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Lord Simon of Glaisdale: My Lords, will the noble Lord allow me to intervene again? I am very grateful to him for his courtesy. It may be shorter than "one or more of the Convention rights", but it is no shorter than "the Convention rights", which is what the amendment proposes.
Lord Williams of Mostyn: My Lords, that is arithmetically and grammatically correct since the definite and the indefinite article in the English language are each one word and I understand that. We have thought quite carefully about the problems that have been identified, real or apparent, by the noble and learned Lord and we have simply come to the conclusion that "a Convention right" properly describes what we are looking for as regards the background to the courts' consideration. We fully understand that balance is what the courts will have to find. I reiterate our absolute confidence in the ability of the courts to carry out that balancing. We suggest that the formulation we have come to after a great deal of
thought, following the noble and learned Lord's interventions, is about right. I hope that he might think that on this occasion we may have done the right thing.
Lord Simon of Glaisdale: My Lords, the phrase "one or more of the Convention rights" occurs frequently in this Bill and in the government amendments. They have been grouped together to amend all of them. None of them needed amendment except as regards Clause 6. In the other amendment the phrase "one or more" was perfectly correct. It is perfectly correct in Clause 4 where the instant amendment is designed to correct the language.
I was concerned with Clause 6, which was the only one where the phrase was wrong. I do not believe that the Government are to be blamed harshly. Having found a phrase which worked elsewhere, they assumed that it would be right for Clause 6. It is not. Clause 6 says that a public authority acts illegally if its act is in contravention of one or more of the convention rights. The word that is objectionable is "one". It directs the attention to one convention right irrespective of the fact that there may be another convention right which out-balances it.
I am very glad that the noble Lord, Lord Williams of Mostyn, said several times and quite categorically that a balancing act was required. I gave as an example in Committee the BBC, which is unquestionably a public authority, being alleged to have infringed a person's right to privacy for himself or his family. The BBC might well say, "Even if we have, it is justified by the right to free expression." The balancing act will then take place, the court deciding where the public interest indicates either that Article 10 (free expression) or Article 8 (privacy) should be preponderant. But the Bill as drafted does not secure that because if Article 8 alone is infringed, an illegal act has been committed.
The noble Lord, Lord Williams, in an extremely ingenious--and perhaps I may say convoluted--argument tried to get round it. He pointed to Article 8(2) which states that the right to privacy shall not be to the detriment of any other person's rights. He said that any other person's rights included the right to freedom of expression under Article 10; in other words, that argument imports the immunity of Article 10 into the very heart of Article 8; it is incorporated in paragraph (2). It means that if an act of invasion of privacy is expressed, as it is likely to be, either in words or pictures, there is a complete answer. There is no right to privacy at all; it is automatically expunged by the importation of Article 10 into Article 8(2). That really will not do. Any judge who interpreted a measure designed to protect human rights in that way would have his wig taken off and his head examined. It is no way to construe such a piece of legislation as this.
Look what is done instead. The mischief aimed at is the contravention of one or more convention rights. What is substituted is "a Convention right". But "a" and "one" mean precisely the same thing in this context. One has only to think of this as a European code. In both French and German one word translates both "a" and "one".
The noble Lord floated the idea of "a Convention right" in Committee. I had no answer although I had been promised consideration, with the result that on 3rd December--about a fortnight after Committee stage--a well informed leader writer in The Times, who had obviously followed this Bill very closely, wrote the following words:
- "... Clause 6 ... makes it 'unlawful for a public authority to act in a way which is incompatible with one or more of the Convention rights'. This wording already gives cause for concern. The phrase 'one or more' could invite a court judgment based on only one of the rights laid down in the Convention ... We accept that this is not the intention of Lord Irvine, who insists that the courts will be required to give freedom of expression 'its due high value'. But the Government has yet to accept Lord Simon of Glaisdale's amendment removing this ambiguity. It should do so".
They have not done so. They substituted the word "a" for "one" which does not remove the ambiguity". In view of the fact that I had heard nothing from the Government and in view of that article, on the following day, the 4th December, I wrote pointing out why "a" was as objectionable as "one". I had no answer to that other than a very polite formal acknowledgment from the Secretary to my noble and learned friend the Lord Chancellor. Indeed, I had no answer at all until Wednesday, 14th January, some seven weeks after I had written, when a long letter from the noble Lord, Lord Williams, arrived setting out the case which he has made at the Dispatch Box. Unfortunately, that reached me only late on Wednesday, the letter being dated that day. I had commitments on Thursday and the weekend and was unable to ask to be allowed to put the point why the proposed government amendments were wrong.
To allow that long lapse of time without an answer and for an answer to arrive only one working day and one weekend before Report stage seems to me to be an extraordinary way to conduct business.
The odd feature is that not only do the Government amendments to Clause 6 where the Bill is wrong perpetuate the error--because "a" is the same as "one"--but it alters the expression "one or more of the Convention rights" in other places where it is absolutely the correct expression. Clause 4 deals with a court declaration of incompatibility with one or more convention rights, and that is absolutely right.
The declaration of incompatibility is not freestanding. It leads to a remedial order. The Minister drawing up a remedial order will not want to know whether "a" or "one" convention right has been infringed, but how many and which ones. So, "one or more" then is right, and "a" wrong. What are we to do then? It is difficult not to suggest that that painful inability of the Government to accept any amendments to their Bill, except by their own hand, is pathological--psychopathology politics.
If I have convinced, as I hope I have, the noble Lord, Lord Williams, that his amendment to Clause 6 is wrong, and that my amendment is right, and that his amendment to Clause 4 is wrong, I would ask him to withdraw his amendment and to allow mine to pass. If he feels, with all the pressure of the Government behind
him, that he cannot do that, he should withdraw all his amendments, and I will withdraw mine. That would give us an opportunity to discuss the matter thoroughly again before Third Reading. In conclusion, I must apologise for the state of my voice.
Lord Campbell of Alloway: My Lords, I have listened to the amendment. One owes a duty of frankness to the House. For the life of me, I cannot see what practical difference it makes if you have "one or more" convention rights, or, "a" convention right. I just do not understand what has been said. I say that with deference to the noble and learned Lord who is far more intelligent than I can ever become.
Viscount Colville of Culross: My Lords, I do not suppose that the noble Lord, Lord Williams, will welcome my support, but I would give it to him from, perhaps, a little experience of trying to implement this sort of legislation--at least a convention similar to the one with which the Bill is concerned. He is talking about an exercise in balancing which may have to be done between two different articles of the convention. The same thing applies when dealing with a communication under the international convention where there are conflicting articles similar to those which have been mentioned in the debate. The same exercise has to occur.
A court in this country attempting to apply Clause 4, as it currently is, or, indeed, as the noble Lord, Lord Williams, would have it amended, is bound to try to carry out a balancing exercise. Even if initially just one of the articles concerned is raised by one of the parties before the court, if there is a conflict with another of those articles, I have little doubt that the other party will raise that conflict. Even if it does not, any court that knows the convention which it is bound to apply will be aware that there is more than one article which is binding upon it, and it will be aware of a possible conflict, even of its own motion. Therefore, it will have to carry out the balancing exercise. It is a balancing exercise which both the European Court and the committee upon which I sit have for some time been demonstrating.
I remember doing so last summer in a case in relation to some French legislation where the two articles that we have currently at the forefront of our minds were being looked at in conjunction under the international convention. A balance had to be struck. That is what the courts in this country are being invited to do. If the noble Lord, Lord Williams, says that it will be easier to direct their minds down that path by doing it according to the wording that he now puts forward, then I will support him. I want to make it as easy as possible for the courts to do the balancing exercise; to know that they have to do the balancing exercise; and to follow the example of those tribunals elsewhere which have already been doing the balancing exercise for some time. I therefore give him my support for what it is worth.
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