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Baroness Williams of Crosby: My Lords, I apologise to the noble Baroness for interrupting and I shall not do so again. If it is true that all the rights and liberties of individuals are adequately protected under the present British arrangements, why have so many cases which have gone to Strasbourg been decided against the views of the British courts?

Baroness Blatch: My Lords, I shall deal with cases that go to Strasbourg in a moment. What is afforded is that all the national laws of the country, together with the rights backed by the European Convention, exist and are available to all our citizens. What we are talking about and what the debate has been about —and it is interesting to me, after listening to all the contributions—is not whether the citizens enjoy the protection, it is about the mechanisms, the efficiency and effectiveness of using the system. I shall say to the House that I think that in terms of the mechanisms and with all the protections of the ECHR, the arrangements that we have in place and the protection of our national law, the citizens of this country are not in any way disadvantaged. The noble and learned Lord, Lord Donaldson, made the points rather more eloquently and convincingly that I have been trying to make.

It is entirely consistent with this position that the Government attach great importance to the convention and take most seriously the United Kingdom's obligations under it. As we have been reminded earlier in this debate, the United Kingdom played a leading role in drafting the convention. Created very much with the horrors of the defeated war time regimes in mind, it was intended to give binding effect to the guarantee of various rights in the United Nations Declaration of Human Rights which had been adopted in December 1948. We were among the first states to ratify the convention, as long ago as 1951; and, again, we were among the first major countries to subscribe, nearly 30 years ago, to the right of individual petition to the European Commission of Human Rights, and to accept the compulsory jurisdiction of the European Court of Human Rights.

Our present arrangements already provide for our commitments under the convention to be taken into proper account in our governmental, legislative and judicial systems. Our obligations under the convention

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are systematically and carefully taken into account by Ministers and officials in the formulation and application of government policy, and in the preparation of draft legislation.

As regards the courts, judgments of this House have made it clear that the United Kingdom's international human rights obligations are part of the legal context in which the judges consider themselves to operate. For example, the judgment in the case of Salomon v. the Commissioners of Customs and Excise, stated—if I may be permitted to quote from it:

    "There is a prima facie presumption that Parliament does not intend to act in breach of international law, including therein specific treaty obligations; and if one of the meanings which can reasonably be ascribed to the legislation is consonant with the treaty obligations and another or others are not, the meaning which is consonant is to be preferred."

Another test of the seriousness and importance which the Government attach to the convention is our record in remedying breaches of the convention where these occur. If I may, I shall address the contention that incorporation might further minimise such breaches more fully later in my remarks. Perhaps it may suffice for the moment for me to say that, in our view, non-incorporation is not the reason why the United Kingdom is from time to time found to be in breach of the convention. Instead, the answer to that lies partly in the broad and general provisions of the convention itself—which are inevitably subject to different and changing interpretations—and partly in the inevitability of flaws in any human contrivance. I could not have explained that more eloquently than the noble and learned Lord, Lord Donaldson.

If and where the United Kingdom is found to be in breach of the convention by the European Court of Human Rights and the Committee of Ministers of the Council of Europe, effective arrangements are in place for remedying the matter. Any necessary changes in the law or administrative practice are made as soon as possible. The United Kingdom's record in this respect is second to none: of the 89 cases that are currently on the books of the Council of Ministers as awaiting substantive resolution under Article 54, only three arise from the United Kingdom, of which two relate to judgments given as recently as October 1994.

I come now to the second element in the Government's position; that is, our assessment of arguments made for incorporation. We have to ask in what respects, if any, incorporation would enhance the enjoyment in the United Kingdom of the rights and freedoms provided for in the convention. Any answer to this must entail a degree of speculation. But one objective test is to compare the United Kingdom's performance with that of other states party to the convention which have incorporated it into their domestic law. Information is available on which to compare both the extent to which, in the first place, states are found in breach of the convention; and the extent to which, in the second place, when such breaches are found, the necessary remedial action is taken by the countries concerned. By both these measures, the United Kingdom's record is good, and better than that of many countries which have incorporated the convention into their domestic law.

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I noted that the noble and learned Lord, Lord Taylor, rather chided me on the possibility that I might introduce comparative figures. But I do not believe that we can dismiss this matter lightly. This debate has centred very much on speed, effectiveness, efficiency and justice for those at the receiving end. Such comparisons are very important.

We repeatedly hear claims (and we have heard them again in this debate) that the United Kingdom has a poor record before the convention institutions. In fact, such claims are ill-founded. In considering the figures for findings of violation, account should be taken both of the relative population size of states which are party to the convention and the date of acceptance of the right of individual petition. In the case of the United Kingdom, that was many years earlier than numerous other countries, including France, Italy, Portugal and Switzerland. Taking these factors into account, the United Kingdom is well down the so-called "league table" for breaches of the convention. We are 15th overall, below many countries which have incorporated the convention into their domestic law, including Switzerland, Italy, Austria, Belgium, the Netherlands, Portugal, France and Finland.

Comparative information on practice in taking action to remedy breaches of the convention tells a similar story. I noted earlier that the United Kingdom has an excellent record in this regard. Information provided by the European Commission of Human Rights shows that the majority of cases in which remedial action is outstanding arise from Italy, France, Belgium, Greece and the Netherlands. What all these countries have in common is that they have incorporated the convention.

Comparative information also casts doubt on the contention that non-incorporation places citizens at a real disadvantage in seeking to remedy possible breaches of the convention. It is far from certain that being able to litigate the convention in our courts would lead to a reduction in the number of cases, or to more rapid disposal and resolution of cases overall.

Although alleged violations of the convention may be considered in the domestic courts of countries where it forms a part of the law, what happens is that a large number of those cases still find their way to the European Commission and Court of Human Rights, where they must be examined afresh. For example, in 1994 62 allegations of violation were referred to the Austrian Government; 723 allegations to the Turkish Government; 118 allegations to the French Government, and 356 allegations to the Italian Government. Those are all countries which have already incorporated the ECHR. During the same period 46 such allegations—only 46—were referred to the United Kingdom. That would suggest that incorporation is hardly a way of reducing or speeding up the handling of cases.

Finally, as regards perceived merits, the delay in securing a decision or judgment under the convention, to which advocates of incorporation also sometimes refer, affects all applicants, irrespective of whether the countries concerned have or have not incorporated the convention. These delays are a matter of concern and one on which we, with other states party to the convention, have acted. Over recent years the United

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Kingdom has consistently played a leading role in the discussions in the Council of Europe which have resulted in various reforms of the ECHR procedures aimed at the speedier conduct of business. That work culminated most recently in Protocol 11 to the convention which provides, among other things for the present, part-time Commission and Court to be replaced by a single permanent court. The United Kingdom signed Protocol 11 as soon as it was available for signature. That was last May. We ratified the protocol last month, making us the fourth of the 33 states party to the convention to do so.

I come now to the disadvantages of incorporation which, as I indicated, the Government find serious and conclusive. As I have already said—and I make no apology for repeating—incorporation would strike at the long-held principle of parliamentary sovereignty which lies at the heart of our system of parliamentary democracy. The areas of public policy covered by the general principles set out in the convention have traditionally, and rightly, been the province of Parliament rather than the courts. Under our constitutional arrangements, it is for Parliament to enact detailed legislation on matters affecting the rights and liberties of the individual and to decide where the often difficult balance between competing public and individual interests is to be struck. In doing so, of course, it must have regard to the United Kingdom's obligations under the convention, as indeed it must in respect of all the United Kingdom's international obligations. Nevertheless, the final decision on such matters remains with Parliament. In our view they should continue to remain with Parliament.

That is a vital merit of our present arrangements. They provide that, if and when change is needed, often in areas of keen social and public interest, it is our democratically elected and accountable Parliament which decides how and when any such changes should be made. Among other things, that helps to ensure that change carries public support and understanding.

By contrast, to incorporate the convention into domestic law would transfer that final responsibility to the judiciary. United Kingdom judges would have to decide whether provisions approved in detail by Parliament, and clear in their meaning, offended against the general principles of the convention and, if so, whether effectively the courts should strike down that legislation. The question here is whether it is desirable or appropriate for these matters to rest with judges who are not directly accountable to the people rather than with democratically elected Members of Parliament. The Government's view is that the judges are not the right and appropriate people to be left with that power.

The Government also consider that incorporation would entail serious practical problems. In particular, incorporation would, in our view, have an adverse impact on the work of our courts. We could reasonably expect that, in innumerable challenges to action by public authorities, the convention would be invoked. Each complaint reaching the courts would have to be tried by reference to the principles of the convention but without the benefit of the initial screening process

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carried out by the Commission which currently sifts out as unfounded a very large number of cases—in excess of 80 per cent.

Further, if incorporation took the form the noble Lord's Bill proposes, the potential for allegations of "breach of statutory duty"—a key provision in the Bill—would be enormous: every time someone disagreed with, say, a decision by an immigration officer or social worker, proceedings for breach of statutory duty under the Bill could be instituted. These various factors could lead to a great deal of complicated and time-consuming litigation in the courts, with an inevitable effect on the conduct of other court business and without any real and corresponding improvement to human rights in practice.

The noble Lord, Lord Lester, in a very eloquent introduction to the Bill which I enjoyed, said that the courts can already strike down provisions of United Kingdom primary legislation if they conflict with European Community law. I accept that the European Court of Justice and our domestic courts can suspend the operation of UK primary legislation where it conflicts with European Community law. There is no disagreement with us there. Such cases have, however, been very rare indeed. The nature of the international obligations which the UK assumed on joining the European Community on the one hand, and by ratifying the European Convention on Human Rights on the other, are nevertheless different. Our obligations under European Community law tend to be narrow and well defined while those under the ECHR are broad and general in nature. In joining the European Community, the United Kingdom was obliged to accept that Community law could have the effect of suspending any national law with which it conflicted. We could not have joined without accepting that. In the case of the ECHR, however, we are under no such obligation.

The convention recognises that contracting states have a choice as to whether or not to incorporate the convention in domestic law and as to how best to implement the Court decisions. If the European Court of Human Rights decides that our law does not satisfy the requirements of the convention in a particular case, it is for Parliament to decide how our domestic law should be amended. Until it is amended, it remains in force.

I submit that it is a far more satisfactory state of affairs than that proposed under Clause 1(3) of the Bill, which would give every judge and every magistrate in the country power to decide not to enforce the law of the land if he or she, by their own judgment, formed the view that any person would thereby be deprived of any of the rights and freedoms set out in the convention. That really would represent a shift of power from the sovereignty of Parliament to the judiciary.

The noble and learned Lord, Lord Taylor, mentioned that the extension of judicial review had weakened the case against incorporation. With great respect to the noble and learned Lord, that disregards the fundamental difference between judicial review and incorporation. In considering applications for judicial review, for example, the court is not concerned with the merits of a particular decision or a particular policy. It is concerned

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only to ensure that the appropriate procedures were followed in reaching that decision and that the decision was within the powers given by Parliament to the public body concerned. Incorporation, as proposed in the Bill, would require the courts to address the merits of decisions made by Parliament on matters of public policy and set down in detailed legislation. It would require the courts to adopt a much wider role very different from their current function in cases of judicial review.

The noble Baroness, Lady Williams of Crosby, talked as though the citizens of the United Kingdom would not enjoy the protection of the ECHR unless the Bill was accepted for incorporating the ECHR into United Kingdom law. I have to remind the House that it was the United Kingdom which helped to draft the European Convention on Human Rights legislation. We were one of the first countries to sign the convention. We have a very good record, as I have set out, working within it. Whether we have incorporation or not, there is no disadvantage to United Kingdom citizens—either given the mechanisms that are in place at the moment in terms of delay or in terms of effective decisions at the end of the day. Full protection is afforded to all citizens.

The noble Baroness, Lady Williams of Crosby, implored us not to stand in the way of the international conventions but to encourage and support them. We have not stood in the path of ECHR legislation. As I say, we drafted it and we have supported it. We are bound by it and, as I have said, we have a good record of operating within it. Therefore, no citizen of this land is disadvantaged by that.

It has been my aim to indicate why we consider that incorporation is not necessary to secure the rights and freedoms protected under the European Convention on Human Rights in our country. Claims that incorporation would enhance enjoyment of those rights and freedoms are arguable and are certainly not supported by the comparative performance of countries which have incorporated the convention. There are substantial objections to incorporation both of principle and practice. The fact is that whether or not the convention has been incorporated into the domestic law of a country bears no relationship to how well that country affords legal protection for its people.

The drawbacks of incorporation are not minor matters but involve major changes to existing constitutional arrangements which have developed in this country over many hundreds of years. The Government remain unconvinced that the Bill would mark an advance in the protection of human rights in the United Kingdom sufficient to justify such a major departure from our current constitutional arrangements. Over a very long time the United Kingdom has developed a careful network of arrangements to ensure good government and fairness, including parliamentary sovereignty and full participation of both our Houses, ministerial accountability and judicial review.

To elevate the convention to the status of the primary source of good government and fairness would run the risk of upsetting the balance of arrangements for doubtful advantage, if any. This is a Private Member's Bill and the Government, therefore, would not propose

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to vote against it. However, the Government consider that incorporation is undesirable and unnecessary both in principle and in practice and for those reasons would not be able to support this Bill.

10.22 p.m.

Lord Lester of Herne Hill: My Lords, on the last occasion when a Bill of this kind was introduced into your Lordships' House, in winding up the Second Reading debate Lord Broxbourne began:

    "My Lords, that, naturally was a disappointing wind-up by my noble friend the Minister".—[Official Report, 10/12/85; col. 194.]

I hope that on this occasion the Minister will not mind my saying that this too has been a disappointing speech on behalf of the Government—for this reason. It would be perfectly open to the Government to approach the Bill in a constructive way, seeking, as many of the judges in your Lordships' House have done in the course of this remarkable debate, to focus on those aspects of the Bill which in the Government's view need to be improved but not opposing its central thrust. I very much hope that when this remarkable debate is read and considered by the Minister and her colleagues they might feel able to take a more positive view at a later stage if the Bill is given a Second Reading.

Perhaps I may say one or two things without wishing to detain your Lordships for long after what has been a remarkable debate. First, I have read all the previous debates on similar attempts to incorporate the convention. This occasion is quite different. In the first place, this is the first occasion on which the senior serving judiciary have with one voice, and a powerful dissenting voice from a very distinguished former Master of the Rolls, expressed the strong view that the time has come to give the people of this country really effective domestic remedies in our courts. That has never happened before.

Secondly, the noble Lord, Lord Williams of Mostyn, has spoken not just on his own behalf but on behalf of the main Opposition party, making clear their determination that a Bill of this kind should be enacted. That again is a complete break from all previous debates.

Thirdly, the noble Lord, Lord Cocks of Hartcliffe, raised a number of matters which I have not seen referred to in previous debates on this subject. In case I forget to deal with them all, perhaps I may reassure the noble Lord on three points. First, the Bill will not touch the rules of my former club, the Garrick Club. Its members can continue freely to exclude women without being affected by the Bill.

Secondly, I am not here holding a brief for Charter 88. The noble Lord made it sound like a communist organisation of a most insidious kind. He spoke as though he was Senator Joe McCarthy. That is not part of this debate. Your Lordships' views are not formed by being lobbied. Each Member of the House speaks for herself or himself.

Thirdly, the noble Lord is entirely mistaken in thinking that the proposal that was made by the noble Lord, Lord Alexander of Weedon, the noble and learned Lord, Lord Simon of Glaisdale, the noble Lord, Lord Irvine of Lairg, and myself for better scrutiny by this

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House of primary and subordinate legislation to see whether it complies with the European convention is some kind of lawyers' ramp designed to encourage litigation or line the pockets of the Bar. That is completely misguided. The whole purpose of that proposal—not a Charter 88 proposal—is to reduce litigation by ensuring as far as one can that our legislation complies with our international treaty obligations. So the noble Lord, Lord Cocks, with his conspiracy theory need not worry about that any further.

In my opening speech, I quoted some words by a great American judge, Judge Learned Hand. As I listened to this extremely distinguished debate, I was reminded of some other words of that great judge when he said,

    "The spirit of liberty is the spirit that is not too sure that it is right".

I am not at all sure that I am right in the precise way in which the Bill has been formulated. All that I am confident of is the diagnosis that there is a serious constitutional and legal problem which needs to be tackled by legislation on these lines.

Since the Minister shakes her head, perhaps I may give the House one example to serve for all. As your Lordships know, there are many examples of serious breaches of the convention which have arisen from the common law, such as Spycatcher, Harriet Harman and Thalidomide; which have arisen as a result of legislation, such as the closed shop case; and which have arisen as a result of administrative discretion, such as the Golder and Silver prisoners' correspondence cases, the detention of mental health patients, and so on.

I should like to focus on one pending case—it is pending before the European Commission of Human Rights—to illustrate the gravity of the problem upon which, in my respectful view, the noble and learned Lord, Lord Browne-Wilkinson, rightly focused when he said that the main problems are not the clear, blatant and deliberate breaches by Parliament, but inadvertent breaches by over-broad delegation of power to Ministers and civil servants which then lead to breaches of the convention.

I refer to a case that is being brought by the Fair Employment Commission, a public authority in Northern Ireland, against the United Kingdom in respect of Ministers' certificates blocking access to industrial tribunals where Catholics complain of religious discrimination in employment in Northern Ireland. If those complainants were women and they were complaining of sex discrimination in employment and, as was the case some years ago, the Minister issued a certificate blocking their claim to access to justice in an industrial tribunal, they would have an effective domestic remedy straight away in the industrial tribunal because, under European Community law, a Minister's certificate cannot breach the European rule of law. The Luxembourg Court so ruled in Johnstone v. The Chief Constable of the Royal Ulster Constabulary. So women across the United Kingdom cannot have their sex discrimination claims blocked by ministerial fiat, but they can (because Parliament has authorised it) have them so blocked if the claim is based on religious

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discrimination. The only remedy open to such alleged victims is to take their case to Strasbourg. Because all the new democracies are clogging up the courts, as we are, six or seven years later—by which time they may be old and unemployable—they may get a remedy.

That is a problem. I can describe many others, but I promised not to. The Government will be pleased that there are not domestic remedies because they prefer, understandably, as all previous governments have, to play it long; to wait as long as they possibly can for the Strasbourg institutions to rule; and meanwhile, the ordinary men and women affected by that practice have no domestic remedy. English judicial review cannot reach the problem because the statute has authorised the issuing of that certificate; the purpose stated is deemed to be conclusive; the common law is helpless; and there are no positive rights for our citizens.

The central object of the Bill is to place our courts in exactly the same position as the European Court of Human Rights—no more and no less. Sovereignty was passed from this country to Strasbourg on 1st January l966 when the first Wilson government agreed that there should be a right of petition to the European Commission and Court of Human Rights. It passed because the judgments of that court are binding upon Parliament as well as the courts and the public administration. I regret to say that the decision was taken without even a Cabinet committee discussing it. Therefore, it is not altogether to the point to speak of the sovereignty of Parliament. Parliament is no longer sovereign. It is bound in international law to comply with the European Court's judgments.

The purpose of the Bill is to return some real sovereignty and power to our own courts so that they can have the first bite at human rights violations before cases go to Strasbourg. I should like to make it clear that, if the Bill is seen in any way to threaten the right of a future Parliament to override the convention in extreme circumstances, or for that matter to amend the Bill of Rights in any way, it is not intended to fetter parliamentary sovereignty at all, and it will be sensible for it to be amended for that to be made clear.

I hope that the noble and learned Lord, Lord Donaldson of Lymington, will forgive me if I do not seek to persuade him to take a different view of the matter. I am a poor advocate. I have argued before him as an advocate many times, and I have never persuaded him to take the convention in the way that I hoped he would, and I shall not succeed now. With great respect to him, perhaps I may leave aside the general arguments and philosophy and go to the particular points made by the noble and learned Lord the Lord Chief Justice, Lord Taylor of Gosforth, speaking on his own behalf and that of the noble and learned Lord, Lord Woolf, and the noble and learned Lord, Lord Browne-Wilkinson.

I am intimidated to be faced by three jurists of such eminence, each of whom has looked so carefully at the Bill. Having heard them, perhaps I may say this—these are all points that would need to be pursued in Committee—first, I respectfully agree that Clause 4 is too broad and too rigid in creating a constitutional tort with an apparent right to damages. It needs to be amended so that the remedies, as the noble and learned

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Lord, Lord Taylor, said, would be discretionary, and would of course be capable of including compensation, but not as of right.

Secondly, I again agree that there is a need to ensure that Parliament can derogate under our domestic law, as it is entitled to under Article 15 of the convention. Article 15 is incorporated, and our law should match that right to derogate.

Thirdly, I agree that there is a need to ensure that parliamentary sovereignty is preserved expressly; and, fourthly, I agree with noble Lords that there is a problem about the choice of the appropriate court which is to tackle convention problems. The natural court is the Queen's Bench Division, the Divisional Court, acting under Order 53. But I respectfully disagree with the notion that in every case where a convention point arose there would have to be what the noble and learned Lord, Lord Donaldson, happily described as "convention blight"—a situation in which a case had to be halted in its tracks while a possibly hypothetical convention point was referred to a more senior court. In my view, it is

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more sensible to make the litigant take his or her convention point in the appropriate court, get the facts found and then have it dealt with thereafter.

The noble and learned Lord, Lord Browne-Wilkinson, suggested that there was a danger that one might be going too far by one's approach to statutory interpretation. My fear would be that the New Zealand approach would go scarcely further than the existing approach in this country of a presumption of conformity with the convention. But I strongly agree that most cases could be solved by a formula of that kind.

I have spoken for too long and apologise for doing so. However, I thought it right to try to deal with some of the points. I hope that I have succeeded in showing that at least I understand the problems, even if I do not have answers to all of them. I commend the Bill to the House.

On Question, Bill read a second time, and committed to a Committee of the Whole House.

Sheffield Assay Office Bill

Brought from the Commons, read a first time and referred to the Examiners.

        House adjourned at twenty-four minutes before eleven o'clock.

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