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The Lord Chancellor: My Lords, Amendment No. 9 is grouped with Amendments Nos. 10 and 11. I shall speak to all three. I am grateful to the noble and learned Lord, Lord Simon of Glaisdale, for again raising the doctrine of implied repeal, but I fear that I must disappoint him by maintaining my opposition to his amendments. That is not because of any unwillingness to contemplate amendments or the possibility of their correctness, but because the amendments go to a central building block in the scheme of the Bill.

The Bill sets out a scheme for giving effect to the convention rights which maximises the protection to individuals while retaining the fundamental principle of parliamentary sovereignty. Clause 3 is the central part of this scheme. Clause 3(1) requires legislation to be read and given effect to so far as it is possible to do so in a way that is compatible with the convention rights. Clause 3(2) provides that where it is not possible to give a compatible construction to primary legislation or to subordinate legislation whose incompatibility flows from the terms of the parent Act, that does not affect its validity, continuing operation or enforcement. This ensures that the courts are not empowered to strike down Acts of Parliament which they find to be incompatible with the convention rights. Instead, Clause 4 of the Bill, together with Clauses 10 to 12, introduces a new mechanism through which the courts can signal to the Government that a provision of legislation is, in their view, incompatible. It is then for government and Parliament to consider what action should be taken. I believe that this will prove to be an effective procedure and it is also one which accords with our traditions of parliamentary sovereignty. That is why the Bill adopts it.

I agree with the observations of the noble and learned Lord, Lord Donaldson of Lymington. The position under the Bill is that, where pre-existing legislation cannot be construed by the courts compatibly with the convention, the intention of the Government is that the courts may make a declaration of incompatibility and then Parliament may make a remedial order.

Adopting and not taking up the time of your Lordships repeating the observations of the noble and learned Lord, Lord Donaldson of Lymington, I would add that it is not the intention of the Bill to repeal any pre-existing legislation that is incompatible with the convention. The noble Lord, Lord Lester of Herne Hill, was kind enough to refer to my recent Tom Sargant Memorial Lecture. I shall not add to whatever authority these extra-judicial observations may have--I doubt much--by repeating in the House anything that I said then.

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I invite the noble and learned Lord to withdraw his amendment on the basis that it is contrary to the principles on which we have constructed the Bill.

Lord Simon of Glaisdale: My Lords, my noble and learned friend the Lord Chancellor has repeated in slightly different terms the case he made in Committee. He said then that the amendment was contrary to the scheme of the Bill. What he meant was, "contrary to my scheme for the Bill". He put it today in the way of building blocks--we are interfering with his building blocks. The amendment is entirely compatible with the general building blocks of the Bill. It is confined to the cases where a declaration of incompatibility is made in relation to antecedent legislation. That is the whole scope--the only scope. That declaration of incompatibility will have been made in spite of the attempts to reconcile the convention with the pre-existing legislation.

My noble and learned friend insists that rather than rely on an existing rule of law we have to go through, both for pre-existing legislation as well as subsequent legislation, the paraphernalia of the fast track, the remedial order and so on. That has two disadvantages; first, delay in a remedy and, secondly, Henry VIII provisions which are unacceptable constitutionally unless we are absolutely forced to follow them.

However, my noble and learned friend will not have any alterations to his Bill except on the Government's initiative. We raised no objection when my noble and learned friend appeared to be trying on a cardinal's hat. It is only when he goes on to claim the triple tiara of infallibility that we beg to demur. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 10 to 12 not moved.]

Clause 4 [Declaration of incompatibility]:

The Parliamentary Under-Secretary of State, Home Office (Lord Williams of Mostyn) moved Amendment No. 13:

Page 2, line 36, leave out ("one or more of the Convention rights") and insert ("a Convention right").

The noble Lord said: My Lords, in moving Amendment No. 13 I should like to speak to the other government amendments grouped with it: Amendments Nos. 14, 15 and 16, 22, 39, 44 and 45, and to Amendment No. 21 in the name of the noble and learned Lord, Lord Simon of Glaisdale.

These government amendments to Clauses 4, 6 and 10 are a response to the amendment to Clause 6 which the noble and learned Lord tabled for Committee and which he has tabled again for Report. I have to say that his amendment caused a considerable amount of thought within the Government and has met with the open-minded response that is so frequently remarked on by the noble and learned Lord.

At the Committee Stage the noble and learned Lord wanted to replace the words "one or more of the Convention rights" with the different formulation "the

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Convention rights". He described that as a drafting improvement but the amendment was designed also to have a substantive effect. He was concerned about what might happen if a public authority were required to comply with one or more of the convention rights. He gave, for instance, the example of a BBC broadcast which was considered to intrude upon someone's privacy, contrary to Article 8, but which might be justified under Article 10 protecting freedom of expression. He thought that the Bill, as drafted, might induce the courts to look only at the Article 8 invasion of privacy and not Article 10.

Lord Simon of Glaisdale: My Lords, I am grateful to the noble Lord for giving way. It was not a case of the court being forced to look at only one article but that an offence would be committed by the public authority if only one was considered without consideration of a counterbalance. That would be if only one convention right were infringed.

6.30 p.m.

Lord Williams of Mostyn: My Lords, I understand that. I was about to say that we entirely agree that a court should be able to take account of convention rights that pull in different directions. The noble and learned Lord the Lord Chancellor and I have said that. It has been readily accepted by noble Lords who have attended that that is the whole purpose of the Bill. But our analysis of the position differs from that of the noble and learned Lord.

Perhaps I may take his example. A claimant will allege that a particular convention right of his or hers has been infringed. The respondent will claim that it has not. I entirely agree, therefore, that the question is this. In what circumstances will the court have to balance his right against the convention right of some other person? The answer comes from the convention itself and the European Court of Human Rights.

As regards the Article 8 example, the claimant will allege infringement of his rights to respect for private and family life, home and correspondence, in Article 8(1). The authority may well reply that the act in question was necessary to pursue one of the aims permitted by Article 8(2), which, of course, include the rights and freedoms of others, including other convention rights. The claim will be that there has been a breach of Article 8(1). The court, in considering that claim, will be able to look beyond Article 8 itself; for example, to Article 10. But the finding will not be that there has been a breach of Article 8 justified by Article 10. The finding in these circumstances will either be that there has been a breach of Article 8 or that there has been no breach of that article.

Even where a claimant relies on an article of the convention which has no built-in reference to other rights, as Article 8 undoubtedly does, there is the overriding effect of Article 17. Clause 1(1) of the Bill

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refers to it. I do not believe that it has been mentioned frequently in your Lordships' House, but Article 17 states:

    "Nothing in this Convention may be interpreted as implying for any state, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or"--

then these important words--

    "at their limitation to a greater extent than is provided for in the Convention".

That is a classic description of the balancing act which the Government believe is the appropriate task for the courts to perform. Therefore, we suggest that the balancing which I have described quite briefly is much more sophisticated and subtle and is designed specifically to be that, rather than the simple case of two litigants, each asserting conflicting convention rights.

The balancing is to be carried out in the context of the particular article on which the claimant bases his claim. So in the Article 8 example, the court will be adjudicating on the question whether that article has been infringed. Plainly, there will be different balancing to be done by the courts in different claims.

We believe, on sound historic experience, that the courts in this jurisdiction are peculiarly well equipped to carry out these balancing exercises as the whole development of the common law tradition in this country has been substantially based on the sort of subtle balancing that the courts will be required to carry out. That leads to the question as to the best formulation. Should the Bill refer to "one or more of the Convention rights," or "the Convention rights" or "a Convention right?" We have genuinely and conscientiously given this a good deal of thought and we believe that the phrase "a Convention right" is the proper one to use. It is shorter than "one or more of the Convention rights" and is preferable in drafting terms and a more natural formulation.

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