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Lord Lester of Herne Hill: My Lords, I thank the noble and learned Lord for giving way. Perhaps he will explain a point which puzzles me when I hear the argument that he has made. What on earth is wrong with our British judges which disqualifies them from performing the role when the judges of almost every other Commonwealth and European country perform the role of interpreting the broad language of constitutional guarantees of human rights as required by the Bill? Why are our judges uniquely disqualified? What is the threat to them which does not apply to the judges of, for example, India, Canada, New Zealand or the rest of the Commonwealth?

Lord Mayhew of Twysden: My Lords, I have a good passage which I was reserving for the end of my speech which deals with that, but I shall gladly promote it. Of course, the argument is not all one way--all black or all white--and in some circumstances when one is setting up a newly-independent country it makes every sense to have a provision such as that mentioned by the noble Lord. However, I believe that there is no country in which the judiciary has been so successfully and carefully protected from "political involvement". Furthermore, there is no country whose judges are more widely admired for their political impartiality. Therefore, one must achieve a balance between risking that and the advantages that will be gained. I agree with my noble friend Lord Waddington when he asked what are the lacunae in the protection of our people which are said to justify the Bill.

It is necessary in a newly independent country, set up with a constitution no doubt drafted by the noble Lord, Lord Lester, with his customary skill, but it is not proven to me that the risk of exposing the judges to the taint of political partiality is justified by the advantages which will be gained. Article 11 dealing with freedom of association, for example, will inevitably bring the judges into the whole issue of the closed shop and collective bargaining. Inevitably Article 2, the right to life, will in time bring the judges into expressing views and making choices about the compatibility of our statutory law on abortion. The point is that they will have to make choices which are political.

Each of the articles requires a balance to be established between one public interest and another which conflicts with it. That is different from the point made by the noble and learned Lord, Lord Scarman. It is different from the choices they have to make when they develop the common law. It is different from the choices they make when they exercise the judge-made and judge-invented jurisdiction of judicial review. It is right that many of the cases subject to judicial review are of political interest, but the choices are not political in character. The choices which they will have to make by reason of the necessarily broad brush language of the convention will unarguably be political in character.

The high watermark of the argument will be the question: why should not British judges deal with these matters? It is a strong issue about which one must think

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carefully. It is said that it is better to let our judges play their part in shaping the convention's development. I acknowledge that argument, but I suggest that it is not strong enough to warrant the damage which is inherent to the reputation of our judiciary. As has already been mentioned, sooner or later people will suspect that a judge has been appointed not by reason of his judicial capabilities but because in the eye of the government of the day he is sound on abortion or the closed shop. Those thoughts need to be considered. They are serious and I am grateful to have had the opportunity to utter them.

It is said that incorporation will concentrate the minds of Ministers and officials, but in my experience that is already the case. For nine years I was a Law Officer of the Crown and had that privilege. I must say that I thought that it was a bourn from which no political traveller returned, but I was a fortunate exception. Throughout that time, we all always made it a point of honour to insist that our legislation and choices of executive action were made by reference to and in respect of our international obligations certainly to the Convention on Human Rights. I do not believe that our record as a country is that bad, considering that at an early stage we gave the right of individual petition and considering the plague of terrorism with which we have had to contend for more than 25 years, coping with people who have no respect for any rights of anybody whatever.

It is said that it takes a long time to get to Strasbourg but that that could be done much more quickly were that court and commission to reform their practices. I hope to hear from the noble Lord who is to wind up what are the Government's proposals in that regard. The previous government had some proposals.

Of course, this is not an easy matter. However, I have very grave anxieties about the dangers, which I have tried to express. After listening with deep admiration to speeches from all sides today, I remain of the view that the balance of safety comes down firmly against bringing those, to my mind, dangerous duties home to the judges.

5.50 p.m.

Lord Kirkhill: My Lords, I shall say a few words to welcome this Bill. I believe that even the most extreme ultra-nationalist or ultimate anti-European should also welcome the Bill. For this time, we do not give away any of our national sovereign powers to European institutions. Instead, we grant powers to the British courts which the European Commission and the European Court of Human Rights in Strasbourg already have.

It is a sensible measure and, as has been said by a number of speakers, we might have done it earlier: in 1951 when the United Kingdom ratified the convention; or in 1966 when we recognised the right to individual petition to the Strasbourg organs; or, indeed, some 10 years ago when the deficiencies of the present system became abundantly clear. It might have saved our country some awkward and unnecessary condemnations by the human rights court; and it might have saved the

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applicants from taking the long and hard road to Strasbourg, as my right honourable friend the Home Secretary expressed the matter recently. In particular, it might have saved the litigants the expense which taking that road to Strasbourg inevitably involves. Indeed, in my view, we must always consider the interests of those who rightly or wrongly seek redress for decisions which they consider to be unjust.

As has already been said, the road to Strasbourg can be long, hard and expensive for applicants. But so it is also for the Government. As the excellent Command Paper by the Home Office states, once all domestic remedies have been exhausted, it takes some five years for an application to go before the European Court and it costs an average of £30,000 per application. Therefore, we shall save that money if British judges are applying the convention's provisions and if litigants feel that it is no longer necessary to go to Strasbourg. Therefore, the Bill can be welcomed by those who feel that governments are always spending more and are never sufficiently cutting expenditure.

The Human Rights Bill will now subsume into the law of the land the provisions of the human rights convention by which we are bound in any event since its ratification in 1951. Although we were the first member country of the Council of Europe to ratify the convention, we are among the last to make sure that our national judges can apply it directly.

Other countries have solved that problem either in the way that we are now about to do or because their constitution may provide for the supremacy of international law over national law or, indeed, by other means. For example, Dutch and French judges and some judges from other member states of the council have been able to settle cases in a manner in which our courts have had to leave, until now, to the Strasbourg organs.

In addition, the judiciary in our country should have ample reason to be satisfied with the Bill. Becoming acquainted with the convention itself will not be a heavy assignment, but of course one must study also the doctrine around it and the jurisprudence not only of the commission and court in Strasbourg but also that of national courts in other member states of the Council of Europe. Thus it is justified to provide some kind of training for judges, magistrates and tribunal members who may have to handle aspects of the convention.

We in Parliament should also be pleased. As the noble and learned Lord the Lord Chancellor said in his opening remarks, the Bill does not make us subordinate to the courts which cannot strike out our Acts by declaring them null and void when it is considered that they violate the convention. As we have heard, the courts will have to limit themselves to a declaration of incompatibility. Therefore, I submit that it is clear that those who are concerned about the prerogatives of Westminster should perhaps not exaggerate their fears in that regard.

Finally, all those who take to heart the protection of human rights in this country should greatly welcome the Bill. I hope that they do. After all, the protection of human rights may be considered to be almost a British invention, as is the case in relation to international

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protection, going back to the Atlantic Charter when Britain and the United States joined hands. In addition, we took a very active part in the elaboration of the European Court itself. Our influence at that time was such that General de Gaulle did not want France to become a party to the then treaty because he considered it to be too Anglo-Saxon in concept.

Since 1951, a number of additional protocols have been added to the convention, each one of which contains a number of additional substantial provisions. This country ratified the first protocol but there are three others outstanding. In that regard, I should like to encourage the Government to proceed with the ratification of Protocol 7, as I believe is their declared intention.

Therefore, there are some additional protocols to the convention which aim to widen its scope by adding new rights and freedoms to those it already protects. Moreover, there are also a number of protocols to modify the convention's procedures. The last such protocol, Protocol 11, will change profoundly its structures. That protocol has now been ratified by 38 of the 40 contracting parties. The two countries which have not ratified are Russia and Croatia. The effect of the implementation of the protocol will be to institute a full-time Court of Human Rights in Strasbourg, thus doing away with the present part-time commission and court.

Also, there will be one judge appointed from each contracting party. An ad hoc committee, which I shall chair, of the Legal Committee of the Parliamentary Assembly of the Council of Europe, has been formed to interview, at the last count, 114 aspiring judges. To that end, we shall meet for two periods in Paris lasting for many days on each occasion.

The point which I wish to emphasise to your Lordships is that that has never been done before. The Parliamentary Assembly merely ratified, as it were on the nod, whichever particular judge was thrown to it. The Parliamentary Assembly is therefore taking very seriously its responsibilities in regard to the appointment of the new judges to the new full-time court. Of course, those judges will have to take up permanent residence in Strasbourg, which is not the case at present.

Therefore, I believe that at Council of Europe level, there is an attempt to modify in the light of the continuing trends. I welcome the Bill and hope that it will have a very fair wind in your Lordships' House.

6 p.m.

Lord McCluskey: My Lords, one feature of most charters on human rights is that minorities are allowed to be heard. I am rather glad about that because during the course of this debate I am beginning to find myself in quite a small minority. Like the noble Lord, Lord Waddington and the noble and learned Lord, Lord Mayhew, I cannot extend a warm welcome to the Bill, despite the fact that I have been practising the law for 49 years and have been a judge in Scotland for almost 13. Perhaps I may make one little point to show that there are two sides to the argument. The United States

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introduced a Bill of Rights 200 years ago. The most celebrated case in this century in the USA--where there is direct application of the constitution--was the Gideon case. From the time of his conviction to the overturning of it on the grounds of contravention of his human rights, it took 37 years. So direct access to a convention or a charter does not necessarily mean that one moves swiftly. The Dred Scott case of last century was overturned rather more swiftly, but in that case it took a civil war to do so. Therefore, direct access to Bills of Rights and the rights contained in them is not necessarily a guarantee.

My opposition to incorporation into our domestic law of the convention is of long standing. In 1986 I had the honour and privilege of being invited by the BBC to deliver the Reith Lectures of that year. They were later published under the compendious title of, "Law, Justice and Democracy". Lord Elwyn-Jones asked at the time, "Is that all?". Indeed, that was all. The theme was that, by enacting a Bill of Rights, we would be doing something which was quite unnecessary, having regard to our traditions and our success in relation to delivering human rights.

However, my opposition is not based on a distaste for human rights; indeed, I am a strong defender of them. I am the vice-chairman of the Human Rights Institute of the International Bar Association. I am strongly in favour of human civil and political rights, especially if they are defined with clarity and precision. I echo the point made by the noble Lord, Lord Waddington, that when one comes to what he described as vague and imprecise rights, one is doing something quite different from conferring a precise, well-defined, achievable and realisable right.

The present Bill does a great deal to achieve a remarkable and reasonable compromise. However, I still believe that it offends against points of fundamental principle. By incorporating into our domestic law vague, imprecise and high sounding statements of legal rights, we hand what is truly legislative power away from a democratic and accountable Parliament to an appointed, unelected and unaccountable judiciary. No doubt the latter will be composed of distinguished men--indeed, that applies to some, many or most of them--but they will be successful lawyers with very limited democratic credentials and experience.

The White Paper is perfectly explicit about what is happening in that regard. I shall quote from two passages in the document. Paragraph 2.5 says:


    "The Convention is often described as a 'living instrument' because it is interpreted by the European Court in the light of present day conditions and therefore reflects changing social attitudes and the changes in the circumstances of society. In future our judges will be able to contribute to this dynamic and evolving interpretation of the Convention. In particular, our courts will be required to balance the protection of individuals' fundamental rights against the demands of the general interest of the community".
What kind of a job is that to give to judges? That is a job which ought to be left to democratically accountable Members of Parliament.

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In paragraph 2.8, the White Paper also says:


    "This 'rule of construction' is to apply to past as well as to future legislation ... the courts will not be bound by previous interpretations. They will be able to build a new body of case law, taking into account the Convention rights".
We should not run away from the fact that this is empowering judicial legislation. Of course the judges will not possess quite the same power here as they do in the United States or in other places, but the effect will be exactly the same. Elsewhere in the White Paper it is made abundantly plain that in almost every case--and I know of no exception--Parliament will at once move to bring the law into line with what judges say the convention says it is. In fact, Parliament has no option if the Strasbourg Court so decides. The certain aim of British judges will be to interpret the convention in the way that they think the Strasbourg Court will. Otherwise, they will be overturned in Strasbourg.

I believe that such matters are most important. In the Reith Lectures I wrote the following:


    "A constitutional Bill of rights ... is inevitably a charter of enduring super-rights, rights written in delphic words but in indelible ink on an opaque surface. It turns judges into legislators and gives them a finality which our whole tradition has hitherto professed to withhold from them. It makes the mistake of dressing up policy choices as if they were legal choices. It asks those whose job it is to know and apply the law to create and reform the law. It requires those whose skill it is to know what the law is to decide what the law should be".
Our tradition is to legislate in terms which are as precise and exact as the English language and human foresight can achieve. I know that the noble Lord, Lord Renton, chaired a distinguished committee which looked at the form of our legislation and I believe that it favoured the precise definition of our right. However, charters of human rights, especially when they must reflect the competing interests and different perspectives of different countries--as in the European situation, which encompasses different groups, different traditions, different religious and moral perspectives and also different nation states--come to be written in broad, imprecise and ill-defined language.

I believe that I am merely echoing what has been said elsewhere, but such charters are inevitably full of vague expressions, like the American one, "due process", which has been productive of thousands--indeed, tens of thousands--of decisions which have enacted judicial legislation. We also have in the present case words like "promptly", "a reasonable time", "in the interests of justice" and the one that has been mentioned by several noble Lords which appears in Articles 8, 9, 10 and 11; namely, "necessary in a democratic society, in the interests of national security and public safety", or even, "the economic well-being of the country". So judges decide whether a derogation from the stated right is in the interests of the economic well-being of this country. In my judgment that is not a matter for judges. When one puts Delphic words into charters, one then needs to ask someone what those words mean. It is like going to the Oracle to ask what it means. The high priest will answer and will tell you what it means. However, unless one is a fool, one realises that it is the judge--or the high priest--who is telling you what it means. Indeed, the Oracle is relatively silent.

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Our courts will soon have to decide, here or perhaps in Strasbourg, whether homosexual men can marry-- I believe that question has already been before the European Court on two occasions--and whether members of an allegedly extremist party, like the Communist Party, can join the government service or be excluded from it. The Court has already addressed on several occasions the grant or refusal of legal aid and, therefore, our legal aid system is subject to the charter. The court has already addressed on more than one occasion the question as to whether schoolchildren can be strapped, and the legality of abortion is waiting in the wings to be settled by the courts, as in the United States, instead of by the elected Parliament.

I shall quote from de Tocqueville in his observation 150 years ago. He said of the US Supreme Court that,


    "scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question".
In 1955 Daniel Boorstin said:


    "The Supreme Court has become the American political conscience, a kind of secular papacy, a new search in every generation for what the more large-minded and more foresighted of the Founders might have meant if they were alive".
That was in 1955. Since then, we have had two terms of Reagan, one term of Bush and of course we had Nixon. Each of those presidents said that they were going to change the character of the court and that they must have people in it of the right disposition of mind. Nixon promised judges who would be different. At the Republican Party convention of 1980 a pledge was given to work for the appointment of judges who respected innocent human life and were in favour of law and order. That meant that they had to be against abortion and in favour of capital punishment. Therefore judges were chosen with a view to obtaining what was in the view of that party the right kind of results.

I have the greatest possible respect for British judges; many of them are my best friends. However, that does not lead me to give them tasks which they are not well qualified to perform. Inevitably, they will become politicised. I have one further quotation from the excellent work which I am afraid is no longer in print, Law, Justice and Democracy, which states:


    "A Bill of rights embodies semi-permanent choices between the conflicting interests of citizens. And to present such choices as if they are the gratuitous enlargement of the human rights of all is to misuse language. Rights are not to be regarded as if they were roses without thorns".
That still encapsulates the view which I have reached.

I wish to draw attention to the extremely important matter of the hidden cost of this legislation. In future no lawyer will be able to advise a client on any matter which might involve a public authority without studying not just the European jurisprudence--as he will read the Strasbourg report as I have done--but also American case law, Canadian case law and even Indian case law and Australian and New Zealand case law. Each lawyer will have to instruct his own mind before he can advise his client. We judges know almost nothing of European law. As regards Clause 2 of the Bill, I do not even know how to gain access to some documents in relation to decisions of the Committee of Ministers. As I say, there is, therefore, a considerable hidden cost in this Bill.

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Further, we in Scotland are plagued--I believe it is even worse in England--by the party litigant. I refer to the man who is consumed with a passion for his own case. This kind of charter provides him with an enormous opportunity to come to court and say, "I have a fundamental human right and I want to vindicate it". As a senator in Canada said of the Canadian charter of rights, it provides,


    "a field day for crackpots, a pain in the neck for judges and a gold mine for lawyers".
That is the view that I take.

6.13 p.m.

Lord Beloff: My Lords, the noble and learned Lord who has just spoken will not be surprised to find that I, as an admirer of his writings for a long time, join him in what appears, alas, to be a minority. My view of the Bill before us can be summed up in three words: silly, unnecessary and dangerous. My reasons are the following. It departs altogether from what has been the normal practice of Parliament through the ages. What does Parliament do? It is told that there is something wrong in the body politic; that there is some mischief which requires legislation to correct. That is Parliament's business. So surely the authors of a Bill which intends to deal with human rights should have begun by saying, "There is in the United Kingdom a disastrous deficiency in the sphere of human rights". No such claim has been made or illustrated by any of the noble Lords who have spoken in favour of this Bill.

Further, they should have stated that this lacuna is to be remedied by the incorporation of the European convention. But then, surely, the next point that should have been made would have been to provide illustrations of countries which have incorporated the convention and where it can be demonstrated that the protection of human rights is much greater than it is in this country. However, no such evidence has been produced. Would it not have been proper--the new Government are keen on pre-legislative inquiries--to send an inquiry team to a number of European countries which I shall not specify where human rights might be thought, even with the incorporation, to be in much less good shape than they are in this country? Therefore it seems to me that no case has yet been made out for the Bill on the lines which normal legislation would require of a government.

There have been various other interesting gaps in the considerations that we have been offered. Much has been made of the fact that the authors of the text of this convention were largely British. That is true but what does that show? It shows that at the end of the war and the end of the occupation of Europe by Nazi and Fascist tyranny people looked to Britain as a country in which human rights had been preserved and where they now sought to find an instrument which might prevent those horrors recurring. Unlike many of your Lordships, I was around at that time. In other words, it was never thought that the convention should be applied to democratic countries, least of all the United Kingdom. It was thought that this was to be something which would be

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held up as an example to the newly liberated countries as to the kind of apparatus they would require to prevent these horrors recurring.


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