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Lord Renton: My Lords, the noble and learned Lord, Lord Simon of Glaisdale, has put forward a case which deserves serious consideration. The word "further" is somewhat vague anyway. Further to what? We are in effect giving our domestic courts the jurisdiction relating to the rights and freedoms guaranteed under the European Convention on Human Rights. It seems to me to be a more accurate way of describing the contents of the Bill and a more precise way to use the word "domestic" than to use the word "further".
I hope that I am in order in saying that I am glad that the noble and learned Lord also raised the question of what happened to Amendment No. 1 moved by the noble Lord, Lord Mishcon, which, as he said, received a great deal of support right across the House. I was one of those who keenly supported it. I am not in a position to say whether it was actually negatived or negatived by mistake. However, when I saw in Hansard that it had been negatived, I was extremely surprised.
9.30 p.m.
Lord Lester of Herne Hill: My Lords, I realise that when it comes to questions of statutory interpretation of Long Titles, purpose clauses and statements of principle, speaking after the noble and learned Lord, Lord Simon of Glaisdale, and the noble Lord, Lord Renton, I am a young boy among wise men. Therefore I shall say extremely little on the subject. However, I should like to say something.
First, Sir Geoffrey Palmer, a former Prime Minister of New Zealand, when explaining the New Zealand Bill of Rights Act, said something rather wise. He said, "Bills are made to pass". I use that phrase when I hear critics of this Bill saying that it has diluted the milk of pure principle in some way.
I am sure that the Government chose the words of the Bill carefully to enable the Bill to pass. That may explain some curious and ingenious formulae that have been used in the Bill. I suspect that the Long Title is defined as
- "An Act to give further effect to rights and freedoms",
- "to give domestic effect to rights and freedoms",
I cannot read the substance of the Bill in any other way. The only matter which gives me cause for concern and made me decide to put my name down in support of the amendment is that earlier in the debate the noble and learned Lord the Lord Chancellor said something which I found extremely curious. He said something along the lines, "This Bill will not incorporate convention rights into the substance of domestic law". That seemed to me to be an almost mystical concept which I could not understand. It seems to me that if the Bill does anything clearly, it incorporates convention rights into the substance of our domestic law and it does so in a number of ways.
One way is by commanding judges to read statutes, where possible, to comply with convention law. That is where it embodies convention rights into our statute law. Another way is that it requires judges to be a public authority bound by the convention and therefore interpreting and applying the common law and statute law to give effect to convention rights. Therefore in those ways it surely does incorporate convention rights into the substance of our domestic law. If we can agree about that, it will go a long way towards assuring me that, whatever the reasons for those curious words in the Long Title, at least it is quite plain that the central object and purpose of this Bill is to give domestic effect to convention rights and freedoms. If that is clear it may well be that this amendment is otiose.
If there were any ambiguity about it then I believe that the noble and learned Lord, Lord Simon of Glaisdale, has the better of the argument. There is a powerful case. I wish that the matter had been dealt with by a purpose clause and at an earlier stage. This is the last amendment that we shall consider today. Before we say farewell to this Bill it is important that this matter is put beyond any doubt. I therefore support the amendment.
The Lord Chancellor: My Lords, the noble and learned Lord, in moving this amendment, which is the
last that we have to consider at Report stage, took the opportunity to remark that the House was not as fully attended as it might be at this hour. In the dying moments of Report stage on this Bill, I shall give the noble and learned Lord an additional opportunity to have the last word by rebuking me yet again on my unyielding disposition in relation to this jewel of a Bill.I do not believe that there is much that I can add to what I said when Amendment No. 75 was debated at Committee stage. The word "further" is included in the Long Title because, in our national arrangements, the convention can, and is, already applied in a variety of different circumstances and is relied on in a range of ways by our own courts.
The Bill will greatly increase the ability of our courts to enforce convention rights, but it is not introducing a wholly new concept. As I have said before, the Bill as such does not incorporate convention rights into domestic law but, in accordance with the language of the Long Title, it gives further effect in the United Kingdom to convention rights by requiring the courts in Clause 3(1),
- "So far as it is possible to do so"
Lord Renton: My Lords, I am very reluctant to interrupt the noble and learned Lord. I believe that he said just now that it was an Act to give further effect in the United Kingdom,
- "to rights and freedoms guaranteed under the European Convention on Human Rights".
The Lord Chancellor: My Lords, when I used the words "in the United Kingdom" I was not reading from the words of the Long Title. The words in the Bill are,
- "An Act to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights".
I have to make this point absolutely plain. The European Convention on Human Rights under this Bill is not made part of our law. The Bill gives the European Convention on Human Rights a special relationship which will mean that the courts will give effect to the interpretative provisions to which I have already referred, but it does not make the convention directly justiciable as it would be if it were expressly made part of our law. I want there to be no ambiguity about that.
Lord Lester of Herne Hill: My Lords, I am extremely grateful to the Lord Chancellor; but I wonder whether he would mind explaining the difference
between requiring our courts (as a public authority) to give effect to the convention; requiring our courts where possible to interpret Acts of Parliament to comply with the convention; requiring our courts in developing the common law to have regard to the convention rights, and requiring our courts to give effective remedies where there is a breach of those rights. What is the difference between all of that and incorporating the convention? What else would be needed over and above all that in order to incorporate the convention?
The Lord Chancellor: My Lords, this is fast becoming something of a theological dispute and I should like to bring it to a conclusion as quickly as I may. The short point is that if the convention rights were incorporated into our law, they would be directly justiciable and would be enforced by our courts. That is not the scheme of this Bill. If the courts find it impossible to construe primary legislation in a way which is compatible with the convention rights, the primary legislation remains in full force and effect. All that the courts may do is to make a declaration of incompatibility.
I have a feeling that in these dying moments of Report stage we are behaving in a way in which judges sometimes behave at the end of a very long case. It is almost as if they cannot bring themselves to depart from the case and to be left to consider it themselves, and question after question continues. I have given the best argument that I may.
Lord Simon of Glaisdale: My Lords, I am quite satisfied that my noble and learned friend has given the best answer that can be given. We can therefore leave this to a later stage or to the other place.
I am most grateful for the cogent support that I have received on this amendment. The noble Lord, Lord Lester, was altogether too modest. His intervention was extremely powerful. I am particularly grateful to the noble Lord, Lord Renton, who is such an authority on statutory interpretation--not only in himself but because he comes trailing the clouds of glory of the Committee on Preparation of Legislation. The final word was said by him: further effect? What further effect? That is left entirely at large. There is no guidance to the courts at all.
My noble and learned friend said that this Bill is not intended to incorporate the convention into our domestic law. That is at variance with various points that have been made, but so be it for the moment. The amendment to the Long Title does not suggest that it should be. All that it seeks to do is to give "domestic" effect to the convention rights and that is incontrovertibly what it does. However, it is now nearly a quarter to ten, and I am 87 years of age, so I claim leave to withdraw the amendment.
Amendment, by leave, withdrawn.
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