commission is failing. I do not believe it is. I think there has been considerable exaggeration over the problems of privacy. The commission has something like 3,000 complaints a year in toto, covering all sorts of things, including harassment and problems of children being approached when they should not be. A whole raft of complaints comes to us. Only one in eight refers to privacy.
I do not say that we send satisfied customers away even in those cases; there are those who want their privacy so that they can go on doing something nasty, just as Mr. Robert Maxwell used the libel laws to enable him to go on doing something nasty. There are also those who have a genuine misunderstanding--for instance, people who complain that their address has been given by newspapers when it is already on public record as a result of having been mentioned in court or at an inquest. Many of these cases are very sad, but the fact is that a lot of these people are not having their privacy invaded by the newspapers. In so far as it has been invaded, it has already been invaded by the courts.
After I had listened to the noble and learned Lord the Lord Chancellor and the noble Lord, Lord Lester, I was inclined to think that we were worrying about nothing. Having heard so many other speeches today, I am less certain of that. I am sure that we shall have to come back to this at Committee stage, when I have no doubt that the noble Lord, Lord Wakeham, will speak on behalf of the Press Complaints Commission.
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