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Baroness Symons of Vernham Dean: My Lords, the precise terms of any new mandate must be discussed fully within NATO. The SFOR mandate allows troops to detain any indictees whom they come across in the course of their duties if the situation permits. The operation by British SFOR troops to detain two indictees in Prijedor in July underlines the present determination to ensure that all war criminals are brought to justice. The Government have consistently said that SFOR troops will detain indicted persons with whom they come into contact in the course of their duties, provided that the tactical situation permits.
The Ministry of Defence operates a medical assessment programme for all veterans of the Gulf War which provides a diagnostic assessment of veterans' health. A full report, which includes recommendations for any treatment which is considered by MAP physicians to be appropriate, is sent to the patient's doctor. For serving members of the Armed Forces this is normally their unit medical officer and for ex-service personnel a general practitioner within the NHS.
The Countess of Mar: My Lords, I thank the noble Lord for that reply. But is he aware that many GPs who are sent results of tests from the medical assessment programme do not understand them and file them at the back of patients' files? Further, is he aware that one patient of whom I have heard today has been struck off his GP's list because his requirements are too extensive, given the multiple nature of his illness, and that another patient who was referred to Airedale Hospital has been refused funding, despite recommendations from various consultants and the MAP programme, with the result that his parents must dig into their nest egg? Is the Minister aware also of numerous other instances where six years after the Gulf War patients have not received correct medical treatment?
Lord Gilbert: My Lords, if I correctly understand the supplementary question put by the noble Countess, it appears that her major complaint is against certain practitioners within the NHS. If however representations are made to the Ministry of Defence that the information that is passed on to practitioners is too difficult to understand, I shall invite my right honourable friend in the other place to look into these matters.
The Lord Chancellor (Lord Irvine of Lairg): My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Human Rights Bill, has consented to place Her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
I beg to move that this Bill be now read a second time. I am sure that the whole House looks forward to the maiden speech of the noble Baroness, Lady Amos, in this debate. I am delighted that she, a former chief executive of the Equal Opportunities Commission, has chosen this occasion for what I am sure will be a distinguished debut.
I chair many Cabinet committees, but none that has given me greater satisfaction than the committee whose labours have brought this Bill forward in the first legislative Session. It occupies a central position in our integrated programme for constitutional change. It will allow British judges for the first time to make their own distinctive contribution to the development of human rights in Europe. It is today a happy reflection that British jurisprudence will shortly flow into an inspired modern building, the European Court of Human Rights in Strasbourg. The architect chosen after an international competition is that great British architect, Richard Rogers, my noble friend Lord Rogers of Riverside, who recently took his place on the Government Benches.
I look forward especially to the contribution today of the noble Lord, Lord Lester of Herne Hill. His major role in the development of the anti-discrimination legislation of the 1970s under the future Lord Jenkins of Hillhead is well known. I should also acknowledge from this position, as did the White Paper, that he has perhaps for 30 years been a tireless campaigner for legislation on human rights. His has not been a silent but an eloquent vigil, and his day has now almost arrived.
It is also a great pleasure to see the noble and learned Lord, Lord Scarman, in his place today and to note that he is to speak in the debate. He has an even longer record of distinguished advocacy on human rights legislation than that of the noble Lord, Lord Lester of Herne Hill.
This is a Government who see Britain's future as a strong and leading participant in the Council of Europe and the European Union. This Bill is further evidence of that. It was not edifying to begin Friday, 24th October by hearing the shadow Home Secretary, Sir Brian Mawhinney, on the "Today" programme railing at
The traditional freedom of the individual under an unwritten constitution to do himself that which is not prohibited by law gives no protection from misuse of power by the state, nor any protection from acts or omissions of public bodies which harm individuals in a way that is incompatible with their human rights under the convention. Our legal system has been unable to protect people in the 50 cases in which the European Court has found a violation of the convention by the United Kingdom. That is more than any other country except Italy. The trend has been upwards. Over half the violations have been found since 1990. I have no doubt that with his distinguished European background the noble Lord, Lord Kingsland, will reject as absurd the proposition that because we have liberty, we have no need of human rights. This is a Home Office Bill. I invite the noble Lord, Lord Kingsland, to define in his speech what is the policy, what is the position in principle, of the Shadow Home Secretary and of the Conservative Party on this Bill.
This Bill will bring human rights home. People will be able to argue for their rights and claim their remedies under the convention in any court or tribunal in the United Kingdom. Our courts will develop human rights throughout society. A culture of awareness of human rights will develop. Before Second Reading of any Bill the responsible Minister will make a statement that the Bill is or is not compatible with convention rights. So there will have to be close scrutiny of the human rights implications of all legislation before it goes forward. Our standing will rise internationally. The protection of human rights at home gives credibility to our foreign policy to advance the cause of human rights around the world.
Our critics say the Bill will cede powers to Europe, will politicise the judiciary and will diminish parliamentary sovereignty. We are not ceding new powers to Europe. The United Kingdom already accepts that Strasbourg rulings bind. Next, the Bill is carefully drafted and designed to respect our traditional understanding of the separation of powers. It does so intellectually convincingly and, if I may express my high regard for the parliamentary draftsman, elegantly.
The design of the Bill is to give the courts as much space as possible to protect human rights, short of a power to set aside or ignore Acts of Parliament. In the very rare cases where the higher courts will find it impossible to read and give effect to any statute in a way which is compatible with convention rights, they
Before I turn to the detail of the Bill, I am determined to address concerns that have recently been expressed by the press. First, the Government are not introducing a privacy statute. They have resisted demands that they should. They believe that strong and effective self-regulation is the best way forward in the interests of both the press and the public. It is well known, and deserves to be better known, that the noble Lord, Lord Wakeham, the Chairman of the Press Complaints Commission, with which I was myself associated until May as a member of the appointments commission which appoints its members, has begun the necessary work of strengthening self-regulation. Although much remains to be done, there have already been significant improvements which are as welcome to government as to the wider public. We look forward to the noble Lord's good work continuing and prospering. It is strong and effective self-regulation if it--and I emphasise the "if"--provides adequate remedies which will keep these cases away from the courts.
I want, however, to address directly the concerns of the press about how the courts will deal with Article 10 (freedom of expression, a central part of which is freedom of the press) and Article 8 (privacy) once the convention is incorporated. I am a strong upholder of the freedom of the press; and I am a member of a Government who, as a whole, give the highest value to upholding the freedom of the press. The European Court has in terms declared that Article 10,
In 1990 the noble and learned Lord, Lord Goff, declared that in the field of freedom of speech there was no difference in principle between English law and Article 10. In 1993 the noble and learned Lord, Lord Keith, stated uncompromisingly:
I say as strongly as I can to the press: "I understand your concerns, but let me assure you that press freedom will be in safe hands with our British judges and with the judges of the European Court". I add this, "You know that, regardless of incorporation, the judges are very likely to develop a common law right of privacy themselves. What I say is that any law of privacy will be a better law after incorporation, because the judges will have to balance Article 10 and Article 8, giving Article 10 its due high value".
More practically, I do not envisage the press going down to late Friday or Saturday privacy injunctions, disruptive of publishing timetables, if the press has solid grounds for maintaining that there is a public interest in publishing. The doors of my officials and of my right honourable friend the Home Secretary have been open throughout the summer to anyone interested to discuss the practical implications of incorporation. There were many who walked through our doors. They remain open. I say emphatically to editors and media lawyers, interested to discuss with us appropriate arrangements for handling these cases, where self-regulation has failed to nip them in the bud, "You are welcome to come and make your views known to us".
I now turn to the detail of the Bill. Clause 1 lists the convention rights that are to be given further effect in the United Kingdom by the Bill. They range from the right to a fair trial to the right to life itself; and they are all fundamental human rights. The text is set out in Schedule 1 to the Bill. Also, Clause 1 makes it possible for the rights contained in other protocols to be added to the Bill if the United Kingdom becomes a party to them in future.
Clause 2 requires courts in the United Kingdom to take account of the decisions of the convention institutions in Strasbourg in their consideration of convention points which come before them. It is entirely appropriate that our courts should draw on the wealth of existing jurisprudence on the convention.
Clauses 3 to 5 are concerned with the relationship between the convention rights and other legislation. Clause 3 provides that legislation, whenever enacted, must as far as possible be read and given effect in a way which is compatible with the convention rights. This will ensure that, if it is possible to interpret a statute in two ways--one compatible with the convention and one not--the courts will always choose the interpretation which is compatible. In practice, this will prove a strong form of incorporation.
Clause 4 provides for the rare cases where the courts may have to make declarations of incompatibility. Such declarations are serious. That is why Clause 5 gives the Crown the right to have notice of any case where a court is considering making a declaration of incompatibility and the right to be joined as a party to the proceedings, so that it can make representations on the point.
A declaration of incompatibility will not itself change the law. The statute will continue to apply despite its incompatibility. But the declaration is very likely to prompt the Government and Parliament to respond.
In the normal course of events, it would be necessary to await a suitable opportunity to introduce primary legislation to make an appropriate amendment. That could involve unacceptable delay when Parliamentary timetables are crowded. We have taken the view that if legislation has been declared incompatible, a prompt parliamentary remedy should be available. Clauses 10 to 12 of the Bill provide how that is to be achieved. A Minister of the Crown will be able to make what is to be known as a remedial order. The order will be available in response to a declaration of incompatibility by the higher courts. It will also be available if legislation appears to a Minister to be incompatible because of a finding by the European Court of Human Rights.
We recognise that a power to amend primary legislation by means of a statutory instrument is not a power to be conferred or exercised lightly. Those clauses therefore place a number of procedural and other restrictions on its use. First, a remedial order must be approved by both Houses of Parliament. That will normally require it to be laid in draft and subject to the affirmative resolution procedure before it takes effect. In urgent cases, it will be possible to make the order without it being approved in that way, but even then it will cease to have effect after 40 days unless it is approved by Parliament. So we have built in as much parliamentary scrutiny as possible.
In addition, the power to make a remedial order may be used only to remove an incompatibility or a possible incompatibility between legislation and the convention. It may therefore be used only to protect human rights, not to infringe them. And the Bill also specifically provides that no person is to be guilty of a criminal offence solely as a result of any retrospective effect of a remedial order.
So far I have spoken about the relationship between the convention rights and legislation and about what happens if they cannot be reconciled. That is only the first way in which the Bill brings rights home. On its own that would be insufficient. I turn now to the second way, which is in Clauses 6 to 9. Clause 6 makes it unlawful for a public authority to act in a way which incompatible with the convention. Before I explain what that means in practice, I should say something about our approach to the application of this Bill to public authorities. We decided, first of all, that a provision of this kind should apply only to public authorities,
Clause 6 is designed to apply not only to obvious public authorities such as government departments and the police, but also to bodies which are public in certain respects but not others. Organisations of this kind will be liable under Clause 6 of the Bill for any of their acts, unless the act is of a private nature. Finally, Clause 6 does not impose a liability on organisations which have no public functions at all.
If people believe that their convention rights have been infringed by a public authority, what can they do about it? Under Clause 7 they will be able to rely on convention points in any legal proceedings involving a public authority; for example as part of a defence to criminal or civil proceedings, or when acting as plaintiff in civil proceedings, or in seeking judicial review, or on appeal. They will also be able to bring proceedings against public authorities purely on convention grounds even if no other cause of action is open to them.
If a court or tribunal finds that a public authority has acted in a way which is incompatible with the convention, what can it do about it? Under Clause 8 it may provide whatever remedy is available to it and which seems just and appropriate. That might include awarding damages against the public authority. We have concluded that if a court is considering an award of damages for an act which is incompatible with the convention, then it should have regard to the principles applied by the European Court of Human Rights. Our aim is that people should receive damages equivalent to what they would have obtained had they taken their case to Strasbourg.
Clause 9 is concerned with what happens when a court or tribunal acts in a way which is incompatible with the convention. Here we have preserved the existing principle of judicial immunity and have provided that proceedings against a court or tribunal on convention grounds may be brought only by an appeal or application for judicial review. I have spoken at some length about the two main ways in which the Bill brings right home. I now deal more briefly with the other provisions of the Bill.
Clauses 14 to 17 are concerned with derogations from, and reservations to, articles of the convention. The United Kingdom has one derogation and one reservation in place, relating to Article 5(3) of the convention and Article 2 of the first protocol, respectively, and those articles have effect subject to them. The text of the derogation and reservation is set out in Schedule 2 to the Bill. They will have domestic effect in accordance with the provisions of the Bill. Any future derogation
Clause 18 stands apart from the other provisions of the Bill. It is concerned with the appointment of judges to the European Court of Human Rights. That Court is being reconstituted next year as a new permanent Court and one of its member judges will come from the United Kingdom. In drawing up nominations for that post, we want to be able to select from a wide field of suitably qualified candidates. One disincentive which might discourage some potential candidates from coming forward is that sitting full-time as a judge at Strasbourg would be incompatible with performing the duties of a judge in the United Kingdom. Under our present law, a judge would have to resign his office here in order to take up the appointment at Strasbourg, with no guarantee of reinstatement at the end of the term of office. Clause 18 is designed to remove that obstacle, so that if a judge is appointed to the European Court he will have the right to return to the bench in the United Kingdom after his term at Strasbourg.
Clause 19 imposes a new requirement on government Ministers when introducing legislation. In future, they will have to make a statement either that the provisions of the legislation are compatible with the convention or that they cannot make such a statement but nevertheless wish Parliament to proceed to consider the Bill. Ministers will obviously want to make a positive statement whenever possible. That requirement should therefore have a significant impact on the scrutiny of draft legislation within government. Where such a statement cannot be made, parliamentary scrutiny of the Bill would be intense.
Lastly, the Bill does not provide for the establishment of a human rights commission. I appreciate that this will cause disappointment to some. It is suggested that a commission would have a useful role to play in promoting human rights and advising individuals how to proceed if they believe their rights have been infringed. Although we have given this proposal much thought, we have concluded that a human rights commission is not central to our main task today, which is to incorporate the convention as promised in our election manifesto. There are questions to be resolved about the relationship of a new commission with other bodies in the human rights field; for example, the Equal Opportunities Commission and the Commission for Racial Equality. Would a human rights commission take over their responsibilities, or act in partnership with them, or be an independent body independent of them? We would also want to be sure that the potential benefits of a human rights commission were sufficient to justify establishing and funding for a new non-governmental organisation. We do not rule out a human rights commission in future, but our judgment is that it would be premature to provide for one now.
We have, however, given very positive thought to the possibility of a parliamentary committee on human rights. This is not in the Bill itself because it would not require legislation to establish and because it would in any case be the responsibility of Parliament rather than the Government. But we are attracted to the idea of a parliamentary committee on human rights, whether a separate committee of each House or a joint committee of both Houses. It would be a natural focus for the increased interest in human rights issues which Parliament will inevitably take when we have brought rights home. It could, for example, not only keep the protection of human rights under review, but could also be in the forefront of public education and consultation on human rights. It could receive written submissions and hold public hearings at a number of locations across the country. It could be in the van of the promotion of a human rights culture across the country.
I have tried to explain why the Government want to bring rights home and how we propose to do it. This Bill represents a major plank in our programme for constitutional change and invigoration. I have for many years been downcast by the want of protection for human rights in the United Kingdom. In a democracy it is right that the majority should govern. But that is precisely why it is also right that the human rights of individuals and minorities should be protected by law.
I am convinced that incorporation of the European convention into our domestic law will deliver a modern reconciliation of the inevitable tension between the democratic right of the majority to exercise political power and the democratic need of individuals and minorities to have their human rights secured. I commend this Bill to the House and look forward to the whole of our debate today.
Lord Kingsland: My Lords, I congratulate the noble and learned Lord the Lord Chancellor on furnishing us in his Bill with so many ingenious solutions to what seemed to be a range of intractable problems. I join him in congratulating the parliamentary draftsmen; it is a masterly exhibition of their art.
Her Majesty's loyal Opposition will not be voting against the Bill on Second Reading. Irrespective of the success or failure of our amendments thereafter, we will not vote against the Bill on Third Reading. As the Bill was foreshadowed in the manifesto, we are bound by the Salisbury Convention.
If the Bill becomes law it will be a defining moment in the life of our constitution. Perhaps the only other examples this century of such defining moments were the passage of the Parliament Acts of 1911 and 1949. As your Lordships are acutely aware, they had a dramatic effect on the balance of power between your Lordships' House and another place.
If this Bill reaches the statute book it will have an equally defining influence on the balance of power between the legislature and the judiciary. Whatever the inherent merits of its contents, I hope that your
I am very proud of the fact that a Conservative predecessor of the noble and learned Lord--Sir David Maxwell Fyfe, as he then was, and subsequently Lord Kilmuir--had a greater influence on the shape of the convention than probably any other British politician. Indeed, were it not for the support which Mr. Winston Churchill, as he then was, gave to the terms of the convention, Mr. Attlee might never have got it through his Cabinet, opposed as it was so profoundly by the then Lord Chancellor, Lord Jowitt. Therefore, on behalf of my party, I make no apologies for what is contained in that convention; we support its terms wholeheartedly.
I shall not speak at great length on this matter. I know that your Lordships are anxious to hear the noble Lord, Lord Lester, whose determination and imagination have done more to see the Bill appear in this House today than any other single person. I am also delighted to see here present the noble and learned Lord, Lord Scarman, with whom I first discussed the terms of such incorporation in the elegant dining room of a fine sailing club in Cowes more than a decade ago.
There are many obvious reasons for wanting incorporation. Many people believe it hypocritical that we send our citizens to Strasbourg to obtain rights to which they are not entitled at home. We know that the convention is judge-driven and we often find that the judges in the court in Strasbourg--brilliant and well-meaning lawyers though they are--lack an understanding of our constitutional ways which are, after all, unique.
Furthermore, the number of countries which have become part of the convention has expanded rapidly in recent years. Often the senior judges from those countries who will sit in Strasbourg have little experience of the jurisprudence of a free society. Until recently the jurisprudence in their countries has frequently been rubber stamping an order of the local commissar. The man behind the guichet was the man who counted. Therefore, in that context, putting the interpretation of the convention in the hands of our own judges has its attractions.
It is also a fact that, for a long time, where there has been ambiguity about a domestic statute and where one acceptable interpretation would be in accordance with the convention, our judges have given our statutes that interpretation. Therefore, to some degree the process of incorporation is already occurring.
The noble and learned Lord was presented with two possible options for incorporation. For shorthand, I shall use the terms "Canadian" and "New Zealand" options, although the principles behind them rather than their details are what matter to me.
In some respects, I suppose, the option which conformed more closely to our constitutional traditions was the Canadian option because it fitted in perfectly with our great constitutional principle that no parliament can bind its successor. As your Lordships are aware, that means that, if the terms of a subsequent statute conflict with the terms of a previous statute, the terms of that subsequent statute prevail and the conflicting terms of the previous statute are impliedly repealed. Therefore, it would follow that if the convention were incorporated and the terms of the convention conflicted with the terms of the previous statute, the terms of that statute would be repealed.
It would fit in with our constitutional principles and it would also have two other great advantages. The first would be legal certainty. The matter would be decided there and then by the judges; and the decision would be backed by remedies for the successful litigant.
What is the difficulty? The difficulty is clear from even a cursory glance at the kind of law which the convention makes--because its terms are very general. If the terms of the convention could repeal previous statutes, what previous statute would be immune from its terms? It would create a mass of uncertainty throughout our judicial system. Almost no statute would be safe from the possibility of being struck down by a judge interpreting the convention.
What is the other option which he had at his disposal? It is the New Zealand option, and that option reflects the opposite principle. It says that where there is a conflict between the convention and a previous statute, and if that conflict is clear, the terms of the previous statute prevail. It is then up to the legislature--in that case, the New Zealand legislature--to make up its mind whether to change the law in conformity with the New Zealand Bill of Rights. I suspect that that summary will not find favour with the noble and learned Lord, Lord Cooke, who is to speak later this afternoon but it is the best that I can do in the circumstances.
The noble and learned Lord the Lord Chancellor has also in terms rejected that solution. I suggest that he has gone for a hybrid of the two: he is not striking down the previous statute but is giving judges the power to make a declaration of incompatibility. He then gives Parliament the option to legislate not by full primary statute but by order in council.
I believe that that solution is constitutionally unacceptable for two reasons which I shall try to explain as briefly as I can. In the Bill, the courts of this country are not bound by the decisions of the court in Strasbourg. It is to have a persuasive but not obligatory effect. When a court in this country makes a declaration of incompatibility, it might be making a declaration which is not an accurate photograph of the law of the convention. Indeed, that option is expressly incorporated in the Bill. To the extent that a declaration of incompatibility does not reflect the true construction of the jurisprudence of the convention, the judges will be
What is the doctrine of the separation of powers in our country? It is that judges do not interfere with the parliamentary process on the one hand and Parliament does not interfere with the judicial process on the other. That principle has stood us in enormously good stead, certainly since the Glorious Revolution more than 300 years ago. To the extent that the judges are not reflecting the jurisprudence of the convention but stating their own view about what the convention says, they are in breach of that doctrine. They are initiating new legislation.
Of course, it is true that Parliament does not have to go ahead and pass that legislation. Indeed, what I fear may flow from a judicial decision of incompatibility is a long and bitter debate in Parliament about whether the judges were right and even if they were right, whether it is right to legislate.
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