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Lord Lester of Herne Hill: My Lords, as the noble Lord, Lord Williams of Mostyn, will recall, I wasted a good deal of Home Office time in the summer attempting to persuade the Government that they should expressly preserve the doctrine of implied repeal in the Bill. I did not succeed. Therefore, I naturally start with a great deal of sympathy for what was said by the noble and learned Lord, Lord Simon of Glaisdale, and I agree with a great deal of it. However, on reflection I wonder whether it is necessary and I should like to explain why.

First, perhaps I can brush to one side a bad argument in the White Paper in paragraph 2.14, where it is suggested that what is wrong with the doctrine of implied repeal is that it involves the courts striking down legislation in some way in conflict with the doctrine of parliamentary sovereignty. As the noble and learned Lord explained, that is not what the doctrine of implied repeal does; it is intended to give effect to the intention of the legislature by regarding what is said in the later statute as reflecting its true intention and reading the earlier statute to conform, if necessary, as impliedly repealing the earlier provision.

The reason why I doubt whether one needs to introduce an amendment of this kind is that it seems to me that the command in the Bill--where possible to construe existing and future legislation to conform with convention rights--is so strong that it leaves entirely open the possibility that the courts will, in effect, use the doctrine of implied repeal or something like it in order to achieve the correct result, which is no mismatch between our statute book and the convention.

I was encouraged in that view, in particular, by a remarkable lecture recently given by the noble and learned Lord the Lord Chancellor, the Tom Sargant Memorial Lecture, under the auspices of Justice. With your permission I would like to refer to one or two of the matters in that lecture which seem to me to show exactly the approach that the courts will be adopting.

The Lord Chancellor pointed out that the Act, when it comes into force, will require new judicial techniques of interpretation. He said:

The Lord Chancellor continued:

    "Moreover, it should be clear from the parliamentary history, and in particular the ministerial statement of compatibility which will be required by the Act, that Parliament did not intend to cut across a

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    convention right. Ministerial statements of compatibility will inevitably be a strong spur to the courts to find means of construing statutes compatibly with the convention".

I break off to observe that that, of course, is dealing with post Human Rights Act legislation not pre-Act. Then the Lord Chancellor said this:

    "Whilst this particular approach is innovative, there are some precedents which will assist the courts. In cases involving European Community law, decisions of our courts already show that interpretative techniques may be used to make the domestic legislation comply with the community law, even where this requires straining the meaning of words or reading in words which are not there".

He gave as an example the well known Litster case decided in 1990. He also referred to the jurisprudence in New Zealand. He then said this:

    "The court will interpret as consistent with the convention not only those provisions which are ambiguous in the sense that the language used is capable of two different meanings but also those provisions where there is no ambiguity in that sense, unless a clear limitation is expressed. In the latter category of case it will be 'possible' (to use the statutory language) to read the legislation in a conforming sense because there will be no clear indication that a limitation on the protected rights was intended so as to make it 'impossible' to read it as conforming".

I apologise for reading all of that but it is very important because it shows, from the highest authority among the makers of the Bill in this House, that there will be a new approach to statutory interpretation. A declaration of incompatibility will be a systemic failure. I believe that that will very rarely happen, and that our courts will act in a similar way to the Judicial Committee of the Privy Council when construing ordinary legislation in the context of Commonwealth constitutional guarantees of human rights; that is, by reading in and reading down: reading in safeguards to save the statute in accordance with human rights; and reading down--reading narrowly restrictions upon human rights; adopting a generous approach, in the words of the noble and learned Lord, Lord Wilberforce, to give human rights their full scope and avoiding what the noble and learned Lord described as the austerity of tabulated legalism.

Against that background it seems to me that to go to the doctrine of implied repeal, which has often been criticised by academic commentators, for reasons that I do not need to go into, is now unnecessary. The new principles described by the Lord Chancellor--although of course it is not a matter for him in the end but for the courts themselves to decide how to interpret the provisions of this Bill--seem to me to take care of the problem which the noble and learned Lord has quite properly raised in his amendment.

May I finally say that I do not share his criticism of the Bill as being a massive extension of Henry VIII clauses but that is a matter to which we will no doubt return at a later stage.

6.15 p.m.

Lord Ackner: My Lords, I would like to support the amendment. It seems to me that the Government's preoccupation with preserving parliamentary sovereignty has caused them to over-complicate the situation. As has been made perfectly clear, we are concerned in this amendment with pre-existing

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legislation and not with future legislation. To preserve the sovereignty of Parliament, the slightly complex procedure of the declaration of incompatibility followed, one anticipates, with the reaction by Parliament to put the matter right, is quite unnecessary in relation to pre-existing legislation. The mistake made in the White Paper, to which the noble Lord has just drawn attention, is the clue to the unnecessary application of the declaration of incompatibility approach to pre-existing legislation.

It is perfectly clear that the doctrine of implied repeal is an existing part of English law. I cannot find anything in the Bill to prevent the courts, where appropriate, from using the doctrine of implied repeal. All this necessity to adopt an entirely new approach to interpretation in relation to pre-existing legislation is made quite unnecessary if one follows that doctrine. It involves no problem with regard to infringing parliamentary sovereignty. I think that the strain which is to be imposed upon the judiciary to go through the forensic gymnastics which have been referred to can be so easily relieved in regard to pre-existing legislation, and that is the merit of this amendment.

Lord Coleraine: My Lords, the noble Lord, Lord Lester of Herne Hill, has done the House a service by reading into the record so much of what the noble and learned Lord the Lord Chancellor said in the Tom Sargant Lecture because we have been led to believe that the purpose of the Bill was to avoid allowing the judiciary to strike down Acts of Parliament. But what the Tom Sargant Lecture makes clear is the intention that the striking down of legislation overtly is to be achieved covertly by the interpretation provisions of Clause 1 of the Bill. One should remember that the noble Lord, Lord Lester, said in Committee that the provisions of Clause 1 were perhaps the most important part of the Bill. I would agree with that, but I feel it is wrong to go covertly in a way which the Government are not prepared to go openly.

Lord Donaldson of Lymington: My Lords, it is very rare that I find myself disagreeing, even respectfully, with my noble and learned friend Lord Simon of Glaisdale, but I do not see that the doctrine of implied repeal solves any problems at all. I do not think it is even intended to solve this problem. As I understand it, it arises where you have two statutes: statute A which sets out certain rights, liabilities or procedures, and statute B, a later statute, which sets out certain rights, liabilities or procedures. You look at the two and find that there is an inconsistency between the earlier statute and the later one. The court, in accordance with this doctrine, says, "Parliament must have intended to repeal the first statute or some part of it, so we can forget about the implied repeal part". That does not work with this Bill because here we have, in theory, an earlier statute giving rise to rights, liabilities or procedures, and then we find an incompatibility. But we do not have an alternative set of rights, liabilities or procedures to judge one against the other to see whether there is an implied repeal. All we know is that the earlier statute is inconsistent. We have nothing else to substitute.

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I strongly suspect that in most cases there will be more than one way of remedying the incompatibility. You really would be involving the courts in a legislative function of no mean order if it were pointed out to them that there were, say, three ways of remedying the inconsistency and leaving it to them to choose which. I do not think the amendment works in the way in which its proposers intend it to work. Accordingly, I oppose it.

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