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Lord Woolf: I oppose the Question that Clause 4 stand part of the Bill. I suggest that it is an unnecessary and undesirable provision, particularly having regard to the amendments which have been made to earlier parts of the Bill. At Second Reading, the noble Lord, Lord Lester, was good enough to indicate that he thought that some consideration should be given to the terms of Clause 4 because of its width. It is my suggestion that the best course now is to drop Clause 4 as unnecessary.

Baroness Blatch: The Government too are unhappy about Clause 4, along with one or two other people in this Chamber. While the provisions of Clause 1 lie at the heart of the Government's objections to the Bill, the provisions of Clause 4 also cause considerable concern, particularly in terms of their creation of an automatic right of action for breach of statutory duty, whereby almost any actions by individual Ministers or public servants could be deemed open to challenge, irrespective of the fact that the provisions of the convention were intended to be binding upon governments and not upon individuals.

The Government retain very strong concerns about the provisions in Clause 4 and could not support the inclusion of the clause, although we shall not oppose it on this occasion.

Lord Lester of Herne Hill: I hope that Mr. Tony Blair has the same ease in dropping Clause 4 from the constitution of his party as this Chamber has in persuading noble Lords to drop this Clause 4.

Perhaps I may briefly say something about the interesting speech of the noble Lord, Lord Sefton. Oddly enough, I have great sympathy with much of what he said. I have little sympathy with his attack on Charter 88. I am sure that the noble and learned Lord, Lord Scarman, who chairs Charter 88, will be surprised to know that he is leading an out of touch body of that kind. I should like to remind the noble Lord, Lord Sefton, that a MORI poll, with which I and my colleagues had nothing whatever to do, was published in The Times a couple of weeks ago. It showed that the only measure of constitutional reform that has real popularity across the country is incorporation of the convention; 73 per cent. of the people want it. I do not know their class and I am not interested; but more than seven out of 10 want a Bill of this kind. It is therefore not some kind of ivory tower, intellectual, elitist, professorial measure. It is something that people want.

I agree with the noble Lord, Lord Sefton, that access to justice is extremely important, and if this were a government Bill and any government were crazy enough to ask me to be a member of it, for my part I should like to see a human rights commission in the Bill, able to take up cases of merit and fund them. I should like to see legal aid targeted in that way so that people of

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limited means could have their cases taken up. I should like to see a director of civil proceedings able to take on public interest cases.

But this is a Private Member's Bill and, as the Committee is aware, there are inhibitions on what can be done. Even if it were not a Private Member's Bill, there are still limitations as to what can be done in relation to finance in a measure of this kind.

As I say, I have sympathy with the need to ensure access to justice, not only here but also in Strasbourg. However, that is not possible in the Bill. I can reassure the noble Lord that many working class people—they may not be people of whom the noble Lord, Lord Sefton, would approve—found remedies under the convention. For example, prisoners of various kinds; people seeking legal aid in Scotland who are denied it; a battered wife unable to obtain legal aid for a judicial separation in Ireland; a working-class man in Liverpool unable to obtain records about himself from Liverpool City Council. It is therefore not true that it is a charter for the rich, though I agree that at the moment the rich are more likely to be able to take advantage of it.

The problem with Clause 4 is that it purports to create a general constitutional tort. I recognise that the circumstances in which a Minister or public officer should be liable in tort will vary tremendously from case to case. In some cases one needs a mental element—misfeasance in public office; in some cases no mental element is present —an unlawful search and seizure, a trespass. The great defect in Clause 4 is that it fails to specify with enough particularity the circumstances in which public officers will be liable. I am comforted by the fact that by incorporating Article 13 of the convention into the law of the land, we shall be incorporating a requirement for the courts to fashion effective domestic remedies for violations of the convention. Speaking for myself I am content to leave it to the courts, using their discretionary powers in fashioning relief in judicial review cases, to fashion on a case by case basis appropriate discretionary remedies to give effect to Article 13. For those reasons I support everything which has been said by the noble and learned Lord, Lord Woolf, in regard to the objections to Clause 4.

9.15 p.m.

Lord Hylton: Before the noble Lord sits down, perhaps he will consider at a later stage whether there should still be a reference to the right of individual petition, which should not be entirely lost sight of.

Lord Lester of Herne Hill: The United Kingdom is committed on the international plane to ensuring the right of individual petition for everyone within its jurisdiction. I am glad to say that the Government recently ratified Protocol 11 to the convention, which will create a permanent right of access to a permanent court of human rights. That is one of the great steps forward that the Government have taken in the European protection of human rights. Now that we have ratified Protocol 11, which I anticipate will come into force within the next two years, it will no longer be possible for a future Parliament to take away that precious right

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unless it delegates from the convention itself. If the noble and learned Lord, Lord Donaldson of Lymington, will forgive me for saying so, that is something that no member state of the Council of Europe—none of the 34 from Turkey to Ireland —would wish to do. Indeed, they are queuing up to join.

Baroness Blatch: Before the noble Lord sits down, perhaps I can say that from my own experience there is a great misconception among many people who believe that unless we have incorporation of the ECHR, somehow or other they do not enjoy its protection. I am not absolutely certain, nor am I convinced, that that point was properly understood when people on market squares and streets throughout the country were posed the question whether they agreed it was a good thing. Does not the noble Lord agree with me that the incorporation of the convention does not increase the protection of United Kingdom citizens; nor does it guarantee fewer referrals to the ECHR; nor does it minimise the cost and nor does it minimise waste of time or effort, as evidenced by the record of the countries where the ECHR has been incorporated in their law.

I hope that the noble Lord will agree that the Bill transfers power and influence from Parliament to the judiciary, in all its forms, making sometimes good decisions, sometimes bad decisions and sometimes decisions of indifference.

Lord Lester of Herne Hill: The Minister asked a number of questions which I should like to answer briefly. First, on the issue of the transfer of power, the Bill transfers sovereignty back from Strasbourg to Westminster. By that, I mean that in 1966 when the Government allowed the right of petition and accepted the jurisdiction of the European Court over Parliament, as they did, they transferred sovereignty to Strasbourg. This Bill transfers sovereignty back to Parliament to enact a Bill to empower our judges on limited terms to provide local remedies. That is an affirmation of parliamentary sovereignty, not a denial of it. The Bill also gives effect to subsidiarity. It places our local institutions in the first line.

Secondly, the noble Baroness asked whether the Bill would improve the effective protection of human rights in this country. The answer is that it would, for this reason. It would mean that, where Ministers are given

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broad powers in a parliament dominated by the Executive and they then violate the convention by disregarding its provisions in the exercise of those powers, the citizen will be able to get a speedy and effective local remedy. Advocates like me will no longer eat in Strasbourg and drink the delicious Alsatian wine, going to the European Court, because our clients will be able to get speedy, effective local remedies from British judges.

Therefore, I believe that this strengthens the protection. I have little doubt that ordinary men and women in this country are quite astonished that a modest mouse of a Bill —which is what it has become—can still be a Bill which the Government feel unable to support.

Lord Campbell of Alloway: The discussion goes far wide of Clause 4 and we are wasting time on incorporation. My noble friend Lady Blatch is absolutely right. The noble Lord, Lord Lester, is, in my view, absolutely wrong for the reasons that I have already given. We are talking about Clause 4 and not Alsatian wine.

Clause 4 negatived.

Clauses 5 and 6 agreed to.

Schedule 1 [The Convention for the Protection of Human Rights and Fundamental Freedoms agreed by the Council of Europe at Rome on 4th November 1950 (as amended by the Third, Fifth and Eighth Protocols).]:

Lord Lester of Herne Hill moved Amendment No. 11:


Page 3, line 3, at beginning insert ("SECTION 1 OF").

The noble Lord said: I have already spoken to these technical amendments and have nothing to add. I beg to move.

On Question, amendment agreed to.

Lord Lester of Herne Hill moved Amendment No. 12:


Page 3, leave out line 5.

On Question, amendment agreed to.

Schedule 1, as amended, agreed to.

Schedule 2 agreed to.

In the Title:

[Amendment No. 13 not moved.]

House resumed: Bill reported with amendments.

        House adjourned at twenty-five minutes past nine o'clock.

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