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The Lord Chancellor: I am grateful to the noble Lord, Lord Lester of Herne Hill, for his kind and considered observations about the quality of the Bill, but I doubt that those will persuade the noble and learned Lord, Lord Simon. In my view the amendments would destroy the intended purpose of Clause 3. In speaking to Amendment No. 14 I take the opportunity to speak to Amendments Nos. 17, 18 and 22.
To accept the amendments would destroy the intended purpose of Clause 3 and the scheme of the Bill. That clause sets out the relationship between the convention rights and both primary and subordinate legislation. The central point is that the Bill provides for an interpretative approach. As Clause 3(1) states:
- "So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights".
The noble Lord, Lord Lester, has consistently said that when in future statements of compatibility are made by Ministers, that will encourage the judiciary in its interpretative endeavours.
Having decided to adopt that interpretative approach it is of course helpful to the courts (and other public authorities) for the Bill to signal what the position is intended to be where a compatible construction is impossible. That information is supplied by subsection (1) itself and also, in conjunction with subsection (2)(a), by paragraphs (b) and (c); that is, the two paragraphs which the noble and learned Lord is seeking to remove. Those two paragraphs make it clear that the requirement to interpret legislation in accordance with the convention rights does not mean that incompatible primary legislation, or inevitably incompatible subordinate legislation, since deriving from parent legislation which itself is incompatible, is to be
invalidated or otherwise made inoperable because of that incompatibility. They ensure that the courts cannot disapply, refuse to give effect to, or ignore Acts of Parliament on the grounds of their incompatibility with the convention rights. That is what we intend. We submit that this scheme is consistent with the sovereignty of Parliament as traditionally understood.The effect of removing Clause 3(2)(b) and (c), and the inclusion of a new subsection (4) in Clause 2, stating that the Bill does not affect the doctrine of implied repeal would be contrary to the principles underlying the Bill. Under the method adopted by the Bill to give effect to the convention rights, it is just not relevant to cite the doctrine of implied repeal. The convention rights will not, as I have already said when responding to a previous amendment in the name of the noble and learned Lord, become part of our domestic law, and will therefore not supersede existing legislation or be superseded by future legislation. In both cases the convention rights will be used to interpret and give effect to that legislation.
The two amendments to Clause 4 are consequential to Amendments Nos. 14 and 17. Clause 4 is the mechanism provided by the Bill for handling situations where the court finds legislation, whenever enacted, to be incompatible with the convention rights. It avoids the pitfalls of this set of amendments by ensuring that the courts are not brought into conflict with Parliament when a discrepancy is identified. It is also in harmony with the UK's existing constitutional arrangements. When we reach that clause, we will be able to discuss this matter in more detail.
I do not accept that the Bill adopts a scheme which is cumbrous and circuitous. On the contrary, I believe that the scheme is right. It rests happily with our traditions. It is intellectually coherent and, with respect to the parliamentary draftsman, it is also elegant. The scheme of this Bill is that if statutes are held incompatible on convention grounds, then it is for Parliament to remedy that. We do not wish to incorporate the convention rights, and then, in reliance on the doctrine of implied repeal, allow the courts to strike down Acts of Parliament.
The intended scheme of this Bill rests more comfortably with our tradition of parliamentary sovereignty. I believe also that this is a scheme of incorporation which is welcome to the higher judiciary. The doctrine of implied repeal is not without its own difficulties, but I have no quarrel with the noble and learned Lord's short statement of that doctrine. We are, by Clause 3, inviting Parliament to accept a wholly different scheme of incorporation. It is one which rejects the route of the doctrine of implied repeal, which, together with express incorporation of the convention rights, the noble and learned Lord would prefer us to follow, but it is one which we do not intend to follow.
7.15 p.m.
Lord Lester of Herne Hill: Before the noble and learned Lord sits down I wonder whether, without imposing upon him too much, I could clarify just one matter. I fully support everything that he has said.
I wonder whether he could help in this way: does it follow from what he said that where there is existing legislation, before the Human Rights Bill becomes law that has to be interpreted so far as possible to comply with convention rights in accordance with Clause 3(1), that the courts' obligation will be to strive, wherever possible, to read the existing legislation in accordance with the convention, using whatever interpretative tools they think fit, and, if they fail, to grant a declaration of incompatibility, if that is their conclusion? That is how I understand the position. One does not need the doctrine of implied repeal, which would involve saying that the existing statute is, as it were, void, has been overtaken by a subsequent Act, but instead, by a process of judicial interpretation, the existing legislation is to be read in accordance with the convention rights wherever possible, which is what Clause 3(1) says. If that is the position, I am entirely content.
The Lord Chancellor: In my view that is what the Bill means. The interpretative provision of Clause 3 applies to legislation in being prior to the passage of this Act and legislation that comes into being after the passage of this Act. I see no need for any reliance on the doctrine of implied repeal.
Lord Simon of Glaisdale: I am afraid that, once again, I found that a most disappointing reply. The main thrust was that the doctrine of implied repeal, which is part of existing law, is inconsistent with the scheme of Clause 3. So it is, because every amendment tends to be inconsistent with the provision of the Bill. If every amendment is to be dismissed because the Government have drafted their Bill otherwise, we might as well tear up the Marshalled List and go home.
I asked my noble and learned friend whether he accepted that the doctrine of implied repeal was an existing part of English law. I believe he accepted that it was, although he said that there might be difficulties in it.
The noble Lord, Lord Lester of Herne Hill, thinks that this provision in the amendment may be unnecessary, because the courts will endeavour to construe previous legislation consistently with the convention rights. I said that that should, and will, be so. But nevertheless, there are cases of inconsistency. The Government have faced them so far as legislation passed after the Bill has been enacted. They accepted that the inconsistency should be dealt with by a way which is consistent, however cumbrous--I know that my noble and learned friend does not like that word--but at any rate it can bring the two into line consistently with the doctrine of parliamentary sovereignty.
However, that is quite unnecessary so far as legislation passed before this Bill becomes law is concerned, because the doctrine of implied repeal deals with it immediately and consistently with parliamentary sovereignty. All the appearances are, I am afraid, that my noble and learned friend is devoted to his Bill--every line, every word, every note of punctuation. However, I really must ask him to consider again the argument that has been put.
Members of the Committee may remember the story of a mediaeval English king campaigning in France. He and his men came to the walls of a small town and demanded that the citizens should surrender the keys. The city fathers came out, clad only in their shirts and with halters round their necks, and presented a petition giving 100 reasons why they should not surrender the keys. The first reason was that they had lost the keys--whereupon the king very graciously dispensed with the other 99. If my noble and learned friend would even give one good reason for rejecting this amendment, I would willingly withdraw any requirement of anything further to be said. However, having undertaken not to press my amendments to a Division, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 2, as amended, shall stand part of the Bill?
Viscount Colville of Culross: Have I time to ask the noble and learned Lord the Lord Chancellor a brief question at this stage?
The Deputy Chairman of Committees (Lord Lyell): Had I beaten the noble Viscount to the punch on the previous amendment? I thought that the noble and learned Lord had withdrawn it. The Question is that Clause 2, as amended, shall stand part of the Bill. Of course there is time for the noble Viscount's question.
Viscount Colville of Culross: I simply did not want to run over the allotted time for this part of the discussion on the Bill, which I do not think I shall.
The debate on Clause 2 has been at a very high level of jurisprudence. Nevertheless, as I understand it, the Bill is expected to have quite considerable effects on the criminal law. I wish to ask the noble and learned Lord the Lord Chancellor two questions about the practicalities of this provision. If I am talking about matters that are banal and humble, I apologise. But that, unfortunately, is where the criminal law starts.
To take an example, there is on the statute book an Act entitled the Criminal Procedure and Investigations Act, which was passed last year. It lays down timetables and procedures for preparing trials in the Crown Court. There is also a provision in Clause 3 which states that the courts shall interpret that legislation and subordinate legislation made under it--and there is some laying down of timetables--in such a way as to be compatible with convention rights. Included in Article 6 of the convention are the due process rights. I note particularly that a defendant is to have adequate time and facilities for the preparation of his defence and to obtain the attendance and examination of witnesses on his behalf.
The first problem is that that sort of point--that is to say, the timetable of the trial, the preparation of the defence, the ability of defence witnesses to come--is raised at the very early stage of a trial, and at a comparatively humble level of the judiciary, exemplified by myself. I do not think that I am the only circuit judge who is not at all familiar with what the European Court has said about due process. I happen to
know a good deal more about what has been said under the international convention, but certainly not under the European convention.We shall need to know what sort of latitude is available in the exercise of a judicial discretion when we are looking at what is adequate time and facilities for the preparation of the defence, and what it is reasonable to allow by way of holding up the case for a very long time in order that a particular defence witness can be called. I am sure that the European Court has been entirely reasonable in its interpretation of these provisions; however, I do not think that on the whole the judges will know. Nor do I believe that the magistrates will know, if such a case comes before them.
I simply ask the noble and learned Lord this: are we to have training in relation to the application of the Bill in the comparatively humble courts? The Government must have worked out which parts of the convention are likely to be appropriate for the type of matter about which I have spoken and the level to which I referred. It would not be a major imposition to ask the Judicial Studies Board to give us information about the likely impact of the Bill on our day-to-day work.
Another point is that there is certainly not in my library, nor on offer from the south-eastern circuit library service, copies of the European human rights reports. That is where, under Clause 2(1)(a) we are to find out what was the judgment, decision or declaration of the European Court of Human Rights. Without ready access to those when the point turns up at the interlocutory stages which I have mentioned, I do not think that we shall make much progress.
It is not an idle matter because if the courts get it wrong at that stage, the trial will go ahead and the Court of Appeal will pronounce. I do not think there would be any universal guidelines arising out of one particular case. The danger is that the case will have to be sent back for re-trial and we shall spend a great deal of time and money on it. These practicalities, though probably intensely boring to the Committee, will nevertheless be one of the cases where the Bill strikes. I should like some assurance from the noble and learned Lord on the point.
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