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Lord Campbell of Alloway: What are these other nebulous, hypothetical remedies? Can the noble and learned Lord let us into his confidence and explain what is in the back of his mind on this, if anything?
Lord Renton: Before the noble and learned Lord replies, can he explain to the Committee why Clause 8(1) confines the matter to what is done by a public authority, bearing in mind that there is no definition of "public authority" in the Bill?
The Lord Chancellor: "Acts of public authorities" in respect of which our courts may grant remedies if they deny convention rights and therefore act unlawfully are amply defined in Clause 6 of the Bill. The Bill is aimed at public authorities and unlawful acts by public authorities acting contrary to convention rights. That is not in the back of my mind; it is in the front of my mind. Clause 8(1) refers to remedies in respect of acts of public authorities because that is what the Bill is about. I do not think that it would be profitable for me to take up the time of the Committee in spelling out every remedy or relief available in English law, which is one of the most sophisticated and developed systems of law in the world.
Lord Ackner: Before my noble and learned friend leaves Clause 8(1), will he have any objection--it may be that this needs further consideration--to adding at the end of Clause 8(1) the simple words: "to give full and effective protection to convention rights"?
The Lord Chancellor: If the noble and learned Lord puts down an amendment to that effect on Report, we shall consider it. However, my immediate reaction is that that would be to accept a superfluity. Clause 8(1)
The noble and learned Lord, Lord Simon of Glaisdale, has been very patient in waiting for me to turn to his amendment, Amendment No. 116. This would amend the Bill's Long Title so as to state that the Bill was to give "domestic" effect to rights and freedoms guaranteed under the convention, not that it was to give "further" effect. I believe that the Long Title to the Bill is admirably clear to a layman and to lawyers. The reason the Long Title uses the word "further" is that our courts already apply the convention in many different circumstances. For example--and the courts are well familiar with these examples--where a statute is capable of two interpretations, one consistent and one inconsistent with the convention, the courts will presume that Parliament intended to legislate in accordance with the convention. If the common law is uncertain, unclear or incomplete, the courts will rule wherever possible in a manner which conforms with the convention. That is English law today.
Lord Simon of Glaisdale: I am much obliged to my noble and learned friend for allowing me to intervene. Has not the Government's case to us been that the Bill is to give domestic effect to the convention rights? If that is so, why not say so?
The Lord Chancellor: Our law already gives domestic effect to the convention in two respects which I have listed. I shall list more in a moment if the noble and learned Lord will permit me. It is therefore accurate as a matter of the use of English language to say that this Bill gives further effect.
The domestic courts are already able to apply the convention in certain circumstances. Where a domestic statute is enacted to fulfil a convention obligation the courts will ordinarily assume that the statute was intended to be effective to that end. Where the courts have a statutory discretion to exercise they seek to act in a way that does not violate the convention. When the courts are called upon to decide what, in a given situation, public policy demands, they have regard to the United Kingdom's international obligations as a source of guidance. Where the proceedings concern directly effective European Union law, the courts will take the convention into account because that law includes human rights principles, including those guaranteed by the convention.
Every lawyer knows this. No one can conceivably think that we intend to enact anything other than an Act to give further effect within the United Kingdom to a convention which already has effect in our domestic law.
Between now and Report we shall reflect on everything that has been said by Members of the Committee in support of this group of amendments. I understand the arguments. I have listened to them with care and will read them in Hansard with equal care. I note the modesty of the noble Lord, Lord Lester, in yielding the field to the noble Lord, Lord Mishcon, and his willingness to support the noble Lord's amendment. However, that said, at present we are not persuaded that any advantage is to be gained from any of these amendments.
Lord Kingsland: The vast majority of the rights that are guaranteed by the European convention are already guaranteed by our own common law rules or by statute. Those common law rules or statutory rules are backed in our courts by an array of enforceable remedies. Let us suppose that a judge is presented with a situation whereby the substance of the common law or statute rule complies with the convention but the remedy available does not comply with the remedy that a citizen would gain under Article 13 if that citizen went to the court. What happens next? Under Clause 8(1) a court can grant any order within its jurisdiction. Is the noble and learned Lord saying that since Article 13 is automatically incorporated, although not on the face of the Bill, that judge is entitled to give effect to a remedy which is sanctioned by Article 13? Alternatively, is he saying that the judge is not so entitled? If the judge is not so entitled, is the judge then entitled to make a declaration of incompatibility with respect to remedies rather than the substance of the law and to ask for a fast-track solution from Parliament?
The Lord Chancellor: I find the noble Lord's late intervention in the debate somewhat difficult to follow. At present, I cannot conceive of any state of affairs in which an English court, having held an Act to be unlawful because of its infringement of a convention right, would under Clause 8(1), be disabled from giving an effective remedy. I believe that the English law is rich in remedies and I cannot conceive of a case in which English law under Clause 8(1) would be unable to provide an effective remedy.
However, during the earlier course of the debate I did not say that Article 13 was incorporated. The debate is about the fact that it is not incorporated. In reply to the noble Lord, Lord Lester, I said that in my view the English courts, in the examples which he offered, would be able to have regard to Article 13.
Earl Russell: I am the first layman to intervene in the debate and therefore I am a little astonished at my temerity. I am reminded of a 17th century heretic who said--and I hope that the Committee will forgive me
The argument is entirely about whether since it makes no difference it should not be incorporated, or whether since it makes no difference there is no objection to its incorporation. The noble and learned Lords, Lord Simon of Glaisdale, and the Lord Chancellor have put those two points with crystal clarity.
Between those two it is simply a temperamental argument of priority. I must confess that on those terms I prefer erring on the side of safety. But there is a further point to be made. The noble and learned Lord the Lord Chancellor said fairly that he cannot foresee any possible circumstances in which there would not be an effective remedy. I grant that this is an extremely well drafted Bill; indeed, it is possibly the best drafted Bill that I have seen before the House in nine years. But nothing is perfect. Acts of Parliament have woodwork and things come out of it often as much as two or three centuries after their drafting. If we cannot now foresee any specific respect in which the drafting of the Act is defective, that does not mean that there is no such defect, merely that among us in our collective wisdom we do not happen to have spotted it. That happens from time to time.
I wish to conclude with a remark once made in this Chamber by the noble Lord, Lord Rix, speaking on an amendment tabled by the noble Lord, Lord Campbell of Alloway, relating to a code of practice on disabilities. The noble Lord said, "I am not a lawyer, but this is a matter of belt and braces and that is something of which I do have some professional knowledge".
Lord Lester of Herne Hill: This will be a fascinating debate for lawyers to read in Hansard. I am not sure whether it will fascinate non-lawyers. Perhaps I may summarise the position that we seem to have reached because I doubt whether we are far apart.
The noble and learned Lord the Lord Chancellor agrees that under the Bill the courts are fully entitled to have regard to Article 13, even though it is not to be incorporated. He also agrees that the courts are obliged to have regard to the Strasbourg case-law on Article 13 to the extent that it is relevant. The issue which remains is whether, taking Amendment No. 6 as the best example, it is sensible for Clause 1(1) to allow the judges to look at Articles 16, 17 and 18 in construing the substantive articles of the convention, but not to look at Article 13.
I can think of several practical examples where in real cases it will help the courts to know that they can have regard to Article 13, even if it is not directly incorporated. Perhaps I may give two examples. First, the Turkish cases in which there is no proper post-mortem or police investigation into a suspicious murder. I am not suggesting that in practice such circumstances are likely to arise in this country, but in those cases the Strasbourg court stated that Article 6, which is to be incorporated into UK law, is not the right article. It stated that Article 13 is the right article and it is the one to which domestic courts should have regard.
Perhaps I may take an example closer to home, which is the case of Chahal. The noble Lord, Lord Williams of Mostyn, will be particularly familiar with the case because Parliament had to enact special legislation on immigration appeals to give effect to the European Court's judgment in Chahal. The vice was a breach of Article 13. That breach arose because there was no proper judicial procedure where a suspected terrorist was facing deportation to a country where he would face torture or inhuman or degrading treatment or punishment. Therefore, we had to spend time enacting a new Bill.
If there were no clear inconsistency in the primary legislation and the courts could have regard to Article 13 when construing their remedial powers under Clause 8 of the Bill that would greatly assist them in fashioning the effective remedy. There is nothing between the noble and learned Lord the Lord Chancellor and myself about the aim. We are concerned only about making the Bill clear on its face so that legal scholars, publishers, barristers, solicitors and, in the end, judges are not troubled by having to read this debate in order to arrive at the simple conclusion that it was the intention of Parliament that the courts would have regard to Article 13 of the convention.
I shall beg leave to withdraw Amendment No. 1. Since we are speaking to the grouped amendments, I shall also beg leave to withdraw Amendment No. 6. However, having carefully considered the arguments put forward I believe that it would be sensible if Amendment No. 6 found favour with the Government as a way of solving a practical problem. I beg leave to withdraw Amendment No. 1.