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Lord Lester of Herne Hill: Does the noble Viscount agree with me that the human rights committee has repeatedly and recently urged the United Kingdom Government to incorporate the substantive provisions of the covenant into UK law and to accept the optional protocol?

Viscount Colville of Culross: The first optional protocol. That happened at a session which was the one immediately before I joined it. That had nothing to do with the decision because I would not have been allowed to take part in it in any event. The noble Lord is quite right. The first optional protocol would still raise false expectations if it were ratified because citizens might go to the committee in the expectation which I have just mentioned. They would find themselves sadly disappointed because there is a very limited area in which the human rights committee can help them.

Earl Russell: Perhaps I may make one small point of clarification. I am very grateful to the noble Viscount for a great deal of what he said. I would like to clarify the purpose of my Amendment No. 115. It is not to incorporate the UN refugee convention any further than applied in 1993. It is to allow adjudicators and others also to take account of the European Convention on Human Rights, which is why it is relevant to this Bill.

Viscount Colville of Culross: I was simply using the noble Earl's amendment as a reference point as to what it is people tend to think is covered by Articles 12 and 13 of the international covenant and the provisions in the Fourth Protocol. I was not suggesting that the noble Earl was doing anything else.

Baroness Carnegy of Lour: I wish to ask the noble and learned Lord, Lord Archer of Sandwell, a question. When the people of Scotland voted in the referendum on Scottish devolution they were given to understand that one of the possibilities for them, if the White Paper was followed, was the reinstitution of the death penalty in Scotland, although it was not to be reinstituted anywhere else in the United Kingdom. I am not one of those who would have followed that line, but that was a definite understanding. Is it the noble and learned Lord's intention to block off that possibility through this amendment?

Lord Archer of Sandwell: Let me make it clear that it certainly was not my intention to intervene in a family quarrel in Scotland. I would not wish to pre-empt the result of any debate which the people of Scotland might wish to have. The matter of course can be dealt with in this Bill without in any way precluding the amendments which the noble Earl and I have moved.

Viscount Bledisloe: The noble and learned Lord's comment demonstrates the soundness of the point made by my noble and learned friend

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Lord Browne-Wilkinson. The amendment of the noble and learned Lord, Lord Archer, seeks to incorporate a ban on the death penalty into the definition of the convention. We would then have a situation where, as far as possible, primary legislation has to be read to accord with that abolition. The noble and learned Lord told us that on the statute book there is a law which says that pirates shall be hanged. How on earth does one render a provision that says that pirates shall be hanged compatible with the protocol? Equally, in the unlikely event that either a parliament in the United Kingdom or an assembly or parliament elsewhere says that there shall be a death penalty, how does one render those two compatible? One cannot. The only answer is that one then has a situation where a court says that the two are not compatible.

When there is a provision in substantive law that there shall be the death penalty for particular crimes, surely the right course is for the noble and learned Lord, Lord Archer, to bring forward a substantive Bill to abolish the death penalty rather than to create on the face of this Bill an obvious conflict.

Lord Archer of Sandwell: The whole purpose of Clause 4 is to bring to the surface precisely those situations where our legislation is inconsistent with what appears to be an international consensus. There will be a declaration and the rest of the procedure in the Bill would follow.

Viscount Bledisloe: We already know that we have that. The time for the court to do that is when, at the end of the argument, it finds that there is a hidden incompatibility. If we know now that there is such an incompatibility, let us have a Bill to abolish the death penalty.

Lord Henley: Perhaps I may intervene very briefly to offer a degree of support to the Government Front Bench. I do not know whether that will be the kiss of death to their argument. I await to hear that in due course. When I saw these two amendments I looked to the White Paper, which I believe it was agreed at Second Reading was admirably drafted even though we received it a little late. I looked at the arguments set out and which were rehearsed by the noble and learned Lord, Lord Archer, in Articles 4(10) and 4(11) in Protocol 4 and Articles 4(12) and 4(13) in Protocol 6. On this occasion I accept the arguments that the Government have put forward in the White Paper. Having listened to the arguments, I do not know whether the Government will be putting forward the same arguments again. On these Benches we shall certainly not support these amendments if they are pressed to a vote.

The Parliamentary Under-Secretary of State, Home Office (Lord Williams of Mostyn): I am speaking to Amendments Nos. 4, 5, 113, 114, and 115, the latter being the amendment of the noble Earl, Lord Russell. There have been carefully argued cases put forward in respect of each of these amendments.

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I shall do them justice by spending a little time dealing with them because there are serious and important questions here to which the over-arching answer is that propounded by the noble and learned Lord, Lord Browne-Wilkinson: that we know the purpose of this Bill and we seek to put it into effect as soon as reasonably and practically convenient.

Amendment No. 4 would include Articles 1 to 4 of Protocol 4 to the convention within the definition of convention rights. The noble Lord, Lord Campbell of Alloway, asked a specific question on Protocol 4. The reason it is not included in our scheme is that the Government have not ratified it.

Amendment No. 5 would similarly include Article 1 of Protocol 6; Amendments Nos. 113 and 114 would insert the text of those articles into Schedule 1 to the Bill. Amendment No. 115 is a distinct amendment to which I shall turn separately in due time.

I hope that the tone of my reply will be regarded as helpful rather than obstructive. Before we introduced this Bill the Government did conduct a review of the United Kingdom's position on the three protocols to the convention which contain substantive rights which we have not ratified. That is Protocols 4, 6 and 7.

I am obliged for the support of the noble Lord, Lord Henley. We explained very clearly in the White Paper that we intend to sign and ratify Protocol 7 once an opportunity arises to legislate to remove some inconsistencies between what is in our domestic law and the provisions of that protocol. Following that review, we have concluded that it is not presently possible to ratify either Protocol 4 or Protocol 6.

Protocol 4 contains important rights. They reaffirm the statement in the White Paper that the Government would like to see them given formal recognition in our international legal obligations. But that would be possible only if potential conflicts with our domestic laws could be resolved. As was foreseen by the noble and learned Lord, Lord Archer of Sandwell, there were particular concerns about Article 3(2) of the protocol which protects the right of nationals not to be excluded from their home state.

Our calculation is that that could possibly be relevant to the position of about 5.5. million people, which is a larger figure than that contended by the noble and learned Lord, Lord Archer of Sandwell. It would relate to various categories of British nationals: British dependent territory citizens, British overseas citizens, British subjects and British nationals overseas who do not presently have that right. These matters need careful consideration and therefore we have no plans at present to ratify the protocol.

As regards Protocol 6 and the death penalty matter, I have always had a conscientious objection to the death penalty for murder and in no circumstances that I can contemplate would I ever vote for it. But that is my own personal position. That is a conscientious view that I have come to and I know that other people have a different view. The Government's view has been that the issue of the death penalty--I believe that this has been common currency among all political parties--is a matter of judgment and conscience to be decided by

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Members of Parliament as they see fit. I believe that all political parties have taken a view on that particular aspect which is different from other human civil rights. Therefore, if we ratified Protocol 6, we could not reintroduce the death penalty for murder, short of renouncing the convention.

The purpose of the Bill is to give effect to those rights and freedoms which we have an obligation to secure to individuals in our jurisdiction as a result of our being a party to the convention--that is precisely the observation made more elegantly by the noble and learned Lord, Lord Browne-Wilkinson--it is not to make provision for other rights. In due time, if we decide to ratify Protocols 6 or 4 (or any other protocol), your Lordships will have noted that Clause 1 provides the power for rights in Protocols 4, 6 or 7 (or, indeed, in any other) to be added by order to convention rights. That is the scheme that we have set. It seems to be workable, practicable and attainable.

I now turn to Amendment No. 115 and remind the Committee briefly that the thrust of the argument put forward by the noble Earl, Lord Russell, was that it should be possible in appeals to the special adjudicator under the 1993 Act to rely upon rights under the European Convention of Human Rights. It is the Government's intention that it should be possible to rely on those rights in appeals to the special adjudicator under the 1993 Act and we shall consider further whether any amendment to this Bill is needed to allow that result to be achieved. Therefore, it is a happy, felicitous conjunction that the noble Earl, Lord Russell, wanted Amendment No. 115 to be debated now because I believe that we have fully satisfied his legitimate expectations.

6 p.m.

Earl Russell: I thank the Minister warmly for his concluding words. I thank also all those who have spoken in this extremely interesting debate. I should like to respond particularly to the noble and learned Lord, Lord Browne-Wilkinson, who made what was in some ways the most important speech of the debate. I take his point about not complicating things. He might possibly have chosen a more elevated article of furniture than the kitchen sink, but we shall not argue about that.

I chose this amendment precisely because at present cases regularly go to Strasbourg which would come under Article 4 of Protocol 4 and which, if the amendment were accepted, would be considered in British courts. The noble Lord, Lord Williams of Mostyn, has given me a practical and entirely satisfactory answer to that, for which I thank him warmly. I am particularly glad of his assurance that he will look again at the drafting of the Bill to see how that assurance can be made effective.

I must apologise to the noble and learned Lord if I gave him the impression that, as an amateur, I was literally laying down the law about the relationship between Protocol 4 and British law. I think that I used the words, "in line with". I did not intend to pass any judgment on whether the rights are, in fact, law, but

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merely to suggest that the concepts were not entirely unfamiliar with English legal thinking. If I appeared to suggest more than that, I regret it.

I agree with the noble and learned Lord, Lord Archer of Sandwell, that the death penalty is becoming a dead issue, but I see why the Minister feels otherwise and I do not intend to take the point much further. However, I wondered whether it makes the noble and learned Lord's point--I do not intend to mention any matter which is sub judice even in another jurisdiction--that in the past few weeks the Commonwealth of Massachusetts has chosen to change its mind on that issue.

To the noble Viscount, Lord Bledisloe, I say that if we were to pass the amendment tabled by the noble and learned Lord, Lord Archer, it would be perfectly possible to add a repealing schedule dealing with the relevant Acts about piracy. I should have thought that that would be a tidy way of dealing with that. However, having been given the most important practical point for which I have argued, in thankfulness I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

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