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Lord Lester of Herne Hill: My Lords, before the noble Lord sits down, perhaps I may make it clear that when I referred to the uncharacteristically intemperate remarks of the noble Lord, Lord Wakeham, I was referring to the reference to a villain's charter and the suggestion that the right to privacy was absolute and would gag the press. Of course, I did not mean to suggest in any way that the article did not deserve careful study or that the noble Lord, Lord Wakeham, was other than a dispassionate arbiter between the two public interests.
6.43 p.m.
Lord Borrie: My Lords, the noble and learned Lord the Lord Chancellor deserves to be congratulated on bringing the Bill to the House so expeditiously after the general election. Congratulating the noble and learned Lord the Lord Chancellor in no way diminishes my regard for the work of the noble Lord, Lord Lester of Herne Hill, in this field for many years. I believe he must be very pleased with the outcome. I also congratulate my noble friend Lady Amos on her extremely competent and valuable speech from her experience as chief executive of the Equal Opportunities Commission, which is, I believe, doing at least part of the work of the human rights commission which she would dearly love to see created.
There has for some time been a growing movement for incorporating into UK law the European Convention on Human Rights. I would say more about this if the noble Lord, Lord Beloff, were here, but, as he is not, I will simply say that I believe that the main point of the Bill is to ensure that our judges are enabled from the word go to determine issues involving human rights.
Time and again over many years--and we have heard something of this in the debate--it has been the doctrine of the sovereignty of Parliament that has proved a major stumbling block to incorporating the convention into our law. The brilliant design of the Bill is to say that, while no court may strike down legislation on the ground that it infringes the convention, the High Court may make a declaration to that effect, after which Ministers are expected to come to Parliament via the so-called fast-track procedure and amend the legislation so that it conforms to the convention.
If that works as seems to be intended by the Bill, the political reality will be that, while historically the courts have sought to carry out the will of Parliament, in the field of human rights Parliament will carry out the will of the courts. I realise that the Bill does not say that Ministers must follow the fast-track procedure if the High Court has declared that a statute contravenes the convention; it does not say that Parliament, through its two Houses, must pass the affirmative resolution put
before it; but the intention of the Bill surely is that government and Parliament will faithfully implement any declaratory judgment made by the High Court. I quote from paragraph 2.10 of the White Paper:
- "A declaration ... will almost certainly prompt the Government and Parliament to change the law".
The likelihood of blatant infringement of the convention by a UK government or UK government-promoted legislation is no doubt unlikely so far as future legislation is concerned. There is indeed a triple lock, or a triple deterrent, on any government promoting legislation which may infringe the convention. First, Ministers must state when introducing a Bill whether it is compatible with the convention. Secondly, the courts must interpret the legislation so that, as far as possible, it is compatible with the convention and, if that is impossible, a formal declaration may be made that it is incompatible. Thirdly, the European Court may do likewise. Up till now only the last of those three deterrents has been in place.
As we all know, the real problems arise when courts have to interpret the qualifications expressed in the covenant to the specified human rights and when one right appears to be in conflict with another. Several of your Lordships have pointed out this afternoon the conflict which may arise between the right of privacy and the right of freedom of expression. I should like to mention a conflict which has not been referred to this afternoon: the conflict which may arise between the right of freedom of expression and the right to a fair trial.
The great bulk of our UK law on contempt of court--both common law and the Contempt of Court Act 1981--is concerned with the kind of thing that several of your Lordships have talked about in relation to this convention--namely, with striking a balance. In my example, the balance is between the right of freedom of expression and comment about the accused and the right to a fair trial. It is not a new concept, but one has to accept that, if the convention becomes law, the balance may be struck at a different point.
In 1973, the House of Lords in its judicial capacity granted an injunction to prevent the Sunday Times from publishing an article concerning the thalidomide tragedy at a time when several court actions on behalf of the child victims of the drug were being negotiated with the British marketers, Distillers, with a view to an out-of-court settlement. The House of Lords' judgment was based on the view that "trial by newspaper" prejudged issues that were before the courts. (I apologise to the noble and learned Lord, Lord Simon of Glaisdale, who gave one of the leading judgments in that case, for my oversimplification of the judgment.)
The Sunday Times--not being satisfied with that judgment--petitioned the ECHR which ruled that the injunction violated Article 10 of the convention. Inevitably, argument in the European Court of Human Rights turned on the qualification allowed in Article 10 to the right of freedom of expression; namely, was the restriction "necessary" for maintaining the authority of
the judiciary? By a narrow margin of 11 to nine the European Court ruled that the restriction was not "necessary" for the purposes specified in Article 10.I mention the narrow margin of 11 to nine specifically because I say to Her Majesty's Government that bringing rights home will not alter the fact that interpretation of the articles in the convention and the interpretation of the qualifications and conflicts between the articles will be just as difficult for our judges as they have often proved to be for the judges in the European Court of Human Rights.
I shall round up with a few questions to the Government. I had some difficulty in interpreting "public authority" in the Bill. The Bill says,
- "It is unlawful for a public authority to act in a way which is incompatible with one or more of the Convention rights".
- "any person certain of whose functions are functions of a public nature".
Then I wonder how far it is intended that the definition of "public authorities" in the Bill is meant to be paralleled with the range of private bodies that the courts have said in recent years are subject to proceedings for judicial review on the basis that they have a "public element". In the presence of the noble and learned Lord, Lord Donaldson of Lymington, I am bound to mention the City Takeover Panel, which was regarded as one of those bodies. I mention too the Advertising Standards Authority, which is a self-regulatory authority presided over by the noble Lord, Lord Rodgers of Quarry Bank.
Those bodies are performing functions that would be performed by statutory public bodies if the private self-regulatory bodies did not exist. The Advertising Standards Authority exercises an important jurisdiction. It has a lot of power over advertisements that are said to offend against the well-known rubric that advertisements must be,
- "legal, decent, honest and truthful".
I commend the Bill but put forward the queries that I raised.
6.55 p.m.
Lord Wilberforce: My Lords, the Government are to be warmly congratulated on the White Paper they
presented to accompany the Bill. It is an extremely well-drafted document. It is well written in pleasant, readable style; it is comprehensive, clear and grapples with the main problems with which we are faced, even if we may not agree with all the solutions. I regret only that we have not had more time to consider it. There has been an exceptionally short interval between its presentation and the presentation of the Bill to enable those of us who are rather dull and slow of understanding to master our arguments. But my congratulations on the form of the document are sincere.The Bill is presented as a great constitutional advance, as a great movement of freedom, in resounding phrases relating to our civil rights and fundamental freedoms. And that is right. That has been true of other considerations and other Bills of this nature. However, it is important to realise that this is the crunch date. This Bill will be passed; it will be made part of the law of the land and its carefully drafted phrases will have to be applied by judges throughout the land--from the House of Lords right down to the circuit judges; it will have to be considered by Ministers and officials in preparing legislation and must be looked at much more carefully than we have felt it necessary to look at previous draft enactments of this kind. It is surely right therefore that we should look, as several noble Lords endeavoured to do, at the problems it creates to see whether we can identify them in order, first, that we may know what we are doing and the British public understand what we are doing; and, secondly, that so far as is possible we may try to mitigate some of those problems in the course of the Committee and later stages of the Bill.
This has been said in part but noble Lords will forgive me if I say it again in slightly different words. It is essential in considering this Bill to recollect that the European Convention on Human Rights started life as an international convention at the end of the war. It was an agreement between states as to the standards of values to be observed by all countries in the future. The noble Lord, Lord Beloff, made that point extremely well.
One only has to look at the document to know that that is so. They had their eyes firmly on what had been afflicting Europe in the previous five years--the loss of life in the concentration camps, arbitrary arrest (the Gestapo knocking at the door), torture and slavery, persecution for opinions and religion. Without entering into any historical arguments between the noble Lords, Lord Beloff and Lord Renton, I can pick up what was said by one of the most eminent British judges of the court about the convention. He said that it was a,
- "collective guarantee to ensure that rules and their application are in accordance with primary principles of law as recognised by civilised nations".
Moreover, it is interesting to note that one of our delegates, Mr. Ungoed Thomas as he then was, who was representing the Labour Party, vigorously opposed the idea that individuals should have rights under the convention which they could seek to enforce in the courts. It was not until many years later that the United Kingdom came round and accepted the right of individual petition. However, that was the position in 1950-51. Our delegates knew that all essential rights were confirmed to us by common law and there was never any intention that the new obligations by way of guarantee should be taken to supersede them.
Perhaps I may remind noble Lords of what our essential civil rights, as guaranteed by the common law, are: the presumption of innocence; the right to a fair hearing; no man to be obliged to testify against himself; the rule against double jeopardy; no retrospective legislation; no legislation to be given an effect contrary to international law--an old principle which has been there for years; freedom of expression; and freedom of association. All of those were in the minds of our delegates, firmly secured already by the common law to this country, and not intended to be superseded or modified by the new inter-state obligations in the convention.
Then, of course, evolution takes place. The right of individual petition is recognised and is exercised by many states. Many cases come before the court and the court gives decisions which are recognised and, remarkably, accepted by all the member states and their governments. So the demand for incorporation into national law gathers strength. The arguments for that--we all know them by now--are: greater access in terms of going straight to the court instead of going through the procedure in one's own tribunals. That is certainly a powerful argument, but not a total argument valid by itself and not to be weighed against others. Then we are told about "bringing home the rights". "Bringing home the rights" is a lovely phrase. It makes us think of the "Ashes", or perhaps the bacon. But when one gets away from the romantics, what it does is to superimpose an international instrument--no doubt partly drafted by British lawyers but intended as an international instrument and nothing else--on our existing system of common law and statute. That bring us to two main groups of problems.
The first is the question of parliamentary supremacy. I shall not say anything about that at this stage in the evening. It has been covered more than adequately by many speakers. For my part I shall be perfectly happy to accept the rather careful compromise, which has been worked out by the White Paper and the Bill, with perhaps a little consideration of the fast-track procedure, as to which I feel a few doubts. I am much more concerned with the substantive effect on English law of the Bill. Where is the beef? Perhaps I should say: where is the bacon? Another metaphor is: banners bake no bread. We want to know what the Bill is doing. Will United Kingdom citizens be better off, their liberties strengthened by new rights and by the exercise of powers by United Kingdom judges?
Something has already been said on the list of rights. There is no doubt that the list is not adequate for modern states. This is now an ageing convention. It was drawn up for limited purposes and it has now been overtaken in many respects by United Nations covenants and other covenants such as the convention on the rights of children. Many necessary rights are omitted, as indeed the White Paper agrees. However, on the other hand, it is right to say that the evidence to the House of Lords Select Committee a few years ago revealed 12 new rights not protected by the common law which were conferred by the convention. So we are getting an advantage that way--12 new rights through the convention not protected by the common law.
On the other hand, quite a number of those recognised by the United Nations convention are not there. Some of them are dealt with in connection with Protocols 4, 6 and 7. However, I would agree respectfully with what the noble Lord, Lord Lester, said some years ago, that, in spite of that defect--in spite of the ageing character of the European convention--this represents an important first step towards a modern British Bill of Rights. I am prepared to go along with it on that basis.
One then comes to implementation or compliance. We have Clause 3, which has been much discussed, as to the interpretation of legislation. I venture to agree with the noble Lord, Lord Kingsland, on this point. Clause 3 does not really represent a very great advance on what already is the position under English law. Then we come to a point which has just been raised by the noble Lord, Lord Borrie, about public or private bodies. That problem has bedevilled the European court. It has never been able to take a firm position as to whether these rights are enforceable against private bodies as well as public bodies. The Bill does not take a very clear position. I agree with the noble Lord, Lord Borrie, that Clause 6 requires very careful examination. It is a little labyrinthine between functions and acts and between public and private. We shall have to look at it carefully at the Committee stage. Therefore, I shall not say more about it now.
My third point is perhaps the most important one. I refer to the very general language used in the convention, which has to be interpreted now by the courts. It will be said, "The European Court has had to grapple with this legislation for a great number of years. Why cannot the British courts do the same?" But it is quite a different matter. It is one thing to admit access to the European court and the commission after you have gone through all the domestic procedures and after the case has been sifted by the commission. It is one thing to have interpretations then made of provisions in the convention. But it is quite another thing to throw the convention, with all its words, on to the lap of all the judges in our country in connection with whatever dispute, criminal or civil, anyone may be able to think up as a case for incorporating the convention.
It has been said that this will bring the judges into politics. The word "politics" is slightly unfortunate. It calls upon the judges to perform functions which are normally suitable for Parliament rather than for the judiciary. There is no doubt that that will happen. I shall not go through the rights again. Many noble Lords,
including the noble and learned Lords, Lord McCluskey and Lord Simon, have already dealt with them. However, there is no doubt that these vague phrases will have to be interpreted by the courts in connection with concrete cases. One thinks of immigration and the use of the word "family". Your Lordships may have seen a Written Answer last week to the noble Lord, Lord Tebbit, who asked what "family" means. Does "family" mean a man and a woman in marriage or a man and a woman in concubinage? Does it cover a man living with a man? Does it cover a woman living with a woman? Naturally the Government are not going to give a very clear answer to those various conundra. But such problems are bound to arise and, as many noble Lords have said, will put the judges in great difficulties. We have to face these difficulties if we are to be realistic.It may be said, and will be said, that the courts will have the benefit of decisions of the European Court itself and of the commission--and of the new court when it is set up under Protocol 11. Clause 2 of the Bill says that account must be taken of any of their decisions. That will help a little, but one must not be too hopeful about it. Cases are dealt with by the European court on a case to case basis in relation to particular facts and it is properly reluctant to go beyond individual cases. Some assistance may be got there. Even so, the judges in our country will be left with difficult decisions on these difficult and ambiguous phrases.
We need not go so far as to fear the making of political appointments to the judiciary. That is a bogey which is not a real one. However, one cannot at the same time be oblivious to the vast swings of judgments which one finds in the United States, where the Supreme Court is given the power to decide these political questions between the different courts--the Vinson court, the Warren court or the Burger court. Those things do happen. People do change and there are swings of result according to the changes.
I hope that your Lordships will take these difficulties into consideration at the later stages of the Bill. We may be able to help a little--perhaps on the margin of appreciation, though I do not think I have time to go into that now.
I should like to make one final point which nobody else has yet made in relation to Clause 18, which deals with the appointment of judges to the European Court. I have had some personal experience of the difficulty which now exists when appointing judges to that court even on a temporary basis. I have no doubt that it is absolutely right to remove those difficulties by provisions such as those in Clause 18 in order to enable our judges to work at that Court. Curiously, the provisions do not allow for the sending of Lords of Appeal--I do not know why--but start with the Court of Appeal and go down. It is excellent, however, that our judges should be able to take their place at the European Court. There may be some problems because, as I understand it, the tenure of office in the new reconstituted Court would be six years. I am not sure that we would be willing to part with a Lord Justice for six years, but that point could be considered later.
One other provision looks a little ominous. I refer to Clause 18(6)(a), which gives power to the Lord Chancellor and the Secretary of State to make provision for the pensions of those judges. I hope that the noble and learned Lord the Lord Chancellor will be able to resist Treasury niggling with regard to the pensions of those judges. It is an important and unique job and the fiscal implications should not be paramount. I hope that the provisions will not be ungenerous. Subject to those points, however, I am glad to support the Bill.
7.11 p.m.
Lord Windlesham: My Lords, this very important constitutional Bill starts in this House rather than in another place and I am sure that all noble Lords will agree that credit is due to the noble and learned Lord the Lord Chancellor and to the noble Lord the Leader of the House for arranging that that should be so. It is entirely appropriate that the Bill should begin in your Lordships' House in view of the long interest that has been taken here in human rights legislation and in the incorporation of the convention, and in view of the presence of the Lords of Appeal, past and present, who have already made such notable contributions to our debate. I am sure that all of us will remember in particular the entirely characteristic speech of the noble and learned Lord, Lord Scarman.
Although during the past two decades I have followed with close attention and great sympathy all of your Lordships' previous debates on the convention, I have never spoken on the subject before. That has not been due to any lack of interest, but has been because I was unsure of where the balance of advantage lay between present practice and enabling litigants to enforce their convention rights in the domestic courts. I believe that the time has now come and that this step should be taken. I support the Bill and do so in the hope that there will be a realistic appreciation of some of the difficulties implicit in the proposals. The speech that we have just heard from the noble and learned Lord, Lord Wilberforce, illustrates that point.
In evaluating legislative proposals, at least three criteria can be adopted. The first is the intention; the second is the method proposed; and the third relates to the likely outcomes. As to the intention, surely most of us--if not perhaps entirely all of us--can agree that any extension of the protection of the civil rights of individuals against the power of the state is a wholly desirable objective. The noble and learned Lord, Lord Wilberforce, spoke of 12 new rights that are likely to become part of British law as a result of incorporation.
The method proposed is ingenious. An adroit scheme is set out in the White Paper and the Bill to reconcile the judicial process with parliamentary sovereignty.
So far, so good; but what about the likely outcomes? The Government have introduced the Bill in the context of an ambitious programme of constitutional reform. The aim is to enable British courts to provide redress to persons who may have suffered from breaches by public authorities of rights that are enshrined in the convention. The timescale will certainly be shorter than the present extended, long drawn out process which is involved in applications to Strasbourg.
My question this evening, about which little has been said so far, is whether the remedies will prove to be effective. First, decisions may be quashed. That is certainly an effective remedy for the individual. Secondly, a court that already has the power to order payment of compensation or to award damages in civil proceedings may do so if it finds that the public authority has acted in a way which violates a convention right--although in reaching that finding the domestic court must take account of the principles of the European Court of Human Rights in relation to awards of compensation.
However, remedies for unlawful acts by public bodies must go further than compensating the victim. Remedies for acts by public bodies which are found to be wrongful require those policies (or the legislation which authorised those actions) to be changed. It is at that point that I have some reservations about the likely effectiveness of the procedure contained in the Bill. What I say is of course speculation. All this lies in the future and nobody can be sure of it; but I believe that this aspect of the Bill deserves some careful thought.
In some cases, policies can be changed within the scope of the existing enabling legislation. However, in other cases it may be necessary to amend, or to repeal, certain provisions of primary or secondary legislation. I note that Clause 10 does not place an obligation on a Minister to take action which is necessary to "remove the incompatibility"--that is the phrasing used--with the convention; it merely states that he "may by order" make the necessary modifications. I have no doubt that in Committee we shall return to debate whether the word "shall" should be substituted for the word "may" or some variation thereof.
Although the courts will not be allowed to set aside Acts of Parliament, as we have heard from the Lord Chancellor and others, they will be able to make a declaration that legislation is incompatible with convention rights, so bringing to the attention of Ministers and Parliament the need to change the law. However, respect for parliamentary sovereignty, understandable as it is, means that under the system envisaged the ultimate decisions will be made not only in an elected, representative assembly--that is the justification--but in an assembly which is highly politicised and adversarial. At present, the main shortcomings of recourse by litigants to Strasbourg are the lengthy delay and, in some but by no means in all cases, the cost. I add that qualification because, like other noble Lords, I have been concerned about life sentence cases. In such cases, the applicant is still in custody and the costs are very low on the litigant's side although the Government may employ counsel, which would somewhat increase the cost. Less obvious though it may be, the strength of the present proceedings lies in the way that the decisions of the court in Strasbourg are enforced. Subject to one derogation as to the period of time in which a suspect can be held in detention in Northern Ireland, changes in administrative practice or substantive law have followed in every case in which a violation has been found against the United Kingdom. Sometimes those decisions have been intensely unwelcome to British Ministers; for example, the series
of decisions limiting the Home Secretary's arbitrary powers of continued detention for life sentence prisoners after the expiry of the penal element of their sentence. When my noble friend Lord Waddington spoke so vigorously in the debate earlier today I wondered whether when he was Home Secretary the iron had entered into his soul.The current enforcement procedures are low key and partly diplomatic. The channels are via the Council of Ministers in Strasbourg to the Whitehall departments in London. The keynote is quiet persuasion behind the scenes, not confrontation. These are the steps which precede the introduction of changes that have been required--changes to which the United Kingdom has been committed by binding treaty obligation in international law.
The test of the system set out in the Bill, as explained by the noble and learned Lord the Lord Chancellor when he opened the debate, is whether the outcomes of court proceedings will be implemented as effectively as happens at present with a much less visible system. Would it not be a paradox if, at the end of the day, the high ideals which are the impetus for this legislation were to lead to a weakening of the compulsion on politicians and officials to make the necessary changes to protect the rights of an individual, however unpopular, who brings a case in the domestic courts under the European convention?
7.23 p.m.
Lord Ackner: My Lords, I support this Bill. I have a number of points which are better aired in Committee. I urge only one point upon your Lordships tonight. In his compact preface the Prime Minister says, among other things:
- "We believe it is right to increase individual rights...new rights, based on bringing the European Convention on Human Rights into the United Kingdom law...the Human Rights Bill...will give people in the United Kingdom opportunities to enforce their rights under the European Convention in British courts".
- "Bringing these rights home will mean that the British people will be able to argue for their rights in the British courts...British judges will be enabled to make a distinctively British contribution to the development of the jurisprudence of human rights in Europe".
Until quite recently the proposed legislation received a good press from the media, but the penny has dropped that if one introduces the convention one introduces it in its entirety, including Article 8. That article introduces the right to privacy. This matter has given rise to considerable anxiety, which I believe overlooks Article 10, which clearly balances the right. I understand the concern that Parliament is not providing the framework that should be adopted and interpreted by the courts in dealing with a law of privacy and that it is being left on a case-by-case basis for the judges to work out. That may be a lengthy and not altogether happy process, in the course of which it will be the judges who get the flack rather than the Government. That may be one reason for ducking the responsibility.
The particular point I make is that rights are valueless unless there exists the means to enforce or protect them. No doubt that is the reason for Article 13, which provides:
- "Anyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity".
Because a failure to provide the means to enforce renders the rights valueless, very recently I tabled a Starred Question. In my supplementary question I asked the Minister:
- "Does he agree that the correct, indeed the only, answer that can be provided to the recent cynical and contemptuous observation by Mr. Richard Murdoch, that any law of privacy would only inure to the advantage of the rich and famous, is that legal aid should be made available for those who cannot afford to bring forward a reasonable cause of action? Secondly...does he agree that speculative litigation in the form of conditional or contingent fees--if allowed in this new field of jurisdiction--would be inadequate to ensure proper access to justice?".--[Official Report, 14/10/97; col.391.]
What exactly is to happen? I submit to your Lordships it is nonsense to suggest that contingency or conditional fees, which are said to be about to replace legal aid, will provide access to justice in this field. First, to a large extent one is entering uncharted territory where the prospect of evaluating success is very difficult and therefore it will be an unusual solicitor who is prepared to take it on. Secondly, if there is to be an obligation to take out an insurance to indemnify the successful defendant, if there is one, against the costs, the premium will be impossible. Thirdly, damages, if they are to be awarded, are to follow the scale awarded in Europe, which does not appear to exceed more than £15,000. If that is to be the source of the uplift in costs and is itself to be capped, as has been suggested by the noble and learned Lord, at 20 per cent.--the recommendation of the Law Society--then the supply to the successful solicitor to stimulate him into taken up this type of case seems to be small.
Then, of course, if litigation is directed to establish incompatibility, and succeeds, I do not believe that in that situation there is any power to award damages. It is thus essential, if legal aid is to be abolished in general, that special provision be made for human rights claims. Otherwise, the impressive observations of the Prime Minister, to which I have referred and quoted from the preface, will ring hollow and Mr. Murdoch will triumph. If that happens, the Government, with their huge majority, will not be forgiven for what the public, I think, will consider to be an act of cowardice.
7.32 p.m.
Earl Russell: My Lords, in welcoming the Bill I must begin with a confession.
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