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Lord Williams of Elvel: My Lords, I am grateful to my noble and learned friend the Lord Chancellor for what he said. No doubt he will be more forthcoming when the further amendments he mentioned are debated later on.

I wish to make only one point. If the noble Lord, Lord Lester of Herne Hill, is right--and I am sure that he is right--about the jurisprudence in the European Court of Human Rights, particularly the affairs of Salman Rushdie and others; if that jurisprudence is to be followed by the UK courts and if my noble and learned friend could declare that in some form or other, then many of my worries would be removed. No doubt my noble and learned friend will address that subject when we debate the amendments to which we shall come later this evening. In the meantime, I beg leave to withdraw the amendment.

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Amendment No. 2, as an amendment to Amendment No. 1, by leave withdrawn.

Lord Mishcon: My Lords, little did I think when I tabled Amendment No. 1 that 49 minutes of your Lordships' time would be devoted to it. I am duly flattered, but nevertheless feel that I can serve your Lordships best by saying that I shall read the learned speeches that have been made on canon law, ecclesiastical law, on women and on bishops with the utmost care before deciding what I should do. In the meantime, I beg leave to withdraw the amendment.

On Question, Amendment No. 1 negatived.

Lord Simon of Glaisdale moved Amendment No. 3:

Page 1, line 8, leave out ("12 and").

The noble and learned Lord said: My Lords, I am somewhat surprised to find myself moving this amendment. I believed that the noble Lord, Lord Lester of Herne Hill, was to move it and I shall leave to him the main explanation of it. He is the leading expert on jurisprudence in the European Court of Human Rights.

Amendment No. 3 concerns Article 13, which is left out of the schedule setting out the articles which apply. Indeed, that is reflected in Clause 1. Amendment No. 3 will make the reference to the articles run from 1, with no exception at the end of 12, straight on through to Article 18.

In addition, I need say only this. There is a consequential amendment to the schedule, and the noble and learned Lord, Lord Mackay of Drumadoon, attached his name to that amendment. Therefore, presumably he also supports Amendment No. 3 or Amendment No. 5 which says the same thing in a slightly different way.

There is an alternative. My noble and learned friend Lord Ackner tabled Amendment No. 33 which in effect reproduces the force of Article 13 and incorporates it into the body of the Bill. I shall have to leave him to say how he wants that treated. The course I prefer and which I am now following is the simpler one; namely, making Article 13 also part of the schedule to the Bill. The form is simpler in Amendment No. 3 than in Amendment No. 5. They have precisely the same effect, but on the ground of simplicity Amendment No. 3 may be preferred.

I wish to make one last point. I am leaving the main argument to the noble Lord, Lord Lester of Herne Hill, and he ordinarily has no right to speak again at the end of the debate. The Minister has the last word, subject to my being formally entitled to reply to the debate. I hope your Lordships will give the noble Lord, Lord Lester, leave to speak a second time in reply to the debate on the understanding that I shall not myself exercise the right to do so. I beg to move.

4 p.m.

Lord Lester of Herne Hill: My Lords, I am grateful to the noble and learned Lord, Lord Simon of Glaisdale, for what he has said. I would like to speak in support of Amendment No. 3, which stands in my name, and also to the other amendments that are grouped, Amendments Nos. 5, 33 and 70.

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Amendment No. 5 is not so neatly and simply expressed as the amendment of the noble Lord, Lord Simon of Glaisdale, and would certainly not need to be further considered were Amendment No. 3 to be accepted. Amendment No. 33 is not in my name, it is in the name of the noble and learned Lord, Lord Ackner. It seeks in a different way to achieve the same result. Amendment No. 70 is consequential.

I can deal with the matter briefly because it was debated fairly fully in Committee. It is clear from its place in the convention that Article 13 is one of the rights guaranteed by the states parties to the convention. It is also clear that a breach of Article 13 can be the subject of a complaint on the international plane under Article 25 of the convention.

To take the most recent example, in the Chahal case the United Kingdom was found to have breached Article 13 separately in a judgment of the European Court of 15th November 1996. That made it necessary for Parliament to enact special immigration appeals legislation. The European Court observed in Chahal that Article 13:

    "guarantees the availability at national level of a remedy to enforce the substance of the convention rights and freedoms in whatever form they happen to be secured in the domestic legal order. The effect of this article is thus to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant convention complaint and to grant appropriate relief".

So the European Court has made it quite clear that Article 13 imposes binding obligations on the United Kingdom to provide effective national remedies for arguable breaches of the convention. That is why it is very important that our courts do not consider cases under this Bill in blinkers and why they are permitted to look at all relevant provisions of the cnvention, including Article 13. They already do so even though the convention has not been domesticated.

I give two examples. In the Esther Rantzen case and the Elton John case, in considering how it should exercise its discretion to interfere with excessive damages awards in libel cases under Section 8 of the Courts and Legal Services Act, the English Court of Appeal indicated that it had regard to Article 13 and the obligation on it to ensure effective remedies in relation to the free speech guaranteed in Article 10.

To take another example, in a case called ex parte Khan last year two Law Lords of the Appellate Committee again expressly referred to their obligations as a court under Article 13. It is therefore a curious gap, and in my view one of the only three imperfections in this otherwise brilliant Bill, that when one comes to look at the very first part of the Bill, one finds reference made to Articles 2 to 12 as provisions at which the courts can look, and then it leaps from 12 to 14 leaving out Article 13.

Two different explanations for this omission have been given by Ministers so far in the course of debates. One given by the noble Lord, Lord Williams of Mostyn, was that it is not necessary because the Bill is giving effect to Article 13 by providing effective domestic remedies. The other answer, given by the noble and learned Lord the Lord Chancellor, was to indicate some

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anxiety in government circles that if Article 13 were to be incorporated into our law this might lead our courts to be excessively creative in fashioning new remedies in proceedings under the Bill. But Amendment No. 3 is not directly incorporating Article 13. What it does is to permit our courts to have regard to Article 13. I have no objection to incorporating Article 13. I do not believe our courts would stray as a result, but I think it is objectionable to exclude Article 13 altogether from the matters to be taken into account by the court. It would be quite wrong for there to be a gap between what is enacted by this Bill and our international obligations under the convention, and by excluding Article 13 altogether one would be only partially incorporating the convention and not giving full effect to all its provisions.

I apologise for taking so long to try to explain the matter as I see it but it is quite an important matter and there are some outside this House who harbour all kinds of unworthy suspicions about machiavellian reasons for excluding Article 13. I do not share any of those doubts but I believe it is important that Article 13 should be one of the provisions in Section 2 of the convention to which the courts can have regard.

Lord Renton: My Lords, this group of amendments and other amendments which will follow to my mind raise a very important question of principle. We are purporting to incorporate the European Convention on Human Rights into the jurisdiction of our own courts. In doing so we should not pick and choose as to which articles of the convention we think should apply and which should not. But in relation to Article 13, set out in Amendment No. 70, we have to bear in mind that it does not state rights; it states an obligation upon persons acting in an official capacity. It has that limitation.

It so happens that Clause 6 of the Bill deals with that very matter. So to my mind, rightly or wrongly, the Government were justified in avoiding repetition by omitting the reference to Article 13. If we turn to Clause 6, under the heading Public authorities, we see in subsection (1):

    "It is unlawful for a public authority to act in a way which is incompatible with one or more of the convention rights".

Although the wording is slightly different in Article 13, that conveys the same message and therefore, although I am strongly opposed to our varying the terms of the Convention on Human Rights, I think that on this particular matter, to avoid repetition or conflict, the Government would be justified in inserting Clause 6 and omitting Article 13.

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