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Lord Wilberforce: My Lords, I am very much indebted to all those who have spoken on these amendments. As between the noble Lord, Lord Mishcon, and myself there is no difference whatever. I am very happy to agree with the way in which he put the case, which was far better than I did in opening. On principle we are totally agreed. The only difference is the period and whether it should be three months or 12 months.

As regards other noble Lords who have spoken, we have had the consolation of hearing some of them say that at least these amendments make the Bill better. The noble Lord, Lord McIntosh, like many of us, did not like the Bill at all. He said that at least it was a great improvement to take either our amendment or that of the noble Lord, Lord Mishcon. On that basis I am content to commend the matter to the House.

With reference to the danger of confrontation which was emphasised by the noble Lord, Lord Clinton-Davis, of course that is a very real consideration. I mentioned it in opening. I suggest that the point I made is a valid one; namely, that our amendments make the Bill less confrontational than it was before. It may be that it is still open to objection and it may be that another place will turn it down. This is an improvement on the Bill and as such we commend it to the House.

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As regards Clauses 2 and 3, it is clear that Clause 2 is not affected in any way by either amendment because it states only the common law anyway. As regards Clause 3 and our three-month amendment, it is very unlikely to cause any difficulty because, for a case to get to the Court of Appeal after a hearing by a judge of first instance, three months is bound to have elapsed anyway. Therefore there is no practical problem. If 12 months were chosen, there might be a difficulty. In that case it would be necessary either for the noble Lord, Lord Mishcon, or the noble Lord, Lord Campbell, to produce an adjustment to Clause 3 at Third Reading to take account of that difficulty.

I suggest that your Lordships need not be worried as to the implications of Clauses 2 and 3, but should vote on the simple question whether my amendment or that of the noble Lord, Lord Mishcon, is or is not an improvement to the Bill. On the basis that it is, although no doubt a modest one and one that leaves difficulties with the Bill, still an improvement, I commend Amendment No. 1 and later Amendment No. 2 to the House.

On Question, amendment agreed to.

Clause 4 [Short title and extent]:

Lord Wilberforce moved Amendment No. 2:


Page 2, line 1, at end insert:
("(3) This Act shall come into force three months after Royal Assent.").

The noble and learned Lord said: My Lords, I have already spoken to this amendment. I beg to move.

Baroness Blatch: My Lords, I shall be guided on this point. I understand that my noble friend Lord Campbell of Alloway was anxious to speak to Amendment No. 3 in the name of the noble Lord, Lord Mishcon. I am not sure whether he was hinting that 12 months is preferable to three months, but my understanding is that if we accept this amendment, the next amendment may fall—

Noble Lords: No!

Baroness Blatch: My Lords, I am advised that it will not, and that it is possible to speak to both amendments.

Lord Campbell of Alloway: My Lords, with the leave of the House, perhaps I may explain my position. I, so to speak sub silentio, in view of the way in which the debate ranged and the time available, have waived my respectful request and I personally am prepared not to reply to the noble Lord, Lord Mishcon. The noble and learned Lord, Lord Wilberforce, has, in effect, dealt with the situation.

On Question, amendment agreed to.

Lord Mishcon moved Amendment No. 3:


Page 2, line 1, at end insert:
("(3) This Act shall come into force twelve months after Royal Assent.").

The noble Lord said: My Lords, I certainly do not intend to address your Lordships again on the amendment, but there is something that I feel that I must say and I think that it will meet with the approval of the whole House.

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We have been discussing the dreadful effect of the passage of the years. When I heard the speech of my noble friend Lord Houghton of Sowerby, I realised that years mean nothing to some Members of your Lordships' House. Although he spoke in terms which were contrary to the view that I put, I pay him the respect which I believe the House always has for his speeches. We hope that he will go on making them for many more years to come. Having said that, I beg to move.

7.42 p.m.

The Deputy Speaker (Viscount Allenby of Megiddo): My Lords, it may be for the convenience of the House if I inform your Lordships that, having agreed Amendment No. 2, the wording of Amendment No. 3 is changed as follows:


    Amendment proposed: Page 2, line 1, leave out the words last inserted and insert the new words as printed on the Marshalled List.

The Question is, That Amendment No. 3 be agreed to? As many as are of that opinion will say, "Content"; to the contrary, "Not-Content". I think that the "Not-Contents" have it. Clear the Bar.

Division called.

Tellers for the "Contents" have not been appointed pursuant to Standing Order No. 51. A Division therefore cannot take place, and I declare that the "Not-Contents" have it.

Amendment negatived.

Human Rights Bill [H.L.]

7.46 p.m.

Lord Lester of Herne Hill: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Lord Lester of Herne Hill.)

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Viscount Allenby of Megiddo) in the Chair.]

Clause 1 [Incorporation of European Convention on Human Rights into United Kingdom law]:

Lord Lester of Herne Hill moved Amendment No. 1:


Page 1, line 8, leave out from ("1950") to ("and") in line 9.

The noble Lord said: In moving this amendment, with the leave of the Committee, I should like to speak also to Amendments Nos. 11 and 12. Perhaps I may explain that these are purely technical drafting amendments, which arise as follows: Clause 1(1) (a) in its present form refers to Section I of the European Convention on Human Rights,


    "(as amended by the Third, Fifth and Eighth Protocols to that Convention)".

In fact, however, Section I of that Convention, which is set out in Schedule 1, has not been amended by any of those protocols. Other provisions of the Convention have been amended, but not Section I. It is therefore unnecessary to include in the Bill the words in brackets. That is why Amendment No. 1 is necessary.

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Amendments Nos. 11 and 12 are consequential. Schedule 1 should begin "Schedule I of the Convention" rather than "The Convention". Again, the words in brackets in line 5 of the schedule are unnecessary for the reasons that I have sought to explain.

Lord Campbell of Alloway: These amendments are entirely acceptable as they do not conflict with Amendment No. 2 which I propose to move in due course.

Baroness Blatch: Am I right in assuming that Amendments Nos. 1, 11 and 12 are being taken together? I understand that they are purely technical amendments. The current references in the Bill are effectively redundant in that the Third, Fifth and Eighth Protocols relate only to articles in Section III of the convention, which is concerned primarily with procedural matters. Although the Government believe that the Bill itself is unnecessary, in the context of the Bill, the amendments are eminently sensible.

Lord Lester of Herne Hill: I am grateful to the Minister.

On Question, amendment agreed to.

Lord Campbell of Alloway moved Amendment No. 2:


Page 1, leave out lines 13 to 25 and insert:
("(2) The provisions set out in subsection (1) above shall—
(a) serve as an aid to the construction of primary and secondary legislation; and
(b) be taken into account in equity and at common law, so that effect may be given to them in any legal proceedings in the United Kingdom in accordance with the principles established by the jurisprudence of the European Court of Human Rights.
(3) For the purposes of this section the procedure at first instance and on appeal shall be governed by such Rules of Court or Practice Directions as may be made.").

The noble Lord said: I shall speak also to Amendment No. 13 to the Title which is consequential upon Amendment No. 2. The amendments acknowledge the principle of incorporation, as accepted by this place on Second Reading, but propose an entirely different and alternative means of implementation. The amendments are wholly supportive of the steadfast opposition to the Bill, as it stands, shared by many Members on all sides of the Committee and admirably expressed in the detailed exposition of my noble friend Lady Blatch on Second Reading (Hansard, cols. 1163-1170).

With the consent of the Committee, to save time and for clarification, and for the convenience of the Committee, perhaps I may try to clear the yard arm of the cat's cradle of the amendments to Clause 1. It is understood that the noble Lord, Lord Cocks of Hartcliffe, does not propose to move Amendments Nos. 3, 5, 6 and 7 which were tabled before Amendments Nos. 2 and 13 were tabled and that the noble Lord proposes to support my amendments instead of his own.

Amendments Nos. 4 and 8 are subsumed by subsection (2) (a) of Amendment No. 2, but leave in place in Clause 1(2), lines 13 to 15, which Amendment No. 2 deletes. Amendment No. 2 substitutes subsection

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(2) (a), which is subsumed, and subsections (2) (b) and (3), which are not subsumed by the amendments tabled by the noble Lord, Lord Lester.

Amendments Nos. 1 and 4 are wholly compatible with Amendments Nos. 2 and 13. I hope that we can now get down to substance, having clarified the cat's cradle. I shall be brief. The Committee is much more interested in the noble Lord's contribution to the debate than in my introduction. It is accepted that there should be a domestic forum. As the noble and learned Lord, Lord Browne-Wilkinson, said on Second Reading, if we cannot go along with the whole Bill, an amendment such as my Amendment No. 2 would set aright:


    "a ludicrous Mad-Hatter's tea party position".—[Official Report, 25/1/95; col. 1149.]

It would be largely effective to avoid the expense and delay of having to exhaust all domestic appellate procedures before taking a case to the Commission or to the European Court of Human Rights. It will tend to alleviate the burden upon the Government of lost cases before that court. It would most assuredly meet the concerns of the noble and learned Lord, Lord Lloyd of Berwick, as he expressed them on Second Reading. I am glad to see him in his place.

There is also reason to hope—one can never put anything higher than that when introducing a Bill or an amendment—that the amendment, on objective examination, may commend itself to Members of the Committee who supported the Bill as it stood on Second Reading, including the noble and learned Lord, Lord Taylor of Gosforth, who spoke also for the Master of the Rolls, the noble and learned Lord, Lord Woolf, whom I think I am relieved—I shall wait and see what he has to say—to see in his place, and the noble Lord, Lord Williams of Mostyn, who is also in his place (which is fortunate) who on behalf of himself and the Labour Party gave warm but, to be fair to the noble Lord, qualified support subject to further scrutiny of the Bill.

In short form—the Committee does not want a long speech —the objections to Clause 1 as it stands are that the Bill derogates from the sovereignty of Parliament. The judiciary would have power to override the legislature; to set aside Acts of Parliament. Parliament would retain no residual power to override the convention, even in exceptional circumstances. In that context, the separation of powers under our unwritten constitution, and safeguarded only by our unwritten constitution, would no longer exist.

The United Kingdom—this point has not yet been taken in discussion—is the only signatory state to the convention which does not have a written constitution. If other states such as Switzerland, Austria, Italy, Belgium, the Netherlands, Portugal, France and Sweden have incorporated the convention into domestic law, so be it. Incorporation has failed to afford any effective assurance of remedial action for breach as compared with the excellent record of the United Kingdom in that regard.

There are 89 cases awaiting resolution, of which only three arise in the United Kingdom, two of which relate to judgments. Those figures are as recent as October 1994. Problems of non-compliance with the convention in the United Kingdom could be resolved satisfactorily

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by a domestic forum, as proposed by the amendment, which introduces no constitutional innovation which derogates from the sovereignty of our Parliament.

As to the amendments, a distinction is drawn between our two sources of law which is not readily intelligible to countries which operate a type of Napoleonic code; first, there are laws made by Parliament or under the authority of Parliament (subsection (2) (a)). Secondly, our judge-made law, in equity and at common law, is dealt with in subsection (2) (b) of the amendment. As regards the laws made by Parliament, under this amendment the judiciary would be enjoined to have regard to the provisions of the convention to serve as an aid to primary and secondary legislation so as to ensure whenever possible that the provisions of the convention are not infringed.

I made a submission to such effect some years ago when opposing the Bill brought forward by Lord Broxbourne. I was reminded of that when I read the speech of the noble and learned Lord, Lord Browne-Wilkinson, on Second Reading on 25th January 1995, col. 1149 of the Official Report. I am indebted to the noble and learned Lord for jogging my memory.

As regards judge-made law, the judiciary when applying or extending aspects of equity or the common law would be enjoined to do so in conformity with the provisions of the convention. As regards both types and sources of law, the judiciary would be enjoined to have regard to the jurisprudence of the Commission and the Court of Human Rights. Implementing procedures would be introduced, which is subsection (3) of the amendment. I beg to move.


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