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Lord Archer of Sandwell had given notice of his intention to move Amendment No. 5:

Page 1, line 9, at end insert--
("( ) Article 1 of the Sixth Protocol").

The noble and learned Lord said: I hope that it will not be said that I am less than enthusiastic about the purposes of this Bill. I have been urging my party to introduce it for quite a long time. We have listened with the greatest respect to the views of the noble and learned Lord, Lord Browne-Wilkinson, but I am bound to say that I did not quite follow his argument that to include these amendments would somehow make the realisation of those purposes more difficult. I can understand that we should concentrate on them, but it does not necessarily follow that we should concentrate on them to the exclusion of every other matter.

I had hoped that my noble friend would be able to say that at least the Government were proposing to ratify the two protocols in question. I echo the noble Lord, Lord Lester, in hoping that in due course the Government will ratify the Fourth Protocol to the International Covenant. Alas, that was not to be today, but that is not the fault of my noble friend. I do not propose to move this amendment.

[Amendment No. 5 not moved.]

Lord Lester of Herne Hill had given notice of his intention to move Amendment No. 6:

Page 1, line 10, after ("Articles") insert ("13 and").

The noble Lord said: I have already spoken to this amendment. The noble and learned Lord, Lord Ackner, unfortunately had to leave the Committee before we reached this point and he has asked me to say that he would support the withdrawal of this amendment provided that we can return to the matter on Report. The Committee will remember that the amendment does not seek to incorporate Article 13 but is intended

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specifically to allow the courts to have regard to Article 13, which is different and which seems to reflect the Government's intention as explained by the noble and learned Lord the Lord Chancellor. Therefore, it seems that the right course is to say "au revoir" but not "adieu" to the amendment and I therefore do not intend to move it.

[Amendment No. 6 not moved.]

Lord Simon of Glaisdale moved Amendment No. 7:

Page 1, line 14, at end insert--
("( ) For the avoidance of doubt, it is hereby declared that the Articles constitute provisions of domestic United Kingdom law.").

The noble and learned Lord said: In my respectful submission, this is a very important amendment, although it does no more than indicate the object of the Bill as repeatedly stated by Ministers and again in the White Paper. Indeed, the noble Lord, Lord Williams of Mostyn, recently repeated that again. The object is to vouchsafe to the citizens of this country rights that they could only previously enjoy by going to the Court at Strasbourg. In addition, the wish has been expressed--and could well be realised--that the human rights which are concerned and vouchsafed in the convention will permeate the whole of our political society. However, there is a danger under the Bill that it might be argued that the Bill falls short of that because it patriates the rights but makes them enforceable only against a public body or authority. That would be at variance with what the Government and Ministers have proclaimed.

The amendment merely seeks to make it certain that those rights permeate the whole of society and that they penetrate the very corners of our law. The amendment would add a new subsection stating:

    "For the avoidance of doubt, it is hereby declared that the Articles constitute provisions of domestic United Kingdom law".

I understood that that was precisely what the Government claimed was being done. The question I venture to ask is: are the articles the provisions of domestic United Kingdom law? If so, is there any harm in seeking to avoid doubt on the matter? I beg to move.

Lord Meston: I rise briefly to support this amendment. It provides an express and clear statement that the articles of the convention are part of United Kingdom law. The drafting of this Bill is admirable, but Clause 1(2) strikes me as a little awkward. It provides:

    "Those Articles are to have effect for the purposes of this Act".

That begs the question which was canvassed at the beginning of Committee stage: what are the purposes of the Bill? That may be cleared up with a purpose clause later on. But it would be most unfortunate if there were any doubt in anybody's mind about the status and priority of convention principles in United Kingdom

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law. I therefore respectfully agree with the noble and learned Lord, Lord Simon of Glaisdale, that this is an important amendment.

Lord Campbell of Alloway: I prefer Amendment No. 9 which I believe serves this exact purpose but in a more appropriate fashion.

Lord Lester of Herne Hill: I am puzzled by the intervention of the noble Lord, Lord Campbell of Alloway. Amendment No. 9 has a wholly different purpose, which is to ensure that domestic courts are bound by judgments, decisions and so on of the European Court of Human Rights, whereas this amendment seeks to ensure that convention rights are secured into domestic law.

Lord Campbell of Alloway: I thank the noble Lord for giving way. We cannot discuss here the distinction between a means to an end and an end. I hope the noble Lord accepts that I am concerned with the end.

Lord Lester of Herne Hill: I believe that all noble Lords, including the noble and learned Lord the Lord Chancellor, agree that one of the purposes of the Bill is to secure the convention rights into domestic law, as is our obligation under the convention. In those circumstances, I am content on this occasion with an appropriate statement to that effect for the avoidance of doubt without necessarily going further than that, provided it is made clear that that is one of the purposes of the legislation.

6.15 p.m.

The Lord Chancellor: This amendment would make the articles referred to in Clause 1, the convention rights, part of United Kingdom domestic law. We shall discuss the way in which the Bill gives effect to convention rights in more detail when we come to Clause 3. I observe that the noble and learned Lord has tabled some amendments in relation to that clause which may relate to this. In addressing the present amendment it may be helpful if I explain briefly the approach that underpins the Bill. As the Long Title states, the Bill gives further effect to rights and freedoms guaranteed under the European Convention on Human Rights but in a particular way with a very distinctive scheme of incorporation. It achieves the purpose of the Long Title by requiring primary and secondary legislation to be read and given effect so far as possible in a way that is compatible with convention rights. It places a requirement on public authorities to act in a way that is compatible with convention rights and provides for the grant of judicial remedies where they do not do so.

The convention rights will not, however, in themselves become part of our substantive domestic law. The provisions in Clause 3 operate on an interpretative basis and require legislation to be construed in accordance with the convention rights so far as it is possible to do so. That interpretative provision interacts with the obligations put upon public authorities in accordance with the generous definition of "public authority" in the Bill. As we will explain in

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more detail when we come to the relevant clauses, this provides an effective way of giving effect to the convention rights and avoids constitutional and other difficulties which would arise if we made those rights part of domestic law. For example, Clause 3--which I acknowledge the noble and learned Lord desires to amend--makes provision for the continuing force and effect of legislation that is held to be incompatible with convention rights.

Lord Simon of Glaisdale: Perhaps the noble and learned Lord will allow me to intervene. Those are amendments to that provision.

The Lord Chancellor: I understand that. One must look at this alongside Clause 3. The scheme of the Bill--one may wish to challenge it--is to make provision so as to respect the sovereignty of Parliament for the continuing force and effect of legislation held by the courts by way of a declaration of incompatibility to be incompatible with the convention rights. If those convention rights were themselves to constitute provisions of domestic United Kingdom law there would be obvious scope for confusion when the courts were obliged to give effect to legislation that predated the coming into force of the Human Rights Bill. That might give rise to the doctrine of implied repeal. That is a doctrine that can have no application because of the express terms of Clause 3.

The courts need to know where they stand on how the convention rights on the one hand and legislation on the other should be given effect to when, as will often happen, the two cover the same ground. The scheme of the Bill provides clear information to the courts. The amendment would muddy the waters and sow doubt. I believe that the scheme of the Bill is clear. I have listened with respect to the words of the noble and learned Lord and shall read the report of his speech in Hansard. However, for the present we are of the view that the amendment is inconsistent with the scheme of the Bill.

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