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Lord Brabazon of Tara: My Lords, very briefly and rather frivolously, the noble Baroness said that she hoped that the order would be non-controversial. The explanatory note on the back of the order says that it amends the meaning of "pier". Provided she keeps to that spelling of "pier", it will be non-controversial.

Lord Inglewood: My Lords, I am most grateful to the noble Baroness for her comprehensive overview of the circumstances bringing about the tabling of the order. Speaking purely personally, I have always been in favour of fountains. If the order makes it easier to bring about the creation of new fountains where it is everyone's wish that there should be such things, I am sure everyone will be in favour of it.

On Question, Motion agreed to.

Lord Haskel: My Lords, I beg to move that the House do now adjourn during pleasure until 8.35 p.m.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 7.56 to 8.35 p.m.]

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Human Rights Bill [H.L.]

House again in Committee.

Clause 3 [Legislation]:

Lord Kingsland moved Amendment No. 15:

Page 2, line 23, leave out ("possible") and insert ("reasonable").

The noble Lord said: I can put the point that lies behind this amendment simply. It relates to the debate on the previous amendment. The noble and learned Lord may well take the view, having heard me, that he has already responded adequately. The point is simply this: is Clause 3(1) intended to be a reflection or an extension of the common law rules of statutory interpretation? I believe that I need add nothing further to my question. I beg to move.

Lord Cooke of Thorndon: The noble Lord, Lord Lester of Herne Hill, earlier in Committee, mentioned the New Zealand Act. As Clause 3 is the corresponding provision of the United Kingdom Bill, it seems appropriate to say just a word or two comparing the two.

One appreciates that, as the noble Lord, Lord Kingsland, has perhaps suggested, Clause 3(1) of the Bill definitely goes further than the existing common law rules of statutory interpretation, because it enjoins a search for possible meanings as distinct from the true meaning--which has been the traditional approach in the matter of statutory interpretation in the courts.

The difference is not as huge as might be thought at first sight. Even under the New Zealand corresponding provision, the courts have said that the kind of interpretation now enjoined is not a strained interpretation; it is one that is fairly possible. I suspect that the very strength of the clause, as it is now worded, may have been of material assistance to the noble and learned Lord the Lord Chancellor in forming the view which he expressed at Second Reading that declarations of incompatibility would be rare.

The corresponding New Zealand provision is in different language and in some respects the United Kingdom proposed provision may be slightly wider. I shall read the two provisions. It seems to me that in substance in the important matters there is no difference. The New Zealand provision is Section 6 of the New Zealand Bill of Rights Act 1990. It provides:

    "Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning".

The United Kingdom Bill provides that:

    "So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights".

The words,

    "must be read and given effect",

may arguably be slightly wider than the New Zealand words, although I doubt that. What is much more important is that both provisions contain strong mandatory words. In the New Zealand provision those words are "can" and "shall"; in the United Kingdom provision, as proposed, the words are "possible" and "must". It is manifest that any dilution--I avoid the word "wrecking"--any watering down of the strength

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of the United Kingdom provision, as contained in the Bill, will strike at its very heart. I suggest that Clause 3(1) is a key provision in the proposed legislation, possibly even the most important provision.

In this country the New Zealand Bill of Rights is sometimes stigmatised as weak. That is not necessarily so when its interpretation is in judicial hands; but it would be a sad state of affairs if, when the New Zealand provision is criticised in that way and it is widely urged that the United Kingdom Bill is not strong enough, the United Kingdom Parliament were to enact a measure more timid than, or a weaker version of, the New Zealand Bill. That would be an extraordinary result of the long consideration and the long gestation which the United Kingdom Bill has undergone. I respectfully urge the Committee and the Government not to be persuaded to do anything to weaken Clause 3(1).

Lord Lester of Herne Hill: The speech made by the noble Lord, Lord Kingsland, seemed in inverse proportion to his enthusiasm for the amendment. He spoke with extraordinary brevity on an amendment of great importance.

It gives me great pleasure to follow the noble and learned Lord, Lord Cooke of Thorndon, and I should like to add a few words of agreement. If one looks across the Commonwealth, including the dependent territories, to the constitutional Bills of Rights which incorporate the European Convention into domestic law in Africa and the Caribbean, in Bermuda and in Hong Kong before and after the resumption of sovereignty of the People's Republic of China, one finds in all those jurisdictions (except New Zealand) that the courts are given aggressive power to strike down inconsistent legislation. However, the Government have chosen not to adopt that course for reasons that I understand and support as long as all that we are engaged in is giving domestic effect to the European convention rather than creating a full constitutional Bill of Rights of our own, which I hope will occur one day in my lifetime.

If one looks across the Commonwealth, one finds that the weakest form of a Bill of Rights is, as the noble and learned Lord indicated, the so-called New Zealand model. As far as I am concerned, the command to the judges as far as possible to construe legislation in conformity with convention rights is an elegant way of reconciling sovereignty with effective judicial remedies.

If one were to adopt the amendment and seek instead only a "reasonable" interpretation, we would be close to the current principles of interpretation which are already applied in an unincorporated convention since the courts already construe existing legislation on the basis that Parliament intends to conform to the convention in exercising legislative power and therefore ambiguities or manifest absurdities are to be dealt with by having recourse to the convention where reasonably possible.

My view is that the Government are right in seeking to adopt a stronger command to the judges in order to reduce the mismatch and the need for declarations of incompatibilities, for the reasons raised in the previous debate. At first sight, nothing could seem more reasonable than to say to the judges, "Adopt an

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interpretation if you reasonably can" rather than, "if you possibly can". One can imagine a jurisprudence seminar lasting several hours examining the merits of both views in terms of the three branches of our government. However, if one of the main aims of the Bill is to secure speedy and effective domestic remedies for violations of the convention and to put our courts as far as possible in the same position as the European Court of Human Rights so that recourse to the European judges is kept to the minimum, it seems to me that Clause 3(1) as it stands is the right approach. Speaking for myself, if there were to be any dilution of Clause 3(1), I would cease to be a friend of the Bill.

8.45 p.m.

The Lord Chancellor: I do not desire to be unkind to the noble Lord, Lord Kingsland, the difficulty of whose position I well understand, but it is incumbent on him to explain to the Committee what his amendment would mean rather than ask me a question about whether the Bill is a departure from ordinary principles of construction. However, I leave that and assist the Committee as best I can.

We want the courts to strive to find an interpretation of legislation which is consistent with convention rights so far as the language of the legislation allows and only in the last resort to conclude that the legislation is simply incompatible with them. I have to speculate about the purpose of the amendment, but it would appear to reflect a desire to have the courts stop some way short of that point as far as interpretation is concerned, which means that they would arrive at more, rather than fewer, conclusions that the legislation is incompatible with the convention. Speaking for myself, I cannot see what is gained by that objective. Our position is that the courts should apply the law and not make it and that they should not be dragged into the area of opinion or into judgment of a political character perhaps to a greater or lesser extent.

The word "possible" is the plainest means that we can devise for simply asking the courts to find the construction consistent with the intentions of Parliament and the wording of legislation which is nearest to the convention rights. On the other hand, "reasonable" is an evaluative criterion and the proponents of the amendment do not offer us any guidance as to what the criteria might be.

All I need say in resisting this amendment is that we want the courts to construe statutes so that they bear a meaning that is consistent with the convention whenever that is possible according to the language of the statutes but not when it is impossible to achieve that. More generally, we proceed on the basis that Parliament, at least post-ratification of the convention, must be deemed to have intended its statutes to be compatible with the convention to which the United Kingdom is bound, and that courts should hold that that deemed general intention has not been carried successfully into effect only where it is impossible to construe a statute as having that effect. This seems to me to be a sensible principle and is consistent both with Parliament's presumed intention post-ratification and with ministerial

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statements of compatibility, when they come to be made, under Clause 19 of the Bill. If this amendment were agreed to, the only intention that I could divine behind it would be to maximise rather than minimise declarations of incompatibility which would tend to bring the statute book into unnecessary disrepute. For those reasons, I am not persuaded by the amendment.

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