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Lord Archer of Sandwell: One of the advantages of following the noble Earl, Lord Russell, is that the case for the amendment has been fully and effectively deployed and any embellishment by me would be superfluous. I do not propose to trouble the Committee further with the amendment, except to make one comment which I believe underlies all the amendments in this group. I am very conscious that the Bill is concerned with procedures. It relates to the procedures by which a citizen shall be empowered to avail himself or herself of the rights which exist independently of the Bill. I was unable to be present for the Second Reading debate, but had I been, it would have been the principal burden of my contribution. I believe that the Government have wisely directed the Bill to the rights, already set out in the convention, which command a wide consensus, and have refrained from seeking to change or widen those rights.
I am very aware that in formulating rights as human rights there is a danger of foreclosing legitimate debate and that we should be careful to apply that process to rights where the debate is substantially concluded. But, as the noble Earl said a few moments ago, formulations of human rights are not set in stone. If they become
static and atrophied they lose their cutting edge. The world changes and the Committee may recollect that the convention is now 50 years old. So from time to time it has been necessary to add protocols to the convention to ensure that the convention rights shall be consistent with a changing world and with the changing cultures of the people to whom they apply. The Government have wisely recognised that by incorporating in the Bill Articles 1 to 3 of the First Protocol.Which protocols then ought to be included in the Bill? What is the criterion for incorporation? I hope that when my noble friend Lord Williams replies to the debate he will give us some idea of the Government's thinking on the criterion for that. But if I may hesitantly suggest an answer, I believe that it would be appropriate to include a right if it embodies a standard which commands a broad consensus. Of course, that does not mean that there shall not be found any individual or even bodies of individuals who may think differently. That would reduce the Bill to an unnecessary statement of the obvious. Nor can it mean that there may not be found those who, while they pay lip service to the rights, do not in fact observe them.
I find it hard to believe that there is any serious controversy about the principles in the rights embodied in the Fourth Protocol. So far as I am aware, it is not suggested that there is any substantial body of opinion opposed to them. The Government, in the White Paper, give a quite different reason for excluding them. They say that some of our present laws may be inconsistent with them. The Government say that they are important rights and "We, the Government, would like to see them given formal recognition in our law". If then some of our laws are inconsistent with them, is it not to our domestic laws that we should be directing our criticisms?
My reading of the White Paper is that it may be that what is really in the Government's mind is a reference to laws which may be in conflict in relation to different categories of British nationals. The noble Earl did not direct his mind to this, but I wonder whether the problem relates to the British Nationality Act 1981 which certainly denies right of entry to specific categories of British nationals. If that is so, I venture to suggest three answers.
First, I know of no potential large influx of British nationals, even if we were to change the existing legislation. The most obvious relates to Hong Kong, but those who are Dependent Territories citizens, British nationals, and who are at present denied the right of abode, probably number about 180,000. Of those, the large majority are likely to wish to remain in Hong Kong. Of the remainder, the majority have a number of options open to them.
The second answer is that the United Kingdom could enter a derogation or reservation in relation to the territorial place of origin of certain categories of British nationals if it thought that there was a good reason for excluding them. Personally, I hope that that would not be the option which appeals to the Government.
The third answer is that in any event the rights of those with whom we are concerned in the Fourth Protocol are not determined by the Bill. It may be that it is in Strasbourg, either in the debates of the governments concerned or in certain circumstances in the court itself, that their rights may be determined. I should have thought it better that they should be determined here in the courts in Britain.
I turn now to Amendment No. 5. I am grateful to a large group of non-governmental organisations who have participated in discussions on this, particularly to Amnesty International and Justice. Like the Fourth Protocol, the Sixth Protocol has been signed by the United Kingdom but not ratified. In suggesting that it satisfies the criterion which I ventured to suggest a few moments ago, I do not seek to provoke a debate on the merits of the death penalty. If that belongs anywhere, it certainly does not belong in the parliamentary process of this Bill. On the contrary, I venture to suggest that the protocol satisfies the criterion precisely because those debates are things of the past.
A consensus cannot mean that there is no room for dissent by a single individual or group of individuals. That could be said of probably every right set out in the convention. The Government's reason for omitting the protocol from the Bill as set out in the White Paper, is that the issue is a matter of judgment and conscience to be decided by Members of Parliament as they see fit. I should have thought that that was true of all the rights in the convention. The application and priority of the right to freedom of expression may be a matter about which one can hear more than one opinion. The right in the First Protocol to educate one's children in conformity with one's own religious and political convictions is not free from controversy.
If there were a Division in either House of Parliament on those matters, I can well believe that it would be said to be a matter of judgment and conscience. But these are matters on which the essential debates have been substantially concluded. That is why they can properly be enshrined as human rights. The question which now arises is: is that true of the right enshrined in the Sixth Protocol? If the issue were a live one, I would not seek to suggest that further debate should be foreclosed. But for any issue there comes a time when it is burned out and when it belongs to history.
The Sixth Protocol raises two issues: whether the death penalty should be re-introduced for murder and whether it should be abolished for those offences in respect of which it remains on the statute book. The death penalty for murder was abolished in 1965, following a free vote in Parliament. There have been subsequently a number of parliamentary debates as to whether it should be re-introduced, but Parliament has never decided to re-introduce it. The last occasion which I have been able to trace was on 21st February 1994, during the Committee stage in another place of the Criminal Justice and Public Order Bill. The proposal was defeated by 403 votes to 159. So far as I am aware, it has never been resurrected.
The offences for which the death penalty still remains on the statute book include treason, piracy and some offences by members of the Armed Forces against
military law. It has not been used for treason since 1946 and I cannot believe that realistically there is any prospect that it will be. The last recorded execution for piracy was in 1830. The retention of the death penalty for offences against military law was last discussed in your Lordships' Chamber on the Motion of the Army, Air Force and Naval Discipline (Continuation) Order of 19th July 1993, when my noble friend Lord Williams of Elvel pointed out that if an IRA sniper shot and killed a member of the Armed Forces he would not suffer the death penalty, but if in order to avoid that outcome the soldier ran away he would be liable for execution. I doubt whether anyone would be found to defend that situation.It may be that no one is likely to need recourse to this legislation to avoid suffering the death penalty. But there are countries where the issue is still a live one and some of them are countries where trials are not always conducted as we would hope. To include the Sixth Protocol may send an important signal.
The proposed text of the final declaration for the Council of Europe's summit calls for the universal abolition of the death penalty. When my noble and learned friend replies, I hope that he can tell us whether the Government support that text. If so, it would help substantially in creating a climate in which less enlightened states comply with that declaration if the United Kingdom announced that it regarded the issue as substantially closed and embodied it in the Bill. The United Kingdom Government have a commendable record in supporting calls for the abolition globally of the death penalty. It does not add to our credibility if it can be replied that we still have it on our statute book.
5.30 p.m.
Baroness Williams of Crosby: I wish to address myself briefly to Amendments Nos. 4 and 5 and do so from a rather different viewpoint from that of the noble and learned Lord, Lord Archer of Sandwell, or my noble friend Lord Russell.
In looking at the White Paper's response to this set of proposals, we are looking at what may be a major missed opportunity for the Government. The Foreign Secretary, in another place, raised the hopes of many people when he said that he regarded human rights as the central pillar of the foreign policy of this Government. It attracted attention from all over the world.
As my noble friend said and as the noble and learned Lord, Lord Archer, said, virtually everything that is embodied in the Fourth Protocol is already recognised in British law or in British practice. We understand that the Government have committed themselves to repealing the continuation of execution orders in the case of Northern Ireland, which was one of the difficulties that arose with regard to Article 2. Article 1 has already been discussed and it is now generally agreed that imprisonment for debt is not something that should happen in a civilised country. Incidentally, it would save a certain amount of public expenditure if it ceased in this country, as it surely should. Article 2 is qualified by Article 3, which allows the right of free
movement of peoples to be fundamentally limited in certain situations where organised crime, trade in drugs and other matters are concerned.The Government are passing up a major opportunity in this matter--I hope they will reconsider the position they take in the White Paper--because at the present time we are in a position to give a major lead to other countries within the European Union and specifically to those countries which are currently applying for membership of the European Union. As a country we have insisted that those who join the Council of Europe and who propose to join the European Union should sign and ratify the protocol that we are discussing in this Chamber this evening. It is strange that a government which should be giving a lead in matters of democracy, human rights and civil liberties should not be willing to sign the protocol they ask others to sign--countries far less able to do so and with far less experience in that field than the United Kingdom.
We have this opportunity now. I see no great objection to it. Both Article 2(1) and Article 4, which concerns the expulsion of aliens, are of critical importance in establishing a democratic culture in central and eastern Europe. Anybody who has seen the horror of Bosnia surely cannot disagree with that proposition. It would therefore be right and apposite, in view of the Government's commitment to human rights and their foreign policy, if the noble and learned Lord the Lord Chancellor were to see fit to undertake in this Bill to complement that stand by saying that the United Kingdom is willing to sign Protocol 4 and, on that position, to advocate powerfully that it should be signed by all those countries which wish to become part of European democracies within our region of the world.
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