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The Lord Chancellor: The short answer to that is this: I gave the explanations last time of why we preferred in Clause 2(1) "must take into account" rather than "must be bound by". Our courts must be free to develop human rights jurisprudence by taking into account European judgments and decisions, but they must also be free to distinguish them and to move out in new directions in relation to the whole area of human rights law. However, the victim test defines those who can assert--those who have rights to assert--that their convention rights have been denied; that is to say, European jurisprudence confines complainants to victims, and that has been determined in Europe beyond any possibility of recall. We, therefore, follow that position.

Lord Campbell of Alloway: That must be Amendment No. 9, to which the noble Lord, Lord Kingsland, was speaking. That is only a recollection. I support Amendment No. 9 but, with great respect, I do not think that it has any relevance to our situation today. I wholly support the view of the noble and learned Lord the Lord Chancellor on this amendment, but I am afraid that I cannot do so on Amendment No. 9.

Lord Lester of Herne Hill: I am extremely grateful to all noble Lords who have spoken, especially the noble and learned Lord, Lord Ackner, not only for what he said about me personally but because it was he who sponsored me for Silk to Lord Elwyn-Jones, who was then the Lord Chancellor. Therefore, it is all the fault of the noble and learned Lord that I became one of Her

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Majesty's counsel, allegedly learned in the law. I have always remained indebted to the noble and learned Lord for that.

I am grateful also to the noble Lord, Lord Kingsland. I believe that this is the first time in these debates when our Benches and his--and the Government Back Benches and the Cross Benches--have made common cause. The only noble Lord who has spoken in support of the noble and learned Lord the Lord Chancellor is the doubtful supporter, the noble Lord, Lord Campbell of Alloway--"doubtful" not only because he was not here for part of the debate but, more seriously, because he seems to have changed his mind for reasons that I do not yet follow. I should have mentioned at the outset--

Lord Campbell of Alloway: If the noble Lord will give way, anybody who has any sense can change their mind in relation to a sensible, tight argument. I preferred the argument of the noble and learned Lord to that of the noble Lord. The noble Lord can have no complaint about that.

9.30 p.m.

Lord Lester of Herne Hill: I should have mentioned--it was a discourtesy--that the noble Lord, Lord Alexander of Weedon, wished me to say that he was sorry not to be here this evening. However, he supports these amendments both personally and on behalf of Justice.

I am grateful to the noble and learned Lord the Lord Chancellor for his very full reply. I shall consider carefully what he has said. I hope that he will return the compliment and be willing to consider equally carefully what has been said on all sides of the Chamber in the course of this debate. He is a brilliant Lord Chancellor, but a man of extremely firm views. On this Bill and otherwise I am reminded of the words of Judge Learned Hand speaking in Central Park, New York, on the spirit of liberty just after the war. He said that the spirit of liberty was a spirit that was not too sure that it was right. We hope to be able to convince the Lord Chancellor that perhaps this is one area in which open minds, open doors should apply.

The noble and learned Lord has dealt fully and carefully with my plea for third party interventions; that is, that our courts should be in the same position at least as the European Court of Human Rights--I say that it should be north as well as south of the Border--in being helped by third parties, whether they be public bodies like the EOC or public interest bodies, and that the Crown should not have the sole right of intervention as a third party. Of course, it will not be satisfactory if a different position obtains in different parts of the United Kingdom. We may have to return to that matter.

What the noble and learned Lord has not dealt with are the points that I made about the enormous burdens that will be placed upon the courts when they have different standing principles according to whether it is ordinary judicial review, judicial review with a Community law element and an ECHR element as well or judicial review with a pure ECHR element, and where in the course of litigation the grounds of review alter as

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the issues become plainer. That will pose grave difficulties not only for the advocates in the case but also the courts. I would be surprised if the noble and learned Lord the Master of the Rolls was not particularly anxious about this. He wished to be here to deal with that practical problem.

We have heard nothing about the mischief about which the Government are concerned. Surely, if the EOC, a trade union, the Joint Council for the Welfare of Immigrants or any other public body with a genuine and sufficient interest in the matter wishes to challenge administrative discretion as being incompatible with the convention, it should be entitled to do so without the artificiality of finding a John Doe as a nominal applicant. I do not understand the mischief that the Government are so anxious to deal with that they wish to import the European test of "victim", devised for a different purpose, rather than use our own domestic standing rules. No answer has been provided to these practical problems which will afflict both judges and counsel in cases in ways that I have suggested; nor has there been any explanation as to the mischief that requires this unique importation of a European rule which, to the best of my knowledge, has never been adopted in any other European country or in any other analogous Commonwealth jurisdiction.

I shall reflect carefully upon what the Lord Chancellor has said. I very much hope that at Report stage there will be some reflection of the debate as a whole so that we can come together united. I believe, as does the noble Baroness, Lady Kennedy of The Shaws--she said this in her remarkable maiden speech last week--that we should try where we can to build on a consensus and not be adversarial. This is an area in which I believe judges and noble Lords generally wish the same standing test to apply in a consistent manner. Having said that, I shall obviously not press the matter this evening and therefore I wish to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carter: It may be helpful and for the convenience of the Committee if I say that the usual channels have agreed that we shall rise at eleven o'clock or Amendment No. 76, whichever comes first. That shows that I am an incurable optimist, even after eight months as Chief Whip. But we must finish this Bill on Thursday.

Lord Simon of Glaisdale: Why?

Lord Carter: Because, if a fourth day is needed, it will be in the early hours of Friday morning.

Lord Henley: Perhaps I may say a few words in response to that statement by the Government Chief Whip. We shall certainly do our utmost to help the noble Lord in getting as far as we can. I am sure that the noble Lord will have observed that we have moved our amendments quickly and we shall do much the same on Thursday. I certainly do not wish to sit late on Thursday for reasons of my own.

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However, the noble Lord will accept that this is an extremely important Bill. The noble Lord and I have debated matters late at night on other occasions but whether that is appropriate for the Human Rights Bill is another matter. As I say, we shall give all possible co-operation on Thursday but should we reach a late hour on Thursday, perhaps the noble Lord will give some consideration to allowing us some extra time. It is not as though we have reached the stage at which the noble Lord will find himself next summer when we shall obviously be very short of time. At the moment the Government have quite a lot of time and it would be worth considering, through the usual channels, providing perhaps an extra half day, should that be necessary. As my noble friends have pointed out to me, it is a Bill of constitutional importance.

Lord Carter: I agree that Members of the Committee on the Opposition Front Bench have not exceeded the normal time limits on consideration of their amendments. Equally, the noble Lord will understand my difficulty. We have a programme to get through. We allowed what we thought was plenty of time for this important Bill and we should like, if we possibly can, to finish the Bill on Thursday. The noble Lord would not expect me to give any undertaking regarding further time as that might be an encouragement to your Lordships.

Lord Simon of Glaisdale moved Amendment No. 47:


Page 4, line 26, after ("only") insert ("(save for the Human Rights Commission established under section (Human Rights Commission) of this Act)").

The noble and learned Lord said: In rising to move this amendment, I express my thanks to the noble Lord the Chip Whip for intervening. I beg to point out that par for the course is 10.30 but we should be thankful for at least small mercies. We are promised that we shall rise at eleven o'clock.

This amendment is a paving amendment, together with Amendment No. 53, for Amendment No. 104 which concerns the establishment of a human rights commission. There is another amendment, Amendment No. 93, dealing with that in the name of the noble Lord, Lord Lester of Herne Hill.

Both amendments are based on a brief and recommendation by all the public interest groups which have taken an interest in this Bill. The amendment in the name of the noble Lord, Lord Lester, is closer to them, although it makes some alterations with which I agree. My own amendment makes considerable alterations. They were prepared in the hope of mollifying my noble and learned friend the Lord Chancellor at a time when I thought he might be mollified.

As I say, the amendments are paving amendments for Amendment No. 104. Amendment No. 93 does not appear to be paved with anything except good intentions, like the road to hell where my noble and learned friend the Lord Chancellor sits clutching his briefs, all of which end with the word "Reject".

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It would be more agreeable for the Committee were I to leave the main introduction on the subject of the human rights commission, which, as I say, is recommended by all the public interest groups, to the noble Lord, Lord Lester. There is another reason: I was intending to quote a passage from the admirable speech on Second Reading of the noble Baroness, Lady Amos, in which she cogently set out the case for a commission. As she is in her place, it is preferable that she make her own speech rather than that I try to make it for her. With that introduction, I propose to leave it to the noble Lord, Lord Lester. I beg to move.


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