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Lord Lester of Herne Hill: Before the noble and learned Lord sits down, perhaps he can help me in one respect. I strongly support the scheme of the Bill, but I remain in the dark about exactly what is intended. Clause 13 provides that a person may rely on a convention right in proceedings other than a challenge to the act of a public authority. Clause 1 informs us that the convention rights mean the rights set out in Articles 2 to 12 and 14 of the convention, and so on. Under Clause 13, in an appropriate dispute involving, let us say, libel law where someone seeks to rely on Article 10 of the convention as a guarantee of the right to free speech, in arguing that there was proper scope for the law of defamation, as I read the Bill, the person may rely on Clause 13, as he can indirectly at present and as was done in the Derbyshire libel case a few years ago.

If I am right on that point, it seems to me that the convention rights are to that extent part of our domestic law and can be relied upon, as Clause 13 states. Will the noble and learned Lord the Lord Chancellor say whether I am right on that; or is the intention to cut

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down the existing position where, for example, common law as developed in the courts matches the convention rights and under this Bill treats the convention rights as part of our law?

The Lord Chancellor: I shall consider what the noble Lord said. The position appears to me to be quite straightforward. It may be more complicated; I shall reflect upon it.

As I understand it, Clause 13 means only that a person may rely on the convention right in the way in which the Bill provides that individuals may rely upon convention rights, but his convention rights are, as it were, a floor of rights; and if there are different or superior rights or freedoms conferred on him by or under any law having effect in the United Kingdom, this is a Bill which only gives and does not take away.

Lord Simon of Glaisdale: I am most grateful to those noble Lords who supported the amendment. I am glad that my noble and learned friend has undertaken to consider the argument. Nevertheless, I am bound to say that the tone of his reply, as with the earlier amendment, indicates rather that he has nailed the flag of legislative self-righteousness to the mast. I hope that we shall not have that throughout the Committee stage.

My noble and learned friend said that it is not the intention to make the convention rights part of our domestic law. I am bound to say that, with all the propaganda and rhetoric, that is entirely contrary to what people were led to understand. My noble and learned friend gives only one reason why those rights which we were hoping to be vouchsafed should not be part of our domestic law: that to do so would conflict with a later provision of the Bill. However, that provision of the Bill is not engraved in tablets of stone brought down from a holy mountain. In fact it is already subject to an amendment.

I must anticipate what that later provision to which my noble and learned friend referred does. He said in effect, I think, that it abrogates the doctrine of implied abrogation of an earlier statute. As our law stands at present, when a later statute is inconsistent with an earlier one, the earlier one is abrogated impliedly in so far as it is not expressly abrogated. I appeal to my noble and learned friend to say if I have not accurately summarised the law. The later provision of the Bill alters that, and provides that notwithstanding that the later statutory provision which is invoked in the convention rights is inconsistent with the earlier one, the earlier one will nevertheless continue. That is no reason for refusing the citizens of this country the convention rights they were expecting. I trust that the time will come shortly when we shall alter that provision. It is extremely inconvenient. It means that where a later statute is inconsistent with the terms of the earlier statute, the earlier one is not impliedly abrogated as it is at present, but continues until Parliament goes through the complicated provision of a statutory order bringing the two into proper relationship.

Surely the simplest thing, which also maintains the sovereignty of Parliament, is to maintain the existing law. The existing law is very much a manifestation of

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the sovereignty of Parliament: the right of a later Parliament to abrogate the provisions of an earlier one. I am bitterly disappointed that so fundamental an amendment as this does not find ready acceptability. However, I undertook not to press any of my amendments to a Division and of course I shall stand by that. However reluctantly, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Henley moved Amendment No. 8:

Page 1, line 23, at end insert--
("( ) No amendment may be made by an order under subsection (4) unless a draft of the order has been scrutinised and reported upon by the appropriate committee of each House of Parliament, and approved by resolution of each House of Parliament.").

The noble Lord said: On behalf of my noble friend Lady Young, perhaps I may deal briefly with the amendment. I think it was Sydney Smith who said that he never read a book before reviewing it; it prejudices a man so. In this case I took the trouble to read the Bill. I find that Clause 20(3) deals with the very point that we addressed in the amendment. If I can have an assurance from the Minister that that is the case, obviously I shall withdraw the amendment post-haste.

Lord Williams of Mostyn: Sydney Smith also said that when he died he hoped it would be eating foie gras to the sound of golden trumpets. I know how he feels. I give the assurance.

Lord Henley: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 agreed to.

Clause 2 [Interpretation of Convention rights]:

The Deputy Chairman of Committees (Lord Dean of Harptree): I should inform Members of the Committee that if Amendment No. 9 is agreed to, I cannot call Amendment No. 10.

6.30 p.m.

Lord Kingsland moved Amendment No. 9:

Page 2, line 2, leave out from ("right") to end of line 4 and insert ("shall be bound by any judgment, decision, declaration or advisory opinion of the European Court of Human Rights, and must take into account any--").

The noble Lord said: Amendment No. 9 refers to Clause 2(1) which states:

    "A court or tribunal determining a question which has arisen under this Act in connection with a Convention right must take into account any judgment, decision, declaration or advisory opinion of the European Court of Human Rights".

The amendment seeks to replace the expression "must take into account any" with the words "shall be bound by".

I can see the superficial attraction of the Government's text. Our courts have hundreds of years of experience in balancing individual rights against public obligations. I am in no doubt that their decisions, if they are examined by the judges in the European

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Court of Human Rights, carry great weight with them and will in time enrich the jurisprudence of that Court. However, there is another side to which your Lordships' House should give greater weight.

The problem is that if our judges only take account of the jurisprudence of the European Court of Human Rights, we cast them adrift from their international moorings. The Bill, crewed by the judges, will have no accurate charts by which to sail because the judges are obliged only to take into account the provisions of the convention. That means that the Bill is effectively a domestic Bill of rights and not a proper incorporation of international rights. It means that the judges, at the end of the day, although they must take account of the Bill, are not obliged to act on it and can go in whatever direction they wish. I have great confidence in Her Majesty's judges, but I believe that they need greater guidance than they receive from the expression "take into account". That is the reason for my amendment. I beg to move.

Lord Lester of Herne Hill: I do not agree with the amendment. The only obligation under the convention is in Article 46, paragraph 1, which obliges the United Kingdom to abide by the final judgment of the European Court of Human Rights in any case to which it is party but not otherwise. The amendment seeks to bind our courts by other judgments of the European Court of Human Rights, even though the convention does not compel that conclusion.

It is profoundly ironic that the noble Lord, Lord Kingsland, should seek to move an amendment which is more European than the convention requires, especially in view of the Benches on which he sits and the Front Bench from which he speaks since his party has not been conspicuous in urging that European rights should be given great force in our domestic law.

In any event, to give the judgments of the European Court great persuasive force in our courts is sufficient. If a judgment of our courts turns out to be incompatible with the convention and is against the applicant, no doubt the European Court of Human Rights will eventually so decide.

In the meantime, I believe that our courts, being close to our citizens and our social and political circumstances, are best able to exercise the margin of appreciation enjoyed by our public authorities without being hampered unnecessarily by a doctrine of stare decisis which is not required by the European Convention on Human Rights.

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