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Lord Ackner: My Lords, I have not formally asked your Lordships to allow me to withdraw early. I have sat overdressed in this Chamber for about the past four hours. I hope that I will be forgiven if, on this limited occasion, I do withdraw. I shall miss, in particular, the noble Earl's speech upon which he has just embarked, which fills me with even greater regret.

Earl Russell: My Lords, I beg the noble and learned Lord's pardon for having intervened before he had sat down. It was entirely through inadvertence. Having done that, I must proceed to a further confession. In welcoming the Bill, I must begin by saying that I was brought up, as were some others among us, in the Pharisaical belief that we in this country are different from other men, and that our rights are not as much in need of protection as in some other places.

I must confess that when I first heard the case for this measure, argued by Mr. Donald Wade, as he then was, when I was 18, I did not appreciate its importance. In changing my mind, I have not developed a diminished affection for the legal system or the constitution of my own country. What I have learnt is that no system of government is that perfect this side of paradise. That is why I believe that this is a vital measure.

I not only welcome the measure; I warmly welcome the way in which it is done. The drafting of the Bill appears to me to be a thing of intellectual beauty. I admire it deeply. Whether that intellectual quality is from within the noble and learned Lord's department, or, as I sometimes suspect, also inside his skull, either way he is responsible for it, and I congratulate him on it.

The problem of reconciling rights with sovereignty is one that goes right back to Magna Carta, and the common law's treatment of that has had, over the centuries, a certain degree of ambiguity. I shall say something about the issue of sovereignty because it is occasionally misunderstood. There are two distinguishing marks of a sovereign power. One is that it can do what it will, and cannot be controlled but by itself. That mark will tend to show that if a sovereign power chooses voluntarily to place itself under a particular restriction it has every right to do so.

I would instance the Act of Parliament of 1554 which restored the jurisdiction of the Pope in this country. It was a voluntary acceptance of restraint. And whatever opinion one may have of that, it was a legal Act of Parliament and therefore could only be repealed by another. That is the second mark of sovereignty: that no Parliament can bind its successors. That is, as far as I can see, entirely unaffected by anything in the Bill. I hope that the Bill will not be repealed, but a future government will be well within their legal rights if they do so. So in that way also, and this is crucial, there is no challenge whatever to sovereignty.

It will be a different matter of course whenever the time comes when we start considering the question of whether we should have a constitution. I recall the noble

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and learned Lord, Lord Wilberforce, in this Chamber, pointing out that this state and the state of Israel are the only two western nations which do not have a constitution. Whether Mr. Netanyahu's successor may wish to reconsider that question is an argument upon which I shall not venture today. When that does happen, there will be considerable conceptual and intellectual difficulties to face, but that is in the future. It has nothing to do with the Bill.

We have in fact had two systems of law operating in this country, one international, and one domestic--the common law and the canon law. If that question had been handled with as much sophistication as is shown in the Bill, and if our 16th century judges had been as far-sighted as their 20th century successors, many of the arguments which lead to the Reformation need never have happened.

Among those to whom tribute has deservedly been paid today, I should like to include one more--the late Lord Taylor of Gosforth--

Noble Lords: Hear, hear!

Earl Russell: --for his Dimbleby lecture on this subject. The noble Lord lived to refute Mark Anthony, for the good which he has done has lived after him.

I should like to touch upon some of the arguments which have been put up against the Bill. The noble and learned Lord, Lord Mayhew of Twysden, expressed anxiety about judges making political choices. Judges have always had to make political choices. If the noble and learned Lord should read, for example, the judgment in the case of Rex v. Hampden (the ship-money case) he will see that that was inevitably a political judgment whichever way it went. That is an inevitable result of judges being empowered to ensure that the Executive governs according to law. It is tough on the judges, but I do not think that we should propose giving it up. I do not see that it will become more the case as a result of the Bill than it was before. It is merely going to be rather more in the open and rather more recognisable. I do not regard that as an evil.

The noble and learned Lord, Lord McCluskey-- I know that he is not in his place, but I have given him notice that I intend to raise these points and he has promised to read them--drew attention to a concern which one often meets, about the lack of certainty in drafting. He said--I think that I have his words down exactly--that language defining rights should be as precise and exact as language permits.

I should like to refer the noble and learned Lord to something which he quoted in part--the Renton Report on the preparation of legislation. That report argued that the pursuit of certainty in the legislator in the end becomes self-defeating, because the legislator cannot foresee all cases.

Furthermore, the report contains an extremely interesting chapter dealing with the difference between the English and European drafting of statutes. The English method tends to lay down a great deal of detail in the hope of certainty. The continental method tends to lay down general principles that can be interpreted in

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the light of circumstances. I hope that the noble and learned Lord, Lord McCluskey, will read Hansard, because I suggest that if he looks back to the 17th century Scottish statute book he will see that the law of Scotland has been drafted more according to the European principles than to the English. Both methods of legislation have weaknesses as well as strengths, but both are acceptable and both have worked in many contexts.

The noble and learned Lord mentioned the doctrine of due process. He took it up only in its American context, but it has a much older history. It was clarified in this country during the 14th century and ultimately goes back to the due process clause of Magna Carta. That illustrates the point that if one goes back in English law one gets back also to legislation by the expression of general principle. I hope that that answers the point about the European convention which I heard made in this Chamber by the noble and learned Lord, Lord Donaldson of Lymington. He drew attention to the difficulty of amending the convention, but that is the advantage of legislation in these general words. It allows the rights to grow. I have always said that legislators, like parents, must be prepared to let their offspring grow up. That is something which the method of legislation by general words does well.

At times the noble Lord, Lord Beloff, reminded me of King John on Magna Carta; he did not particularly approve of it. The noble Lord also reminded me of a remark made by John Stuart Mill:

    "When has there been a dominion which has not appeared natural to those who possessed it?".
We in Parliament are as subject to that as anyone else and we should not forget it.

There are matters on which the legislation could be improved--good though it is, no legislation is ever perfect. I wish to congratulate even in her absence the noble Baroness, Lady Amos, on a distinguished maiden speech. If I praise that speech in moderation it is only in order to ensure that what she said should not thereby be made controversial.

I strongly agree with what was said by the noble and learned Lord, Lord Ackner, about legal aid. It is a matter to which I hope we shall return. I agree with what was said by my noble friend Lord Lester about Clause 7 dealing with the restriction to victims. It is vitally important that bodies such as the Equal Opportunities Commission or a future UK commission on human rights should be able to bring proceedings. One of the many advantages would be in weeding out at an early stage some of the hopeless cases as well as bringing success to some of the stronger ones.

I agree with what was said about the importance of Article 13. I will give a specific example; it is the protection of asylum seekers with a claim which rests on Article 3 of the European convention and not on the UN Convention on Refugees. That applies in particular to the protection of victims of non-governmental persecution. Any of your Lordships who a couple of days ago listened to a BBC radio programme on Algeria will know well the kind of problems to which I refer. Those people are as much in need of protection as

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anyone else. Unless Article 13 is incorporated, they will continue to need to go to Strasbourg and the United Kingdom will continue to be found in violation. That would be a pity.

I will address only one point about the drafting of the Bill. All I intended to say has been said by other speakers. I wish to take up the issue of the procedure for quashing legislation which is found incompatible with the convention. It is known in the Chamber that I have less than total affection for procedure by regulation or for procedure under the Henry VIII clause. In this case, it is justified for the same reason as it was in the European Communities Act 1972, which contains the greatest Henry VIII clause in our legislation. It was introduced by none other than Lord Rippon of Hexham and many noble Lords will remember his distinguished opposition to the spread of Henry VIII clauses.

What is common in these two situations is that the Henry VIII clause is necessary to give effect to the prior and clearly expressed will of Parliament. If the Act reaches the statute book it clearly will be the will of Parliament that the convention should be observed. Therefore, if the Minister proceeds to quash legislation--I say to the noble Lord, Lord Kingsland, that it is entirely the choice of the Minister, no doubt after appropriate consultation with his colleagues--he will be saying that Parliament did not intend to pass legislation contrary to the European convention. That is something which a Minister in a sovereign parliament may perfectly well do. He is not bypassing the will of Parliament; he is giving effect to it.

That is one of the good procedures laid down in the Bill. With all the suspicion of regulation which I have expressed, I can perfectly properly not only support it but welcome it.

7.47 p.m.

Lord Bethell: My Lords, like the noble Earl, Lord Russell, I was brought up to believe that this country did not need a convention on human rights since our human rights were well enough protected. However, as I grew older and met exponents of human rights on the continent and in the United States I was converted to the idea that a written document is essential. Therefore, I am one of those who is pushing rather than pulling the part of the push-me-pull-you that is trying to encourage the movement in the direction of a convention on human rights.

I have given up the idea that human rights is an offshoot of the French Revolution and that it is connected with anti-British rebellion across the Atlantic. It was conceived when we were opposing Hitler and Stalin and, drafted in 1950 at the height of the Cold War in order to ensure that our ideas had moral superiority--as indeed, it turned out that they did--it enabled us to fight bravely against the communist menace.

Now the violators are fellow members. I take to heart the comment made by my noble friend Lord Kingsland that the new judges have little experience of the jurisprudence of a free society. But the new judges will be with us in the Strasbourg court and they must soon learn.

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If they do not learn, we must help them and work with them. Our domestic law will be appealable to them, whether we like it or not. Therefore, I want to give it a push not only in this country but also abroad.

The noble and learned Lord the Lord Chancellor pointed out that the committee, about which he spoke positively, could be the van of the human rights culture throughout the country. I suggest that it could be the vanguard also of a human rights determination throughout Europe and the world. I very much hope that when the committee comes into existence, it will not only deal with the observance of the convention in the United Kingdom but will have also a European dimension, a Council of Europe dimension, a European Union dimension and a dimension beyond these shores. I wonder whether the Government have it in mind to follow up that important initiative by incorporating into our law the covenant on civil and political rights, because that would take many of the ideas of the European convention outside Europe to other countries where those principles very much need to be looked at.

I believe that there will be quite a lot of work for the new committee to do. Some of the ideas put forward in the European Convention on Human Rights are, let us say, old-fashioned and some are rather shocking. For example, I was surprised to see under Article 2 of the convention the principle that it may be permissible to deprive an individual of his life if that person is trying to make an escape from lawful custody. I wonder whether that will be looked at by the committee and whether legislation at a domestic level can be brought in to deal with it.

The clause dealing with privacy is very complicated. Having heard the interventions of many noble Lords on that issue, I tend to believe, with the noble Lord, Lord Mishcon, that we need some sort of recognition of the right to privacy and, if this Bill will lead us towards achieving that, so much the better. We have seen what has happened in recent months to Princess Diana. We have seen telephones being tapped in order to discredit Ministers of the Crown and Members of Parliament. Secret cameras have been installed by newspapers. I am not sure that it is possible for the Press Complaints Commission to deal with all those problems as they should be dealt with. If this Bill can move that forward, so much the better.

Perhaps I may mention that in the European Union, those human rights criteria are used quite shamelessly in matters of trade and discussions with countries where human rights are violated. Some years ago, I was chairman of the European Parliament sub-committee on human rights. In those days, we insisted that a human rights criterion should be inserted into the Lome Convention and should be debated during the discussion of enlargement of the European Community, as it then was. A few months ago, it was debated in relation to the customs union for Turkey.

Therefore, I trust that the new committee will bear those matters in mind also, because violations of human rights can be used as a trade advantage. We see that with goods produced in China and other countries. Slave labour and other practices condemned by the European convention can lead to goods being produced very cheaply and sold extremely advantageously.

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It is high time that this Bill was brought before Parliament. I wish to pay tribute to the noble Lord, Lord Lester, and also to the noble Lord, Lord Avebury. Both noble Lords have promoted human rights as part of our "religion", our ideology, over a number of years. This day must be a happy one for them and I certainly shall be one of those who support the Bill this evening.

7.55 p.m.

Lord Donaldson of Lymington: My Lords, earlier this afternoon, one of my noble and learned friends came to me and said, "I am really very sorry that I shall have to leave and so shall be unable to hear you make your usual speech". My usual speech is, of course, in opposition to the incorporation of the convention. I have opposed it in the past on two basic grounds. First, it seemed to me, at any rate as a matter of logic, that a universal right to freedom of action or inaction unless restrained by law must be wider and should be more satisfactory than the specific rights set out in this or in the other convention. Secondly, I thought that it was for Parliament to set limits on that universal right to freedom as and when the need arose.

However, as I told my noble and learned friend, I must admit that I have changed my mind. I do not feel that in changing my mind, I am a sinner who has repented. Nor do I have any of the enthusiasm which is normally attributed to the experience by a new convert. It is simply that I have reassessed the situation as it is at present in my view.

It seems to me now that there were two conditions which had to be satisfied if a universal right to freedom was really to work properly. The first condition was there had to be a high degree of self-restraint and effective self-regulation on the part of those who were enjoying that freedom. One test, but not the only test, would be the old rubric of, "Do as you would be done by".

The second condition was that Parliament should be ready and willing to intervene where self-restraint and self-regulation failed and there was an acute conflict between freedoms or parts of my universal freedom. As the noble Lord, Lord Beloff, pointed out, this Parliament, for one reason or another--it may be lack of time or will--has singularly failed to do that.

Most obviously that applies to the field of privacy, in respect of which the media give complete priority to freedom of expression as enshrined in Article 10 over the right to respect for private and family life as enshrined in Article 9. Their self-restraint has certainly failed and I venture to think that, while self-regulation may be making some progress, the progress is too slow and limited to be acceptable.

I was depressed by the stand of the noble Lord, Lord Wakeham, on behalf of the press. I was depressed also, for rather different reasons, by the comment of the noble Lord, Lord Tordoff, that it is not the fault of the press that privacy is breached by giving addresses of people. He said that that was the fault of the courts which put that information into the public domain by allowing an address or a name to be given in court. In my respectful view, that shows a total lack of appreciation of the

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difference in kind as well as quality between revealing an address to a small audience and revealing it to millions. The same of course is true of other aspects of privacy.

There it is. As I say, for those reasons I have come to welcome, or at any rate to support, the passage of this Bill. I believe it to be a very cleverly crafted Bill. I have a great professional admiration for the way in which it has been put together. I am quite satisfied that it upholds the authority of Parliament, which is one of the things that has always troubled me. It avoids any conflict between Parliament and the courts.

I know that it will not politicise the appointment of judges and I hope that it will not lead to the public perceiving judicial decisions as being political in their nature. It is true that they will involve a measure of discretion and a measure of social and judicial engineering, but it will be done under the authority of Parliament and with the guidelines, such as they may be, which can be derived from the convention and from other decisions on the convention in other jurisdictions.

It is an occupational hazard for a judge to be accused of reaching a political decision. Those who have worked in the field of judicial review know perfectly well that, whichever way they decide a matter, they will be accused of playing politics. It may be wrapped up a little but, essentially, that is what is at stake. Indeed, in many of the judicial review cases the applicants had no hope--and knew that they had no hope--of getting a favourable decision. What they really wanted to do was to air their particular hobby horse and, when it failed, to blame the judge for that failure.

I believe that that will happen in the case of this new right. We will have to start with a deluge of claims of breach of the convention. If the Canadian experience is anything to go by, it will range from the arguable through the just arguable to the plain preposterous; such as, the young gentleman--indeed, he was not a gentleman really; he was of the male gender but was in fact a schoolboy--who said that his freedom of expression was being infringed in some way because at religious gatherings he refused to do other than the opposite of what the entire congregation was doing in terms of sitting down and standing up. I could go on with many other like examples.

I hope that one by-product of the legislation will be that the Strasbourg court will take a long hard look at decisions made in the British courts on the meaning of the convention and that it will, if necessary, extend the margin of appreciation which I am sure that that court ought to extend to most jurisdictions. I say that because what is right and proper in one country with one set of traditions and one history may be quite different from that which is right in another country with a different history, tradition and culture.

I welcome Clause 18 of the Bill, which I understand foreshadows the appointment of senior British judges to the Strasbourg court. If I may say so, it will be an experience for both of them.

I should like to say a few words about a topic raised by the noble Lord, Lord Borrie, which I believe to be of fundamental importance; namely, the definition of a

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"public authority" which is to be found in Clause 6(3). Perhaps I may refresh your Lordships' memory in that respect. The subsection says that a "public authority" includes--

    "a court"--
there is no problem about that--

    "a tribunal which exercises functions in relation to legal proceedings"--
similarly, there is no problem about that--

    "[and] any person certain of whose functions are functions of a public nature".
I just wonder what are,

    "functions of a public nature"?
I turned to the White Paper for assistance and at paragraph 2.2, it states:

    "The definition of what constitutes a public authority is in wide terms. Examples of persons or organisations whose acts or omissions it is intended should be able to be challenged include central government (including executive agencies)"--
of course, that is understandable--

    "local government; the police; immigration officers; prisons; courts and tribunals"--
and, again, I understand that. But then the White Paper says;

    "and, to the extent that they are exercising public functions, companies responsible for areas of activity which were previously within the public sector, such as the privatised utilities".
What has the fact that an activity was originally in the public sector got to do with the definition that we find in the Bill of people carrying out,

    "functions of a public nature"?
I do not believe that every activity by a publicly-funded or publicly-run agency in the past has necessarily been of a public nature. When one thinks of organisations like the BBC, which of course is not yet privatised, one has to admit that it clearly carries on functions of a public nature. Therefore, it is clearly subject to that definition. There cannot be any difference between the BBC, the ITV company or commercial radio. Therefore, I take it that they are all included in the definition of a "public authority".

Then we have to consider not the origin of people's functions but what the functions are today. I genuinely want to know what is a,

    "function of a public nature".
If we consider the press, it is obvious that one could not find a function which is of a more public nature. Whether or not an organisation is in the private or public sector, it is clearly dealing with the public in general and not particular members of the public.

That promptly put me in mind of Safeways; for example, is Safeways conducting a business of a public nature? It may be said that it is not but I am not quite sure why. There must be a better way of defining what is meant by a "public authority". It is quite clear that it does not mean a public authority; indeed, this is a pure term of art. Whatever the definition, it must be made clear that it is only a term of art. Various possibilities are open to us but I shall not labour them, save to say

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that one could start putting examples in of what are and what are not functions of a public nature, thus leaving it to the courts to draw the final line between the two.

One could resolve what looks to me very much like an inter-governmental conflict of view as to what was meant to be covered by this legislation, which has been papered over by this very clever formula. I must sincerely hope that that will be resolved by the Government before we reach the Committee stage. It is for them to say what the Bill is meant to cover and not a matter for Cross-Benchers, Back-Benchers, or whatever. It is for the Government to deal with the matter between now and the Committee stage.

8.8 p.m.

Lord Cocks of Hartcliffe: My Lords, if I should appear even more unsettled and indecisive than usual it is because I am shaken to the core by the announcement of the noble and learned Lord, Lord Donaldson of Lymington, that he has changed his mind. I have always found his speeches most persuasive--indeed, the most telling that I have heard in our various debates on the matter. Therefore, for the noble and learned Lord to recant now causes me grave concern, especially so when he said in such an ominous voice that the BBC was not yet privatised. As the Vice-Chairman of the BBC, I fear the very worst. I am sure that the noble and learned Lord must be privy to some information which escapes me.

When the noble Lord, Lord Holme, was paying tribute to the various organisations which had contributed to this success, he missed out Charter 88. I should have thought that that charter had had a very great effect on this movement to incorporate the convention. The noble Lord, Lord Borrie, referred to the growing movement for incorporation. We have had such debates so often now and, looking around the Chamber, I see many warm friends from the various interchanges that we have had. My views on this legislation are well known; namely, that it is the result of a cleverly organised pressure group purporting to represent large numbers of people but who are in fact a stage army.

I shall not repeat my remarks about Charter 88, which I have explained in great detail on a number of occasions. It is all a matter of public record. I do so to spare your Lordships from being subjected to that once again, but also in view of remarks made in this Chamber in answer to a Question of mine which I asked just before the House rose for the Summer Recess. I asked about the Pilgrim Trust. The noble Lord, Lord Jenkins of Hillhead, referred to my remarks as,

    "an example of the extraordinarily malign fantasies which occasionally seize the mind of the noble Lord, Lord Cocks"--[Official Report, 13/3/97; col. 426.]
It is not so bad having that said but when one hears the almost universal murmur of assent around the Chamber one must have pause for thought.

I shall not pursue that matter but I wish to give your Lordships an example of what I am talking about. I refer to the Independent newspaper. The recent influx of new Peers on this side of the House from both academic and cultured sources has meant that those of us who are classified as time servers are able to enlarge our

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vocabularies. One of the words which I have managed to pick up is "oxymoron". I hope that I have understood the application of this word. It seems to me that the title of the Independent is an oxymoron and that it should be called the Chronicle of the Chattering Classes. Noble Lords can watch this unfold for themselves. In the Independent on Sunday of 19th October there was an article on the cannabis campaign. According to the newspaper, people are saying that they want change. It provides a list of campaign supporters; one can add one's name to the list. In the Independent on Sunday of the following week appeared the headline,

    "The Campaign Everyone Is Talking About".
Further names are added to the list representing people from literary circles, the arts, the media, academia, medicine, pressure groups, politics, readers, the law and the state. However, there is no one from the manual classes. Even Charter 88 admitted that of the signatories to that charter one half of 1 per cent. came from the manual classes. These matters are not always quite so universally sought after as may be suggested.

One of the things which has upset me about this campaign is the way in which this country has been denigrated in order to generate a feeling that there must be change. I shall weary the House with just two examples. On 21st June 1994 the Opposition spokesman for constitutional affairs in another place, the honourable Member for Nottingham, North, said,

    "In August this year, Britain will go to the United Nations to stand condemned in the dock of world opinion for its failure to protect and extend citizens' rights in this country".--[Official Report, Commons, 21/6/94; col. 188.]
I have made some inquiries about the United Nations Human Rights Committee. The Library has kindly supplied me with the information that the United Nations Human Rights Committee meets in private and that the evidence is not available. That does not exactly ooze civil liberties and freedom of information, but that is the sort of thing that we in this country are being questioned about.

I refer to my other example of a recruiting letter for Charter 88. The third paragraph states,

    "Look around you. Here is a country of decent, altruistic, freedom-loving people. And here is a political system built on lies, half truths and stupid adversarial sound bites. The system no longer represents people. It has become a game played by an ever-diminishing minority of practitioners whose cynicism seems to increase every year, whose self-seeking is reported by the week. Many people do not relish the choices on offer at the General Election".
The letter is signed by Helena Kennedy, QC. It was written a little while ago.

The same thing happened before the war when we had this denigration and running down of the country. That can be seen on both sides. Albert Speer stated on page 238 of Inside the 3rd Reich,

    "[Hitler] stuck unswervingly to his opinion that the West was too feeble, too worn out, too decadent to begin the war seriously".
Sir Winston Churchill himself in his book, The Second World War, stated on page 232, when discussing the preparations of the Germans,

    "They must have time to complete the war machine, and a conciliatory speech now and again from the Fuehrer would keep these futile and degenerate democracies chattering".

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This is a serious matter as it means that although most people of good will can persevere, if there are others with sinister motives one has to be careful. Recently the BBC produced a good series on the Nazis. We should be indebted to Laurence Rees for that series. His main consultant was Professor Ian Kershaw of Sheffield University. Professor Kershaw described the Weimar constitution as,

    "'the last word in liberal constitutions' which drew on the best elements of the American and French constitutions and which contained what was imagined to be 'every possible protection' for the individual".
Yet Professor Kershaw remarked that,

    "Hitler was still able to set aside the entire constitution and its safeguards in one paragraph of the Reichstag Fire Decree of 28 February 1933".
The written constitution was no help to 6 million Jews, over half a million gypsies and goodness knows how many mentally handicapped, physically handicapped and mentally disturbed people and homosexuals who were butchered. It is no good thinking that by producing these written documents we shall automatically be safe. That is not the case. The matter requires constant vigilance. We are also indebted to Laurence Rees for explaining in his programmes that the Gestapo could not have operated without the co-operation of ordinary German people. The trial presently being conducted in France and what is emerging about the Vichy regime is also extremely interesting.

I refer to the number of cases in which this country has been involved. The noble and learned Lord, Lord Mackay of Clashfern, the former Lord Chancellor, wrote in the Financial Times of 6th December 1996 of the human rights myth and the concept that we are the worst country in Europe for human rights violations. That is simply not true as the figures are never presented as they should be with comparisons of population and the length of time that a country has subscribed to the convention. The figures indicate that, despite claims to the contrary, the UK's record bears scrutiny in comparison with the records of many other countries across Europe including Austria, Italy, France, Belgium--there is an example of human rights--the Netherlands and Sweden, when considered against our large population and the long length of time (30 years) that the right of individual petition to Strasbourg has been accepted in this country.

Let us proceed with this legislation but let us not tell ourselves that all over the country in one house after another people are agog to see whether this Bill will be accepted tonight. That is simply not true. Robert Hazell, in delivering the constitutional reform lecture on 14th July, said that one of the interesting points about the general election was the fact that there was virtually no discussion of constitutional issues at all. That is something which has been superimposed. At the Labour Party conference of 1994 the delegate for Bristol, South, Helen Holland, reported back that on Thursday afternoon,

    "The debate was headed 'A Modern Democracy' and was a quick romp through Local Government, Constitutional Reform, Electoral Reform, 'Equalities', Law and Criminal Justice and democratisation of Quangos".

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Although I do not have a bleeper I feel somehow that I am going off message. Therefore I end by saying that we should proceed with this measure if we think it is the right thing but let us not at the same time congratulate ourselves that a great upsurge of public opinion has brought it about.

8.20 p.m.

Lord Renton: My Lords, I hope that the noble Lord, Lord Cocks of Hartcliffe, will forgive me if I do not follow his interesting speech to any extent. However, I wish to reassure him of this: that this Bill will enable the people of this country to assert rights which they have enjoyed for 46 years but have had to go a long way to assert, very often only at great expense and above all with delay; and justice delayed is justice denied.

I must apologise for not being present during the speech of the noble and learned Lord the Lord Chancellor and my noble friend Lord Kingsland due to the fact that 70 miles away I could not get my car to start. I am sorry. However, I have listened to the rest of the debate. The first thing I wish to say is this. In the previous Parliament I supported the initiative of the noble Lord, Lord Lester of Herne Hill. I am sure that the whole House was interested in his speech. With some qualifications, it warmly supported the Bill. I am strongly in favour of the Bill. I rejoice that our courts are at last to have jurisdiction to do justice under the convention.

I shall return in a moment to some of the views expressed about the part to be played by our judiciary. However, before I go further, I hope that it is relevant and helpful to refer again to a matter that I mentioned when interrupting my noble friend Lord Beloff; namely, my experience 46 years ago in the Council of Europe when I was put onto the legal affairs committee. At the first meeting I attended, the main item on the agenda was to consider a draft constitution for a European Court of Human Rights. That draft had been prepared by officials and was available to us in French, with a translation into English. The committee deputed M. Rolin, the brilliant Belgian lawyer who defended Dr. Mossadeq at The Hague after the Abadan affair, and myself to consider those drafts. We spent two days at it. I greatly admired his initiative. We amended the drafts in both French and English.

Our work was accepted by the legal affairs committee and the council and became the constitution of the Court. Over the years I think that it has stood the test of time fairly well, although it is now suggested that it should be amended in one or two respects.

I mention that because we thought at the time that, although anyone would have a right to apply to the Court, its main jurisdiction would be to try cases either brought by one European government against another for a breach of the convention or cases brought by the Council of Europe against a particular European government. It was assumed that individual people would have the right to go to the European Court of Human Rights but that each country would make arrangements for the convention to be implemented in

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its own country with the help of its own courts. In most other European countries that has been achieved. Therefore I rejoice that at last our courts will be able to try those cases.

Having listened to most of this vital debate, I am tempted to comment on various views expressed. However, I shall confine myself to just three matters. First, my noble friend Lord Waddington--I am glad he is in his place; we are old friends and I have a great respect for his judgment--said that our judges would make new law and come into conflict with Parliament. That is nothing new. Our judges have been making new law since the beginning of time. Indeed, our common law is mainly judge-made law; and our modern, recent statutes often require difficult judicial interpretation either because they are ambiguous or obscure or sometimes because they have conflicting provisions. But the important point is that Parliament always has the last word. Parliament often has to amend, and over the years has amended, judge-made law. So there is nothing new about that; it goes on all the time.

The Bill proposes the application of the European Convention on Human Rights to the jurisdiction of our courts. I say this: "Where there's a will there's a way". It will be done. I have complete confidence in our courts.

My noble and learned friend Lord Mayhew of Twysden said that our judiciary will suffer as a result of the Bill. But it is worth noting that all members of the higher judiciary who have spoken in the debate, except the noble and learned Lord, Lord McCluskey, have welcomed the Bill. So have other eminent lawyers who are present. Speaking earlier in the debate the noble Lord, Lord Mishcon, made some important points and was broadly in favour of the Bill. I do not believe that my noble and learned friend Lord Mayhew has much to fear about the effect upon the judiciary. I am sure that they can take it anyway.

Thirdly, I remind my noble friend Lord Beloff that we have often had to incorporate international treaties into our Acts of Parliament. Normally it has worked smoothly and well. I agree that, although few problems have arisen as a result of our doing so, perhaps some of our commitments under the Treaty of Rome and within the European Union have caused and are causing problems. I refer in particular to the common agricultural policy.

Finally, while congratulating the Government on introducing the Bill, I hope that they will realise that the Bill will require much detailed consideration in Committee. Perhaps I may have the attention of the Government Chief Whip in your Lordships' House. I must tell the noble Lord that several days will be required on this vitally important matter. I do not say how many days, but enough days must be allowed.

8.29 p.m.

Baroness Williams of Crosby: My Lords, it is a real pleasure to be present on such an historic day as this. We are looking at what is pulsing across our constitutional Rubicon. I believe that when we look

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back we shall all be proud to have been here on this day. It is a remarkable day and one which many of us did not expect to see.

Let me also say that the debate has been enriched by a maiden speech which rose to the quality of such a day. As many other noble Lords have done, I refer to the distinguished maiden speech of the noble Baroness, Lady Amos, who I am sure will contribute greatly to our debates in this House. We are most grateful to her. She brought to this House a knowledge of human rights and the way they are exercised by those who have to deal with such matters. Many of us will listen to her in future with the greatest possible interest and attention. We are delighted that she is among us.

It was another historic moment hearing the noble and learned Lord, Lord Donaldson of Lymington, announce his conversion to supporting the Bill. I should like to have heard the noble Lord, Lord Cocks, who regrettably is not in his place, announce a similar conversion. After we have heard the noble and learned Lord, Lord Donaldson, on further occasions, we may yet experience that great moment--a blazing light in the Chamber--when that conversion follows the first.

The noble and learned Lord, Lord Wilberforce, who is one of the most distinguished contributors in this House, said that when the European Convention on Human Rights was first acceded to by this country--indeed, not so much acceded to as largely drafted--nobody supposed that it would be relevant to ourselves. It was in effect an exported convention for others less enlightened than we were. But as the noble and learned Lord, Lord Wilberforce, pointed out, as did my noble friend Lord Russell, we have slowly learnt that its application is also appropriate to ourselves.

The balance of power, struck long ago at the time of the Glorious Revolution, has been greatly altered by the weakening of the Crown, the weakening of this House--almost all of whose amendments in a very short period of time on many pieces of critical legislation were overturned by the previous government--and in some ways the weakening of the Commons itself. Nobody should underestimate the combined power of patronage and discipline on the consciences of MPs. Finally, there is the rise in the number of cases for judicial review, which has exemplified the weakness of our confidence in the fact that human rights will always be respected by our system and which I for one regard as being a symptom of the sicknesses of our constitutional custom and practice. For all those reasons, it is right and appropriate that we are discussing this Bill today.

Secondly, I wish to underline the reference made by a number of noble Lords to three issues in the Bill that we shall want to discuss in greater detail in Committee. The noble Lord, Lord Williams of Mostyn, may wish to comment on them. I shall mention them only briefly since they have been so well analysed by other Members of this House. The first is the concern in regard to remedies. The noble and learned Lord, Lord Ackner, my noble friend Lord Lester and the noble Lord, Lord Windlesham, all referred to the problem of whether, without direct reference to Article 13, the Bill makes adequate provision for remedies in all relevant cases.

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In that context, I wish to mention the statements made on behalf of Justice, with particular reference to remedies in cases where a law has been found to be not compatible with the European Convention but still remains the law. While that is not put right, what remedy can the person seeking redress find? It would be helpful if the noble Lord, Lord Williams, would make some reference to that set of cases.

I wish to refer briefly to another issue raised by a number of noble Lords, including my noble friend Lord Russell, the noble Lord, Lord Lester, the noble and learned Lord, Lord Ackner, and the noble and learned Lord, Lord Simon. It concerns what is to be the definition of the victim under Clause 7(1). Although I am not a lawyer, as must be clear, my understanding is that in this country when a case is brought for judicial review it is sufficient to show that there are good grounds for interest in the matter that is the subject of the review. I understand that "sufficient interest" is the test. The Strasbourg test is a narrower one. Some of us are concerned as to whether the narrowness of that test will mean that some cases will not be able to be brought.

The noble and learned Lord, Lord Ackner, referred to the difficulties in regard to people being sure that they can call upon legal aid, or at the very least that they will not have costs awarded against them that are so heavy that they might be unable to meet them. That problem is best met by taking classes of cases. Some of us are concerned that the non-governmental organisations and the statutory agencies which have played an absolutely central part in seeking redress at Strasbourg might find themselves unable to do so under our own legislation. I hope that the noble Lord, Lord Williams, may be able to comment on that.

The third matter of concern, again expressed by a number of noble Lords, concerns the issue of the "fast track". If I may pay a compliment to the noble and learned Lord the Lord Chancellor among others, it is a most ingenious solution to the problem of how to deal with both parliamentary sovereignty and the need to have a recognition of individual human rights in this country. I wonder whether we could not even further improve on the already remarkable decisions suggested by the Bill: by bringing the proposed committee on human rights to which the noble and learned Lord the Lord Chancellor referred more directly into relationship with that particular process.

For example, on the analogy of our own delegated legislation committee in this House, it should surely be possible for the new committee and its sub-committees to give an indication of their own view on proposals for affirmative resolutions to amend legislation to bring it into line with the requirements of the European convention; and perhaps also to be involved, as happens in New Zealand, with pre-legislative scrutiny of new Bills to ensure that the committee is also satisfied that they meet the requirements of the European convention. My noble friend Lord Lester referred to Australia. That is also correct; the Australian Senate has such a committee. Many of us would feel reassured by the greater involvement of Parliament without delaying the changes in the legislation that those proposals would imply.

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I wish to raise only two other issues, both of which are critical. The one area where I hope the Government might reconsider their position was eloquently referred to by the noble Baroness, Lady Amos, in her maiden speech. In a speech in July the noble and learned Lord the Lord Chancellor referred to a human rights commission as a driving force for change. Earlier in this debate he said that the issue was "not a matter of first account" in our debate today. With the greatest respect, I suggest that it is an issue of first account--and for these reasons. This country suffers from an absence of education and understanding of citizenship, which is a serious lacuna in an old democracy such as ours. Rights and their associated obligations constitute, as the right reverend Prelate indicated, a new kind of civic morality in our country--a civic morality to which, repeatedly, the new Government have referred as being at the core of their attitudes and aspirations.

I recognise the public expenditure implications of a commission, which is why I propose that it might be a very modest body at first. A commission would be charged not only with advising those seeking redress, those seeking justice, but would, I hope, become the spark for a new attempt in our education system to introduce the concept of citizenship alongside that of religion and ethics. I can think of nothing more appropriate at the beginning of a new Government than to accept the need for a culture of human rights among our children and university and college students, because that is the bedrock upon which a culture of human rights will be built in this country.

As a number of noble Lords, not least the noble and learned Lord, Lord Wilberforce, have indicated, the European convention is itself a rather old document. For example, it makes no reference to the right to information from government agencies; it makes no reference to some of the most troubling ethical issues of our times, those associated with scientific advance--genetic engineering, cloning and electronic surveillance. It cannot make such reference because those issues did not exist when the convention was drafted. It will need to be modernised and brought up to date. But who is to do that? That is another area where I believe a human rights commission could play an important part.

That brings me to my concluding thought. I have had the honour over the past year to serve on a body called the Comite des Sages. It is rather nice that in French one has no sex; one is simply a "sage", and I like that. As a sage, I have been involved with conferences in every member state on the issue of putting fundamental human rights at the heart of the European Union treaty. The Amsterdam Treaty made small advances in that direction by amending Article F to put respect for human rights at the centre of the treaty and then, much more radically, followed that up with an amendment, Article F(a), under which a country which fails to respect human rights can have its own rights suspended under the treaty. That is an extraordinarily radical move forward.

I should like to see the UK put at the heart of its presidency of the European Union the concept of human rights in Europe for recognition and reinforcement of

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those rights in line with what has now happened in the United Kingdom. What we are doing for our domestic law, extended to the responsibilities that we have under the European Union treaties, could make not just Britain but the whole of Europe a continent marked by a commitment to human rights and the obligations that are part of a recognition of those rights.

8.43 p.m.

Lord Henley: My Lords, I think we are all agreed that we have had a very good debate. We shall have heard from some 18 different lawyers, and the debate is none the worse for that. Among the distinguished speakers, we have been gratified to hear the noble Baroness, Lady Amos, make her maiden speech. I should like to be the first from these Benches to offer my congratulations to the noble Baroness and to say how grateful I personally was that she spoke and that for once I find myself not the youngest speaker in the House, which is on occasion somewhat grey-haired.

I have one small disagreement with the noble Baroness. In her one criticism of the Bill she said that she would like to see a human rights commission and was sad that that was not provided for. Its exclusion is one aspect of the Bill with which I am happy.

My noble friend Lord Kingsland made our position clear at the beginning of the debate. He laid out our two main reasons for being unhappy with the Bill but made clear that, in line with the Salisbury Convention, we have no intention of voting against the Bill in this House. He made it clear that we oppose the Bill because we feel it will lead to politicisation of the British judiciary and compromise the sovereignty of Parliament. Like many other speakers, he was unhappy about the fast-track procedure to change the law if the judges call for it. Put simply, that means that Parliament will not be given sufficient time to consider the implications of the changes to the law. I shall return to those issues.

I should like to begin by picking up the final point made by my noble friend Lord Renton, who stressed that this was a very important Bill which proposed fundamental changes to the law of the United Kingdom. This is a relatively short Bill of a mere 22 clauses and two schedules. I take it that the schedules simply reiterate what is in the convention and are simply unamendable; they are a statement of fact and there is no point trying to amend them here. The 22 clauses make what I and others consider to be fundamental changes to the legal system in this country.

It is important that we should have adequate time to consider the Bill at Committee stage, Report stage and, dare I say it, at Third Reading. I say that knowing that the Government Chief Whip is listening. We should also have adequate intervals between the different stages. To try to rush the Bill through, adhering to the minimum times as set out in the Companion and standing orders, would not be right.

A great many questions have been raised, and no doubt the noble Lord, Lord Williams, will address some of them this evening. Obviously, the more he can address this evening, the more time we can save later on. Concerns which must be addressed have been raised

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by noble Lords from all sides of the House, whether in favour of the Bill or not. For example, the noble and learned Lord, Lord Wilberforce, and the noble Lord, Lord Borrie, raised a number of detailed points of the kind with which this House is particularly good at dealing but which ought to be addressed in Committee. I must say to the Government Chief Whip that they might take some little time.

It is to be regretted that the Bill and the White Paper were published simultaneously. I believe that others, including the noble and learned Lord, Lord Wilberforce, would agree with me that a little more time to consider the implications of the White Paper would have been welcome.

I should like to deal with one or two detailed points. The first relates to resources. The noble and learned Lord, Lord Simon of Glaisdale, as a former Financial Secretary to the Treasury, said that he did not want to see growth in Government expenditure in this area. The resource implications are acknowledged in the Bill but are not addressed in any detail in the Financial Memorandum, as they ought to be. It is acknowledged that additional expenditure on courts and legal aid will arise. The total extent of that additional expenditure is not quantified; nor is there any commitment that it will be met by the Government. That is something that we shall wish to pursue at later stages.

As far as the courts are concerned, the Government surely have no alternative but to agree that they will provide the additional judges and court staff warranted by the extra work-load. I believe the position with regard to legal aid is more complicated--another issue addressed by the noble and learned Lord, Lord Simon of Glaisdale. As I understand it, the Government are intent on abolishing civil legal aid. Who do they think will act for individuals who wish to raise alleged breaches of convention rights in the civil courts? Conditional-fee arrangements are unlikely to help in that case. In many instances the cases will not involve the recovery of damages and even when they do so the level of damages will be low. Damages are to be based on Strasbourg awards and it is therefore unlikely that many lawyers would be willing to take on cases on a speculative basis. The Government therefore are purporting to give greater rights to citizens which they will be unable to enforce.

Turning to criminal cases, if convention points are to be raised in criminal proceedings, that will lead to additional and lengthier court hearings. We should look for a clear commitment that the legal aid schemes in both England and Scotland will meet that additional expense. I certainly welcome comments from the noble Lord, Lord Williams, on that issue when he comes to sum up.

The second detailed point I wish to make and one that has not been raised by any other noble Lord--I find that surprising since there have been a number of speakers from north of the Border--is what one might call the Scottish dimension, particularly after devolution. Once the Scottish parliament is up and running, it will not have the power to pass primary legislation that contravenes the convention. Such legislation will be

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ultra vires of the Scottish parliament. As a consequence of that, the Scottish courts will be given power to strike down such legislation even though they will not have the power to strike down Westminster legislation that they find equally objectionable under the convention. There will thus be a significant difference in the powers of the judiciary north and south of the Border.

The Scottish parliament will have power to pass legislation on topics such as law and order and education. When it does so, there may be instances where it enacts statutory provisions virtually identical to those enacted in Westminster in relation to England and Wales. The sentencing powers for criminal courts are an example of when that might occur. If the Scottish courts reach the view that a specific statutory provision contravenes the convention, then that statutory provision can be quashed, as we see from paragraph 2.21 of the White Paper. On the other hand, if the English courts reach a similar view about an identical provision in England, they will not have the power to quash it; they will only have the power to make a declaration of incompatibility--as was discussed at length earlier this afternoon in relation to Clause 4.

I doubt whether the general public will understand or accept that difference of approach. The reasoning in the White Paper at 2.13, explaining why the Government do not have a mandate for giving the courts power to quash Westminster legislation, fails to address the issue of whether they have a mandate to give such a power to the Scottish courts in respect of legislation from the devolved parliament.

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