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Lord Campbell of Alloway: I believe that the intention is, so far as possible, to avoid journeys to the court at Strasbourg and to the Commission. If that be the case, it is not perfectly clear that this should be a mandatory provision and not "taking into account". It is
Lord Browne-Wilkinson: Perhaps I may be heard briefly on this point because soon it will concern me intimately. I am not a great supporter of the amendment. The doctrine of stare decisis, the doctrine of precedent, whereby we manage to tie ourselves up in knots for ever bound by an earlier decision of an English court, does not find much favour north of the Border, finds no favour across the Channel and is an indigenous growth of dubious merit. It would be unhappy if in dealing with the convention law we enacted that an English court, unlike any other court subject to the convention, was bound to follow an earlier decision of the European Court at Strasbourg.
It is an unhappy fact, inherent in all legal systems, that they develop. Decisions move some of the earlier things one wishes one had never said and greater light comes to be cast. It is undesirable when old cases are carved in stone and are incapable of being moved along.
I make my second point with all respect. I have found the jurisprudence of the European Court of Human Rights excellent, but a major change is taking place. We are now seeing a wider range of judges adjudicating such matters, a number of them drawn from jurisdictions 10 years ago not famous for their observance of human rights. It might be dangerous to tie ourselves to that, and I hope that your Lordships will not favour the amendment.
Lord Simon of Glaisdale: I found the phrase "take into account" far too vague for a legal concept. I tabled an amendment to replace it with the word "follow", which is on the lines of the thinking of the noble Lord, Lord Kingsland. It seemed to me to be the proper word in respect of paragraph (a), but I was much less certain about the other paragraphs. The noble Lord, Lord Kingsland, is a great expert on that matter and no doubt in reply he will clear it up.
At present, if an English court does not follow a decision of the European Court of Human Rights, the unsuccessful litigant can go to that Court and obtain a reaffirmation of the views of the Court. Under those circumstances, I cannot see the difficulty in enjoining that English courts should follow the decision. Indeed, it seems to me in every way advantageous in saving an unnecessarily expensive and extremely dilatory visit to Strasbourg.
The Lord Chancellor: In common with the noble Lord, Lord Lester, I was intrigued to hear the noble Lord, Lord Kingsland, move the amendment and be more European than the Europeans. I shall not embarrass him by asking him--as he sits on the Front Bench and comes to tell us what he proposes to invite the Committee to do about the amendment--whether he and his party support in principle the Bill and its
The noble and learned Lord, Lord Browne-Wilkinson, said that he was not a great supporter of the amendment. I am an opponent of the amendment and I was relieved when the noble and learned Lord moved into the substance, as distinct from the courtesies of his speech, and it emerged that he was really an opponent after all. Clause 2(1) requires a court or tribunal determining a question in connection with a convention right to take account of relevant judgments, decisions, declarations and opinions made or given by the European Commission and the European Court of Human Rights and the Committee of Ministers of the Council of Europe. Amendment No. 9 would provide that such judgments, etc., were binding if made or given by the European Court of Human Rights, while leaving their status under the Bill unaffected; that is to say, they would have to be taken into account but would not be binding if made or given by the European Commission of Human Rights or the Committee of Ministers.
We believe that Clause 2 gets it right in requiring domestic courts to take into account judgments of the European Court, but not making them binding. To make the courts bound by Strasbourg decisions could, for example, result in the Bill being confusing if not internally inconsistent when the courts are faced with incompatible legislation. In addition, the word "binding" is the language of precedent but the convention is the ultimate source of the relevant law. It is also unclear to me how "binding" would fit within the doctrine of margin of appreciation under the convention. I think that "binding" certainly goes further--and I understood that was what the noble Lord, Lord Lester, had in mind--than the convention itself requires. It was in that sense that I said I thought that the noble Lord, Lord Kingsland, was being more European than the Europeans.
We must remember that Clause 2 requires the courts to take account of all the judgments of the European Court of Human Rights, regardless of whether they have been given in a case involving the United Kingdom. That was the point made by the noble Lord, Lord Lester: the United Kingdom is not bound in international law to follow that Court's judgments in cases to which the United Kingdom had not been a party, and it would be strange to require courts in the United Kingdom to be bound by such cases. It would also be quite inappropriate to do so since such cases deal with laws and practices which are not those of the United Kingdom. They are a source of jurisprudence indeed, but not binding precedents which we necessarily should follow or even necessarily desire to follow.
The Bill would of course permit United Kingdom courts to depart from existing Strasbourg decisions and upon occasion it might well be appropriate to do so, and it is possible they might give a successful lead to Strasbourg. For example, it would permit the United Kingdom courts to depart from Strasbourg decisions where there has been no precise ruling on the matter and a commission opinion which does so has not taken into account subsequent Strasbourg court case law.
These cases aside, it is not considered necessary to set out to provide that United Kingdom courts and tribunals are bound by Strasbourg jurisprudence, since where it is relevant we would of course expect our courts to apply convention jurisprudence and its principles to the cases before them. More fundamentally, this amendment, to my mind, suggests putting the courts in some kind of straitjacket where flexibility is what is required. That is what Clause 2 achieves, and, in my submission, our courts must be free to try to give a lead to Europe as well as to be led. The correct principle is to require our courts to take into account relevant European jurisprudence. That is what Clause 2 and indeed also Clause 8(4) in the special context of damages require our courts to do.
We will of course reflect on the arguments of those who have spoken for these amendments in the time between Committee and Report stages, but at present I have to confess that I am not persuaded to favour this amendment.
Lord Kingsland: In thanking the noble and learned Lord for his response, I should like to say that the Opposition is against this Bill, although of course we are bound by the Salisbury Convention not to vote against it; but we are against it and our amendments are intended to convey that. If the noble and learned Lord accepts all our amendments we may change our position on that, but at the moment we are against the Bill.
Essentially, what the noble and learned Lord has said in his reply is that he is incorporating the substance of the convention but not its jurisprudence. It is therefore, in my submission, superficially the incorporation of an international treaty but in effect the presentation to this Chamber of a domestic Bill of Rights. It is our position in principle that a domestic Bill of Rights giving the kind of power that is given to the judges sits unhappily with our constitutional traditions, and it is for that reason and not for any European reason that this amendment has been tabled. If we were going to propose a domestic Bill of Rights, we would certainly want to look very closely at the substance of the convention to see how we could improve it, because I think that there are many things in the convention--which was after all drafted not long after the Second World War--which are now in need of refurbishment. So if it really is a domestic Bill of Rights, why does not the noble and learned Lord take this opportunity to look at it in the light of 1997 and to think again about the text? In short, as the jurisprudence of the convention is not binding, judges can really range over the substance of the Bill in any way that they want.
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