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Lord Meston moved Amendment No. 91:

Page 7, line 30, at end insert--
("( ) A court or tribunal which is required in any proceedings to consider whether or not any jurisdiction should be exercised in the United Kingdom or in another state shall have regard to whether, and to what extent, any party to the proceedings or any person under disability who is the subject of the proceedings may be affected by a denial or infringement of the Convention rights in such other state (whether or not that state is a signatory to the Convention).").

The noble Lord said: I hope that Amendment No. 91 is largely self-explanatory. It would require a court or tribunal exercising a discretion which required the consideration of competing jurisdictions--for example, whether to grant a stay of legal proceedings, or a sist as it is known in Scotland, or some other forum conveniens dispute--to consider the possible impact of an infringement of convention rights in the other jurisdiction. Most typically, it would require consideration of Article 6 rights--that is to say, whether there would be a fair hearing within a reasonable time.

It might also be used in the international child abduction cases in which application is made to a court in the United Kingdom to return a child to another country. The Child Abduction and Custody Act 1985 gives effect to The Hague Convention on the civil aspects of child abduction, but Schedule 1 to that Act, which contains the Hague Convention, omits Article 20.

Article 20 reads as follows:

Some of the considerations for a court in the United Kingdom in both Hague Convention and non-Hague Convention abduction cases may be as follows: how quickly proceedings concerning the child can be started and finished in the other country, whether the abducting parent will get legal aid to seek custody and to seek permission to remove the child again lawfully and whether he or she will be prosecuted upon return. These can involve European convention factors.

Article 20 of the Hague Convention was omitted from the schedule to the 1985 Act because it was considered unnecessary, given the other exceptions in the Hague Convention in relation to the mandatory return of children and because at that stage the terms of Article 20 had no clear meaning in English law. However, now that the United Kingdom is to incorporate the European

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Convention, I would suggest that in any case in which the courts of the United Kingdom are asked to consider exporting either litigation or people--which includes children--to other jurisdictions, regard should now be had to how such other jurisdictions measure up to European Convention standards. I beg to move.

The Lord Chancellor: This amendment would require a court making a decision about jurisdiction in any proceedings and, in particular, addressing the question of whether jurisdiction should be declined or asserted, to have regard to the possibility of the denial or infringement of European Convention rights in the other rival jurisdiction, regardless of whether the other rival state concerned was a party to the convention or not.

What this amendment is essentially seeking to do is to use this Bill to give effect in domestic law to Article 20 of the 1980 Hague Convention on the civil aspects of international child abduction. The main provisions of that convention, but not Article 20, were brought into force in the United Kingdom by the Child Abduction and Custody Act 1985, under which the Lord Chancellor is the central authority for England and Wales.

That this is an important issue I do not question. I question, however, the appropriateness of using this Bill to address it. Regardless of whether it is in principle a good idea to give domestic effect to Article 20, I do not believe that this Bill is the right vehicle in which to revisit this issue. The purpose of this Bill is rather grand. It is to give further effect in domestic law to rights and freedoms guaranteed under the European Convention on Human Rights. Its purpose is not to give domestic effect to the provisions of any other international treaty.

Issues of jurisdiction are very complex. They are governed by a number of international treaties, and this Bill is not, in my submission, an appropriate forum in which to consider these contentious issues. After all, the amendment would apply, as I read it, not only across the whole range of family proceedings but also to litigation generally, including commercial proceedings. The implications are therefore extremely wide and we would want to give them much further thought before making the change proposed here. Our deliberations on this Bill do not constitute an appropriate forum for discussing these contentious matters. I am sorry to disappoint the noble Lord, but I hope that he will not press this amendment.

Lord Meston: I will not pretend that I am not a little disappointed by the response of the noble and learned Lord the Lord Chancellor. I suggest that this is an appropriate Bill because this is the moment at which we are incorporating the convention and the message should be going to all the courts exercising any jurisdiction in this country that European Convention factors should now be considered among other factors in a wide range of jurisdictions.

Although I accept the point that this is an important issue and a complex matter and one that is certainly wider than The Hague Convention point which I mentioned in explaining the amendment, it is

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unfortunate that we shall have to wait until the introduction of other legislation which might be considered more appropriate. I would hope that some further thought could be given to this point before the Bill completes its parliamentary passage; meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 92 not moved.]

On Question, Whether Clause 13 shall stand part of the Bill?

Viscount Colville of Culross: On this Motion I seek a word of clarification from the noble and learned Lord the Lord Chancellor. Last week I asked him how courts such as the Crown court were to take account of the jurisprudence which comes from Strasbourg. He has written me a letter, which I received this morning. I showed it to my colleagues at court at lunchtime today and it was greeted with enormous interest by them, as it contains a number of most positive and constructive methods whereby we are all to be informed or to have available to us the jurisprudence which has arisen and will continue to arise. I thank him for that.

I suggest it is of sufficient interest to warrant rather wider dissemination than simply being in the form of a letter to me and three other Members of your Lordships' House. I welcome very much what the noble and learned Lord said about that.

Since I understand that it is the intention of the Government that the rights enshrined in the covenant should permeate throughout the entire judicial system, I now want to ask him when these rights may be used in the courts. I give an example of this, looking at Clause 13. One of the matters that tends to arise in a criminal trial--it does not happen very often, but it is quite important when it does--is the question of abuse of process. If there is an abuse of process and the court so holds, the trial does not proceed at all. The matter is stayed and the prosecution goes no further. Of course, if there is an abuse of process, it is highly desirable because it means that no further money is spent, there is no necessity for any appellate procedures but, most particularly, the defendant is let out of his misery because he knows where he is straightaway.

In 1992 the Court of Appeal said that many of the matters which tend to be raised by way of abuse of process can be solved as the trial proceeds. Of course, the Court of Appeal is perfectly right. However, there are two matters which arise under the European Convention: they are in Article 6.1 and Article 6.2. They are fundamental when it comes to consideration of abuse of process. The parts of the convention with which I am concerned are these: first of all, the question of delay and, secondly, the presumption of innocence.

Unlike most of my colleagues, I have the advantage of having been able to look at your Lordships' Library to see what it is that Strasbourg has said. In a case in 1995, it dealt with both those matters. It dealt with-- I believe that it dealt with it on many other occasions--the question of delay, and, also, for the first time, it dealt with the presumption of innocence. The court itself held in a case called Allenet de Ribemont v. France that

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authorities other than the court itself may say things by way of pre-trial publicity which so undermine the fairness of the trial that the presumption of innocence enshrined in the covenant is breached.

In our terms, that would be an abuse-of-process argument. Indeed, it has happened in recent times more than once. It may be the press, it may be someone in the police, it may come from all sorts of sources, but the issue that is being raised before the trial has even started is whether the defendant will be able to have a fair trial, and whether a jury can be properly empanelled, which will not have been so prejudiced in its ideas that a fair trial is impossible.

That is the type of thing that has to be dealt with in any event. The domestic jurisprudence has been built up to guide judges so as to be able to come to a conclusion about it one way or the other. What I am asking the noble and learned Lord is: will the courts at that stage be able to take account also of the jurisprudence that has come from Strasbourg, because I believe that they should do so? If they cannot do it at that stage, if a trial cannot be prevented on the grounds that an analogous case has arisen at Strasbourg, and been pronounced upon, and that the court should take account of that, we shall spend a great deal of time and money, and we shall put defendants through a great deal of tribulation before the Court of Appeal finally decides the matter. I ask the noble and learned Lord: when can we take account, in the Crown court, for instance, of the deliberations that have come from Strasbourg, because I believe that Clause 13 should say, and perhaps it does:

    "A person may rely at any stage of any proceedings on a Convention right"?

Then it would go on as before. If it means that, I am content. I ask the noble and learned Lord to clarify the point, and, I hope, confirm that I am correct.

8 p.m.

The Lord Chancellor: Clause 13(1) provides:

    "A person may rely on a Convention right without prejudice to any other right or freedom conferred on him by or under any law having effect in any part of the United Kingdom".

The purpose of that provision is to ensure that the Bill gives but does not take away. A person may rely on a convention right, but he may also rely on any other right or freedoms he enjoys under the law.

Clause 13(1) relates back to Clause 7(1)(b) which provides:

    "A person who claims that a public authority has acted ... in a way which is made unlawful by section 6(1) may--

    (a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or

    (b) rely on the Convention right or rights ... in any legal proceedings".

So a person can rely on the convention rights concerned in any legal proceedings. Next of course, any court or tribunal must take into account the judgments, decisions, declarations, or advisory opinions of the European Court of Human Rights because Clause 2(1) so provides.

It appears to me that it is for the court in question, and for individual judicial decision in any particular case, to decide when the point, based on convention law, is to be

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adjudicated upon. It is a matter to decide in its discretion whether the argument that is put before it, based on the convention, is one upon which it should decide, as, for example, a preliminary issue at the outset.

Nothing I shall say on the Motion that Clause 13 stand part should be relied upon as standing in the way of the court's discretion within its own independent sphere to decide when it is appropriate, in particular proceedings, to adjudicate upon a convention point.

Clause 13 agreed to.

[Amendment No. 93 not moved.]

Clause 14 [Derogations]:

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