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Lord Lester of Herne Hill: My Lords, I am obliged to the noble Lord for giving way. Whatever the general public may think, I am totally mystified by what he said. Is the noble Lord's position that the courts of the United Kingdom should have the power to strike down Acts of the sovereign Westminster Parliament in the same way as courts will have the necessary power to make sure that the subordinate power in Scotland or Northern Ireland, if there were one, acts within its powers? Or is the noble Lord's position that there should be uniformity in the opposite sense; namely, that there should be no power to curtail Scottish legislation by a Scottish parliament that breaches the convention?

It seems to me that it has to be one or the other. As I understand the position, under this Bill the sovereignty of Parliament is being preserved and a subordinate legislator is quite rightly being brought within the framework of the convention so as not to act ultra vires. However, I am puzzled by the noble Lord's position. I do not understand for which of those propositions he is arguing.

Lord Henley: My Lords, I am not arguing for either of those propositions at the moment. I am pointing out that there is a discrepancy in the treatment of the two parliaments. The Government themselves will answer in due course. It may be that they will say that the treatment of Scotland should be different because, as the noble Lord, Lord Lester, puts it, that is the subordinate parliament compared to the imperial Parliament in which we are sitting.

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If we turn to paragraph 2.13 of the White Paper, we will see that it deals with that point. However, it is beholden on the Government to explain why they believe there should be the difference and why it is unlikely that there could be a conflict between the treatment of the two. I welcome the Government's response to that point.

The third item with which I wish to deal--again, I hope to deal with it briefly because it was dealt with at considerable length by a number of noble Lords--is the effect on the press. I saw the article written by my noble friend Lord Wakeham and I am sorry that he is unable to be here today for the reasons given by the noble Lord, Lord Tordoff. I listened to the noble Lord, Lord Lester, dealing with the points met by my noble friend Lord Wakeham. Other noble Lords referred to them at later stages in the debate and this is again something that we must address in considerable detail at the Committee stage.

My noble friend makes it clear in his article that he is opposed to a privacy law. As I understand it, the Prime Minister is also opposed to a privacy law. My noble friend has a concern that this measure could let in a privacy law by the back door. That is something that we must deal with in some detail at a later stage, particularly if, as the noble Lord, Lord Tordoff, put it, Articles 8 and 10 are, on the face of it, incompatible.

I turn to the question of the fast-track procedures. I am grateful for the acceptance by the noble and learned Lord the Lord Chancellor that this is not a power to be taken lightly. I agree with that fully. On many occasions in the past I have been on the receiving end of the strictures of my noble kinsman, Lord Russell--I do not see him in his place--when, on moving legislation through this House, I have attempted to take powers that he considered to be bearing on the Henry VIII side of things. I know that my noble kinsman takes a fairly strong view of the use of delegated legislation of that sort. But he accepts that this occasion is one that is suitable for the use of the Henry VIII clause, just as he accepts that the same could be said of the European Communities Act 1972.

I believe that is an issue that we must address carefully. We must also address the fact that, under the fast-track procedure, much has been made of the fact that the Minister himself will have discretion as to whether or not it is used. When one looks at the words in paragraph 2.10 of the White Paper it makes it clear that,


    "it will almost certainly prompt the Government and Parliament to change the law".
In other words, the Minister's discretion is bound very tightly. Between now and Committee stage the Delegated Powers Scrutiny Committee will examine what is proposed and will report to the House so that the House has the benefit of the views of that committee.

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Again, much has been made of the dangers of politicising the judiciary--I have much sympathy with that view. I believe it was the noble and learned Lord the Lord Chancellor himself who said in an article in 1996 entitled "Judges and Decision Makers", that,


    "the political and legal choices which import as consideration of fundamental rights protection are among the most difficult and most subjective, and offer immense scope for political and philosophical disagreement".
He also said--my noble friend Lord Waddington referred to this--


    "Incorporation will involve a very significant transfer of power to the Judges".

There are dangers here and they are dangers that cannot merely be addressed by the Law Lords saying that they do not see them. Many others see the dangers and that is something which we must come back to with considerable care when the Bill reaches the Committee stage.

As I said, we have had a long debate on what is a slim Bill but it is a debate that will continue for some time to come as we move through the Committee and Report stages. I shall not speak any longer tonight because it is important that we now hear the noble Lord, Lord Williams of Mostyn, respond for the Government. I can assure him that he will have a busy time in the coming weeks and months as this Bill proceeds through this House before we send it on to the Commons for its consideration.

8.59 p.m.

The Parliamentary Under-Secretary of State, Home Office (Lord Williams of Mostyn): My Lords, before the noble Lord sits down, I wonder whether I might understand clearly in my own mind what the policy of the Conservative Opposition is. The question is of the simplest kind. Do they support or resist the principle of incorporation of the convention into United Kingdom law?

Lord Henley: My Lords, it is not for the Opposition to respond to questions. It is for the Government to respond. We have made it very clear that we oppose the Bill. It may be that there are other ways that the noble Lord could go about it. But we are debating this Bill. It is this Bill which both my noble friend Lord Kingsland and myself have made clear we are strong in opposing, though we have also made clear that, abiding by the convention, we have no intention of opposing its Second Reading as it proceeds through the House.

Lord Williams of Mostyn: My Lords, the cat has just got out of the bag. I thought it might.

In opening the debate the noble Lord, Lord Kingsland--I say, as he knows, without any sense of patronising--provided your Lordships with a thoughtful speech. He said, "If passed, this will be a defining moment in the life of our constitution". I profoundly agree. He said that he supports the convention wholeheartedly. I profoundly agree. That is why the question which I posed to the noble Lord, Lord Henley, is one of central public importance to everyone in this country who is interested in these issues. That interest

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is not limited to the chattering classes; it is not limited to lawyers and academics; it is something of interest to a very large section of our population because it will affect their lives profoundly in the next five to 10 years.

Perhaps I may deal with an obvious question because the answer is in the words read out by the noble Lord, Lord Henley. Scotland is different because it would be ultra vires for the Scottish Parliament to pass laws incompatible with the convention. Therefore, because those are the constitutional arrangements which we have arrived at, the Scottish judges will have the powers to act as the noble Lord, Lord Henley, indicated. The United Kingdom Parliament remains sovereign. We have therefore opted, I believe prudently, rightly and in accordance with United Kingdom tradition, to limit the power of the judges to the declaration of incompatibility. It really is as simple as that.

Many questions have been put forward. It is suggested that perhaps this is an unconscious and unknowing conspiracy by the judiciary to take over power from the legislature. Nothing could be further from the truth. A number of noble Lords who have spoken have said that the judges will have powers. Indeed, yes: which judges, what powers and exercised where, is the whole point. But none of those questions raised by noble Lords begins to address the issue.

Perhaps I may give a recent example. It was not long ago in your Lordships' House that I introduced a short and modest Bill to deal with the consequences of the judgment of the European Court in the case of Chahal. If I remember right, that legislation was being drafted by our predecessors and it was inevitably necessary to bring it in as a direct consequence of two things: first, the ruling of the European Court; and secondly, the convention regularly accepted by all governments of all shades of opinion that when Strasbourg speaks, the United Kingdom follows. That is what we find objectionable. We wish to recover control over our own affairs in a British way.

This is a remarkable country. What a country it is. What a country it can become if we have the internal self confidence to say that there are many things that we do well here. As the noble and learned Lord the Lord Chancellor indicated earlier, this will be a two-way street. We are not to be subject simply to the donations of jurisprudence and legal construction in Strasbourg. The noble Lord, Lord Beloff, asked whether there had been a commission of inquiry about various arrangements in continental Europe. There was not a commission of inquiry but the Home Secretary directed me to go to one or two countries in Europe to see how they do things there. The one constant theme was that they wished us to be able to provide our jurisprudence, which they regard with great respect, knowing it to be infinitely subtle--in some ways much more subtle than continental jurisprudence.

I pay tribute to a notable maiden speech. I shall say no more than that because I know that every one of your Lordships who heard it is of the same view. Perhaps I may make one small modest note. When I was a very junior law student I never thought that I would have the

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infinite pleasure of being able to listen to that great man, the noble and learned Lord, Lord Scarman, addressing us as he did.

This has been a good debate. Everyone has risen to the occasion, although we have had different views. My feeling is that the approach represented by the noble Lord, Lord Kingsland, is very close indeed to the approach of the Government as set out by the noble and learned Lord the Lord Chancellor in opening the debate. Our courts will have the opportunity to develop our jurisprudence. That is not, as the Lord Chancellor pointed out, simply, "You will be able to get your rights enforced quickly and cheaply because you will not have to make the journey to Strasbourg". It is much more important than that. Every public authority will know that its behaviour, its structures, its conclusions and its executive actions will be subject to this culture.

It is exactly the same as what necessarily occurred following the introduction of, for example, race relations legislation and equal opportunities legislation. Every significant body, public or private, thereafter had to ask itself, with great seriousness and concern, "Have we equipped ourselves to meet our legal obligations?" That has caused, as the noble Baroness, Lady Amos, said, a transformation in certain areas of human rights. The same is likely to follow when this Bill becomes law.

Perhaps I may respond to some specific questions. Article 13 was mentioned by a number of your Lordships. Our view is, quite unambiguously, that Article 13 is met by the passage of the Bill. The answer to the question is as plain and simple as that.

A number of noble Lords asked questions about funding. In particular, the noble and learned Lord, Lord Ackner, returned to the question he put to me a little while ago. Perhaps it will be helpful if I make plain, with the authority of the Lord Chancellor, what the funding position will be. The Lord Chancellor is to deliver new proposals on legal aid. As is well known, he began the debate and gave an account of his thinking in his keynote speech in Cardiff recently. The proposals that he has to deliver on legal aid will take full account of the need to ensure that people who have strong cases to bring under the Bill should continue to be able to do so. My noble and learned friend further indicated that he would give serious consideration to the proposal made in Sir Peter Middleton's recent report that there should be a special fund to support the carrying forward of public interest cases because there might be appropriate cases which would not pass the legal aid merit test and there might be occasions where the persons concerned did not meet the legal aid financial test--


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