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The Earl of Onslow: My Lords, I hope that the noble Lord can help me a little. If there is a bigger take up of SERPS, has he any figures to show what the unfunded pension liability would be in the year 2010 and beyond because that has a great bearing on what happens to European monetary union? The German pension, as we all know, is totally unfunded--and the liability is enormous beyond the year 2010--as is the French and the Italian pension. Up until now we in this country have had a nice balanced funded and unfunded pension liability. That is my first question.

My second question is: In the early '80s we made it illegal to have fixed commission rates for salesmen. Would it not be better to go back to a fixed tariff of pension salesmen's commissions so that there would be no necessary advantage in selling one form of pension over another because the commission to the salesman or to the broker would therefore be higher for pension A rather than pension B?

Lord McIntosh of Haringey: My Lords, the noble Earl raises two important and interesting questions to which I should love to respond at length. As regards his first question on SERPS, I suspect that is a little remote from the mis-selling of personal pensions. I suspect that whatever the actuarial calculation might be, it ought to be seen in the context of the whole range of pension provision which I think the noble Earl recognises as being necessary if we are going to secure not just our old age but that of our descendants in the next century. In order to get the total picture what we fund through SERPS has to be set against what we do not fund through, for example, non-contributory pension schemes in the public sector. I am sorry but I have forgotten the noble Earl's second question.

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The Earl of Onslow: My Lords, fixed commissions for pension selling.

Lord McIntosh of Haringey: My Lords, I suspect that that is a counsel of perfection. I suspect that had it been possible to have fixed commissions, someone would have found a way of doing it. The difficulty with commissions relates not just to the total amount of commission but the proportion of the commission which is charged against the proposal in the first year of its life.

Lord Stewartby: My Lords, does the noble Lord accept that one of the problems which has caused much of the delay, even in the case of those firms which have made a serious effort to put things right, has been that a high degree of precision has been required in reaching terms for settlement? Although a high degree of precision is, in itself, desirable, it is a factor which has led to the dragging out of a number of cases further than we would have hoped. Having said that, does the noble Lord accept that the companies in this market place which have made the best progress have been those where the importance and urgency of the need to put things right has been recognised at the highest level--at the level of the chairman, the chief executive, the board of directors and senior management? Will he tell us whether it is his view, and that of his honourable friend, that the top levels of those firms which have been rather more laggardly in the process have now got the message that it is a matter to which they have to give high priority within their own businesses?

Lord McIntosh of Haringey: My Lords, those, too, are interesting questions. I rather agree with the noble Lord that those firms which have been successful in dealing with the problem of the mis-selling of pensions have been successful because they recognise the problem at a high level. If the problem had been recognised at a high level when the pensions were being mis-sold in the first place, we might not have the same kind of problem that we now have. It is the PIA's move towards individual registration which will penalise those senior managers in the laggardly firms who have not been taken the action necessary to deal with the problem promptly. It is for that reason that individual registration and penalties are necessary.

The noble Lord's first question related to over-precision in dealing with these cases. I am not sure that that is the case. A considerable number of cases are now being resolved by the firms conceding compliance and causation, and accepting that they have a responsibility to restore the situation without going into too much detail in the individual case. Again, I rather think that as clearer patterns of mis-selling emerge, the need for greater precision will diminish.

Human Rights Bill [H.L.]

5.3 p.m.

House again in Committee on Clause 1.

Lord Mishcon had given notice of his intention to move Amendment No. 2:


Page 1, line 6, at beginning insert--
("( ) The main purpose of this Act is to provide effective remedies for violation of the Convention rights within the jurisdiction of the United Kingdom.").

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The noble Lord said: I think the Committee will agree that usually the procedure of groupings not only makes good sense, it makes for tidiness of debate. This is one occasion when it does not achieve that object. I suppose that what I should have done is to make my point to those responsible people--they are indeed responsible and do much for this place--who suggested the groupings. The first I ever heard of the groupings was when I entered the Chamber earlier this afternoon.

I say that because the question of whether or not the Bill should have a main purpose clause is entirely separate from the many issues which have been learnedly discussed this afternoon. I know that my noble and learned friend, in his kindness and courtesy, said that he would be considering the whole debate. I would ask him to regard the question of main purpose as a separate issue. I am much indebted to the noble Lord, Lord Lester, for his kindness in that he said that he might support an amendment along the lines of the one I have tabled. In those circumstances, I shall not move the amendment.

[Amendment No. 2 not moved.]

Lord Simon of Glaisdale moved Amendment No. 3:


Page 1, line 8, leave out ("12 and").

The noble and learned Lord said: The amendment concerns a matter that was much discussed on an earlier amendment; namely, the incorporation into the Bill of Article 13. The amendment seeks to do that. The Bill reads:


    "'the Convention rights' means the rights and fundamental freedoms set out in--


    (a) Articles 2 to 12 and 14".

The amendment seeks to leave out "12 and" so that the paragraph will read, "Articles 2 to 14". The matter has been fully discussed, and the overwhelming view in the Committee was that Article 13 should be incorporated and set out in the schedule. I shall not repeat the arguments that have so cogently been put forward. Half of them were put forward by Members of the Committee who support the Bill as I do. The only voice on the other side was, I am afraid, that of my noble and learned friend the Lord Chancellor. He promised to consider the whole of the matter.

I do not propose to press this amendment or any others in my name to a Division today. Some little time ago, I came to the conclusion that I was not justified in intruding further on the Committee's deliberations. If I have weakened on this occasion I can only pray in forgiveness that I have been waiting for a very long time for this Bill--ever since its precursor was moved by the late Lord Wade. I hope that the Committee will extend indulgence. I hope that I will not trespass too far on that indulgence.

The arguments have been overwhelming from various parts of the Chamber. I do not propose to repeat what was said. Amendment No. 6 seeks in another way to do the same as I seek to do in this amendment. My amendment is shorter. It seeks to omit two words from

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the Bill. Even in a very well drafted measure such as this, a small mercy of two legislative words is not to be despised. I beg to move.

The Lord Chancellor: I have already spoken to this amendment.

Lord Simon of Glaisdale: So have I. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Russell moved Amendment No. 4:


Page 1, line 9, at end insert ("and
( ) Articles 1 to 4 of the Fourth Protocol,").

The noble Earl said: Before turning to my own amendments, perhaps I may make one remark in which I hope--

Lord Lester of Herne Hill: I am grateful to my noble friend for giving way. We have not yet dealt with Amendment No. 6, and I believe it is my fault.

Lord Henley: I think the noble Lord will find that discussion on Amendment No. 4 comes before that on Amendments Nos. 5 and 6.

Lord Lester of Herne Hill: In the groupings list Amendment No. 6 follows Amendments Nos. 1, 2 and 3.

Lord Henley: The groupings are purely informal and are designed to assist the Committee. We have discussed all the amendments within that grouping. It is open to the noble Lord, or any other noble Lord, to return to that amendment when we arrive at the amendment in its proper numerical place.

Earl Russell: I am sorry to have missed the chance to speak in the hearing of the noble and learned Lord, Lord Simon of Glaisdale. I wished to say, I hope on behalf of the whole Committee, that we are delighted that he has again taken part in our proceedings and we look forward to his doing so on many more occasions.

In moving Amendment No. 4, I should also like to speak to Amendment No. 113, which is consequential upon it. Also, with the leave of the Committee--I ask leave since this is a change in the rules--I should also like to speak to Amendment No. 115, which covers related matter. Since I should in effect be making the same speech, it seems a good idea that the Committee should not have to hear it twice.

The purpose of this amendment is to bring within the scope of the Bill and incorporate the Fourth Protocol to the European Convention. Since the convention was drawn up in 1950 quite a lot of legal water has flowed under the bridge, and quite a lot of political water also. So it has been found necessary by the parties to the convention to produce a certain number of revisions and additions which are incorporated in the protocol. That meets the point made in the past by the noble and

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learned Lord, Lord Donaldson of Lymington, about the amendment of the convention. It has been done, and I am glad that it has.

This protocol was signed by the United Kingdom, but it has not yet been ratified. However, I see no inherent impossibility about the United Kingdom ratifying the Fourth Protocol should it see fit to do so.

As to what is included in the Fourth Protocol, the Committee will find it convenient to turn to Amendment No. 113, the amendment to the schedule in which the bulk of the protocol is set out. It is a series of rights which are well within the traditions and spirit of English common law.

The first point is that it puts an end to imprisonment for debt. Here I must say a special word in memory of my late noble friend Lord McGregor of Durris, who died last week. He will be very much missed by your Lordships' House. I have heard my noble friend say in this Chamber that one of his life-long ambitions was to achieve a final end to imprisonment for debt. It is in the spirit of a memorial to him that I ask whether the Committee might consider taking this felicitous occasion to do that.

The second article of the Fourth Protocol relates to freedom of movement within one's own territory and freedom to enter and leave one's own country. The second is directly in line with Clause 41 of Magna Carta:


    "All the King's subjects shall have free entry to and egress from the realm, save in time of war".

It may be suggested that the provision is obsolete. In fact it was upheld only about 10 years ago in the United States Supreme Court by way of asserting that the State Department had no right to refuse a passport to a US subject who wished to leave the country. So it is a live tradition. The freedom of movement within the territory repeats a provision of the Petition of Rights 1628. That, again, is well within the spirit of English law as we know it at present. Incidentally, it provoked Chief Justice Coke--and the Committee will guess which county he came from--to say that sending a Norfolk man to Cumberland was a penalty no less severe than imprisonment! It prohibits the expulsion of people from their own country.

Anyone who was present in the Chamber for the first Question this afternoon should appreciate the importance of that provision. The Question dealt with Romany subjects in the Czech republic of Slovakia. People being expelled from their own territory is a cause of world instability. That should be fairly clearly prohibited is a good thing.

The most important provision is Article 4 of the Fourth Protocol, which states that:


    "Collective expulsion of aliens is prohibited".

That means that any decision to expel an alien must be taken individually as the result of a hearing. Here we come to some areas of problem in asylum law. The 1951 convention on refugees was, as we know, drafted some time ago. Those who drafted that convention did not envisage persecution as coming from anyone other than one's own government. They lived in a world of sovereign nation states which they believed had secure

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control within their own territories. We know that that is not always so. Therefore a very large number of cases of claims for asylum now are ones that come, not under the UN convention, but under Article 3 of the European Convention which is being incorporated by this Bill, dealing with torture, inhuman or degrading treatment or cruel or unusual punishment. This is the matter that I always think of as the Algerian amendment--because in that country, sadly, the forces of the state are unable to provide sufficient protection against the actions of opposition, dissidents, guerrillas and others. In the light of yesterday's news, I very much hope that I shall not have to think of this also as the Egyptian amendment.

In these cases there is a claim for asylum that arises under the convention. But the 1993 Act covers only those that arise under the UN convention, not the European convention. Cases under the European convention are very often given exceptional leave to remain, as distinct from refugee status. But there is a very large area of discretion. Where the government do not do that, there is no appeal in the British courts; but of course there is an appeal under the European court procedure at Strasbourg.

My noble friend Lord Lester of Herne Hill referred to the case Chahal, a case in which that power was exercised. So what I hope to hear on Amendment No. 115 is that, with this Bill on the statute book, people who invoke Article 3 of the European convention, asking for asylum, will find that the adjudicators are in power to apply the European convention, and not merely the 1993 Act.

This is a question about the relationship between Clause 6(1) of the Bill and Clause 6(2). It is a matter of some anxiety among professionals in the field and, as I read the text of the Bill, a matter of some uncertainty. If the noble Lord, Lord Williams of Mostyn, were able to set my mind to rest on the point, I should be extremely happy. I beg to move.


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