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The Chairman of Committees: It may be helpful to the noble and learned Lord, Lord Simon of Glaisdale, if I were to indicate that his Amendment No. 116 has been grouped with Amendment No. 1. It will therefore be entirely appropriate for him, if he chooses to do so, to speak not only to his Amendment No. 3 which is also grouped with Amendment No. 1, but also to his Amendment No. 116.
Lord Mishcon: I am in a minority of Members of the Committee in that I have a simple mind. The reason for my tabling an amendment is that simple mind. I felt it appropriate for this Chamber in Committee to consider matters separately when looking at the desirability of having a main objects clause in a Bill as against a debate which may take place as to whether Article 1 or Article 13 should be included. I felt that the matter
might be muddled--I say that with the deepest respect--if the amendment of the noble Lord, Lord Lester, was before the Committee without any alternative to it.My main object is the one that I have just pronounced. I remember the discussion that took place in your Lordships' Chamber on the Children Bill when it was decided that a main objects clause was desirable. I felt it highly desirable that we continue with that practice, as recommended--as the noble Lord, Lord Lester, said--by the committee of the noble Lord, Lord Renton. That is a matter that ought to be before the Committee at this stage, and that is the reason Amendment No. 2 was tabled.
There is one further reason. The wording of the amendment of the noble Lord, Lord Lester--I entirely agree with its main purpose--will confuse. The main part, which I have omitted from my amendment, states:
- "The main purposes of this Act are to secure in law the Convention rights to everyone within the jurisdiction of the United Kingdom".
What about the rights that we have exercised to derogate? What about the rights we have exercised to reserve? Does it mean that there will be some argument before the courts that the main object of the Bill is to give to everyone who comes within the jurisdiction all the rights of the convention? There is a contradiction.
I also do not know--again I say with my simple mind--what the words mean,
- "to everyone within the jurisdiction",
to have the benefit of a legal right if it is contained in the convention. Does it mean someone who arrives within the jurisdiction complaining of a right which has been breached outside the jurisdiction? Once he is in the jurisdiction, is it the object of the Bill to give him those rights?
With the deepest respect to the noble Lord, Lord Lester--sometimes those words are not very sincerely said by lawyers but on this occasion they are very sincerely said--I feel that we ought to have before us an amendment which merely deals with the principle of expressing the main purpose. We should not confuse it with other issues.
3.30 p.m.
Lord Renton: The noble Lord, Lord Mishcon, with his usual modesty which is so unjustified, has put a very strong case before the Committee. Before I consider that case in any detail and that of the noble Lord, Lord Lester of Herne Hill, to whom we should be indebted for raising this matter, perhaps I may say that the Committee on the Preparation of Legislation, of which I had the honour to be chairman, which reported 20 years ago, has, in my opinion, in the light of experience since then, shown itself to be too cautious and too narrow with regard to the circumstances in which we recommended purpose clauses. Our legislation would have been better understood and been subject to less litigation if we had made freer use of purpose clauses.
I hope that that general comment is not inappropriate for this discussion because I am sure that all your Lordships will agree that, if we are to have this Bill, we
want our courts to be able to administer it effectively and to be able to do justice in the way that we would all wish, and not for the rights of those who are bringing cases to the court to be whittled down by technical arguments about the breadth of jurisdiction. Therefore, I say that either the amendment of the noble Lord, Lord Mishcon, or that of the noble Lord, Lord Lester of Herne Hill, and the consequential amendments which the noble Lord, Lord Lester, mentioned, should be accepted by your Lordships.It is with some hesitation that I venture to express an opinion in favour of one of those amendments over the other. I would prefer to have heard what the noble and learned Lord the Lord Chancellor, or whoever is answering on this matter, has to say first. But perhaps I may say, meanwhile, that I think the noble Lord, Lord Mishcon, made a very good point when he said that we want to ensure that it is the courts within their jurisdiction who need to be guided by us in this matter and that there should not be any argument about whether a person has come within the jurisdiction. Therefore, if I may say so, I prefer the amendment of the noble Lord, Lord Mishcon. But let us keep an open mind about it and see how the debate goes.
Lord Lester of Herne Hill: Before the noble Lord sits down, is he aware that I have no pride of authorship but I did not wish to complicate matters by including Article 1. I shall later explain it, but I would be perfectly content with any of the amendments, whether by way of purpose clause or by way of Amendment No. 6, to which the noble and learned Lord, Lord Ackner, has his name, to incorporate Article 13. The means we can argue about. But is the noble Lord aware that we share the same common objective, which is that the courts should be able to have regard to Article 13 in one form or another?
Lord Simon of Glaisdale: The amendment in my name to the Long Title has been grouped with these amendments, I think quite rightly. That may be an alternative way of indicating to the courts the underlying purpose of the Bill. Some indication of purpose is required if only because at Second Reading my noble and learned friend the Lord Chancellor seemed to cast some doubt as to whether Article 8 relating to privacy was really necessary. He did that, it is true, in the context of a preference for self-regulation by the press. But I think that, in all the circumstances, some indication of purpose is desirable.
The Renton Committee weighed the arguments as to when a purpose clause was desirable and they were rehearsed at Question Time the other day. If one can achieve the same object by amending the Title, it is almost always desirable, first, because it is generally much shorter; and, secondly, because, unless the Long Title indicates a purpose, it serves no useful aim at all. So I ventured to put down an amendment to the Title. At present it reads:
- "An Act to give further effect to ... the Convention".
I originally put down an amendment to substitute the word "municipal" in place of "further". "Further" really gives no indication to the courts of how much further. However, when the Printed Paper Office saw the word
"municipal", it connected it with town halls and thought I had gone quite off my rocker, and so spared me the printing of it. I substituted the word "domestic"--to give "domestic effect". I speak subject to correction by my noble and learned friend Lord Wilberforce, who is such an expert in this field. I think "municipal" is the correct term of art but "domestic" may be more easily understood.If it can be done by the Title it gives sufficient indication to the courts and is very much shorter. Of the two purpose clauses, I presume to agree with the noble Lord, Lord Renton, in preferring the draft of the noble Lord, Lord Mishcon, partly for the reasons that he gave and partly because it is considerably shorter.
Lord Windlesham: On Second Reading I expressed some doubts about the effectiveness of the enforcement procedures, although I supported the purposes of the Bill, and will continue to do so throughout this Committee stage. I made the point then that under the current arrangements--that is before incorporation--and as obscure as they may be, the necessary changes in administrative practice or in primary legislation have invariably followed findings of violation by the European Court of Human Rights. But will that necessarily be so in the future? It would be a paradox if it were not to be, bearing in mind the intention of this Bill.
Article 13 of the convention, which has been referred to already by the noble Lord, Lord Lester of Herne Hill, deals with the provision of remedies. It is not to be incorporated. It was omitted from the annex to the White Paper titled Rights Brought Home. The annex reprinted the text of all the relevant articles save for the first and No. 13. The list simply jumped from Article 12 to 14 in the annex. I say to the Minister at the Home Office, who may have had a hand in the drafting, that it would have made it a great deal clearer to readers had there been some asterisk, dotted line, or other symbol to indicate there was a missing article, and a crucially important one at that, in the annex to the White Paper.
Lord Simon of Glaisdale: I hope that the noble Lord will forgive me. There are amendments to reinstate the reference to Article 13. The noble Lord has just made the speech that I would have made in support of it.
Lord Windlesham: I am delighted to hear it. That is a preview of a speech which will no doubt be coming from such a forceful quarter at a later stage in the debate. Article 13 bears directly on the subject of the first two amendments so let us be clear about what it says. It reads as follows,
- "Everyone whose rights and freedoms 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".
Amendments Nos. 1 and 2 would make a formal statement of intention on the face of the Bill, or indeed in the Long Title under Amendment 116. The same point had occurred to me as it did to the noble and
learned Lord, Lord Simon of Glaisdale. If the draftsman objects strongly--we await with interest to hear what the reply will be from the Government Front Bench--and if there are powerful arguments against including a statement of intention in the opening clause of the Bill, it may well be that the Long Title is the better place for this. I express no opinion on that.Although we can readily accept it is the Government's intention to provide effective remedies--how could it be anything else--could it be their intention to provide ineffective remedies? Of course not. So why not have this provision on the face of the Bill? In trying to strike a balance between parliamentary sovereignty and the judicial process, which this Bill attempts in such an ingenious way, there is a real risk that the remedies provided for the victims of wrongful actions by public authorities may--human nature being what it is and politics being what they are--sometimes, however rarely, take second place to political expediency when it comes to bringing what may be highly unpopular changes in the law onto the Floor of the elected representative House of Parliament. I believe that there is a strong case for having this further safeguard against that contingency, to ensure that effective remedies can be attached to the newly enforceable rights.
3.45 p.m.
Lord Ackner: I submit with some degree of confidence that the simplest way to have regard to Article 13 is to incorporate it in the Bill, hence Amendment No. 6, which is that at page 1, line 10, after "Articles", insert "13 and". It is also even shorter than the amendment which the noble and learned Lord, Lord Simon, suggested. I cannot see why we do not go down that route. Instead of talking around Article 13, let us have it in.
It may be that my noble and learned friend the Lord Chancellor will be able to show that technically it is superfluous because it is already catered for. I do not mind if that is the case. Last week we had traumatic examples of how in certain circumstances appearance is so important. The appearance here is odd to a degree. We have a gap between Articles 12 and 14 which is totally unaccounted for. There is a blank, with no indication given to anybody as to why that should be the case.
After all the rhetoric which has preceded the White Paper and the publication of this Bill, surely the public are entitled to a clear, concise and unequivocal statement that effective remedies will be provided. I am sure that it is unworthy to make the comment, but there are some who feel a degree of suspicion which might be referred to as "reasonable suspicion", using the term from the Competition Bill, or even "reasonable grounds for suspicion".
They are these. First, what has been proposed is quite unusual. I understand that the right to an effective remedy under Article 13 is a substantive right under the convention which has been incorporated by every contracting state into their domestic law, including those which have done so by statute. So we are departing from what is normally done. That is some basis for suspicion.
Secondly, it may be that the Government, despite the rhetoric, have not quite got their heart--if a government have a cardiac region--in the right place in relation to some remedies. The Committee will recall the debate that we recently had on the crippling court fees which made it impossible for some members of society at the bottom end of the income sphere to be able to come to court. Those were fees which, for the first time, took into account judges' salaries, pensions, the notional rent and even, so it was said, the office cat. That is a reference which no doubt prompted the irrelevant but no doubt therapeutic confession made by my noble and learned friend the Lord Chancellor as to his success at the Bar at the expense, apparently, of his clients.
Thirdly, there is legal aid which is to be taken away. Nothing is to be put in its place except contingency fees, the application of which is totally absurd to this litigation which will be uncertain and which will not in many cases ask for damages, but if they are obtained, they are so small that with the cap applied to them they will attract no solicitor.
Finally, there is the reference to Article 8, which appears to provide for the first time a right to privacy. It resulted suddenly in an outburst in the media and, if one looks at the report of our Second Reading debate and at the speech of my noble and learned friend the Lord Chancellor, one finds that a very large part of his speech was devoted to trying to pour oil on ruffled waters. The press were so indignant that a right to privacy might appear that they suggested that Article 8 be omitted. It is no doubt an unworthy thought, but there are people who are unworthy and they take the view that the Government, like all governments, are scared of the media and that they will not do that which they should do in the circumstances. The Government should provide a framework in which the right to privacy should be set out and then applied by the courts; instead of which the matter is to be left somehow to the judges, who will no doubt cope as best as they can, case by case, to build up the jurisprudence on this very important subject.
As I have said, some hold the unworthy thought that the media and, in particular, Rupert Murdoch, scare the Government. The basis for that reasonable suspicion is what happened last Thursday on the first day of the Committee stage of the Competition Bill. In relation to Clause 18 of that Bill, it was proposed to take steps to do something about the predatory trading by Mr. Murdoch under which he maintained, and caused other people to maintain, huge losses by dint of using the enormous profits from BSkyB. Cross-party support existed for that amendment, but as yet that provision has not been pressed to a Division. So, there is some basis for having some anxiety about why that article has been left out.
If there is no reason to fear anything from its inclusion, there is no reason why the Government should not include it. Its appearance would nullify any false inferences, make everybody happy, and involve no expenditure of any kind in the process. I would therefore
support the simple amendment which also has the virtue of being backed by the noble Lord, Lord Lester. I refer to Amendment No. 6.
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