Previous Section Back to Table of Contents Lords Hansard Home Page

The Lord Chancellor: My Lords, I am grateful to both noble Lords for giving us another opportunity to consider a set of amendments which relate essentially to Article 13 and the provision of remedies. All of this was debated in some detail in Committee. I am grateful for the support of the noble Lord, Lord Renton, on the

19 Jan 1998 : Column 1266

decision not expressly to include Article 13. He referred to Clause 6 of the Bill. I would refer also to Clause 8, which provides:

    "In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its jurisdiction as it considers just and appropriate".

Our courts are rich in remedies and have every freedom under Clause 8.

No one supporting the amendment has suggested any respect in which the Bill is deficient in providing effective remedies to those who have been victims of an unlawful act. That is what determines it for me. The noble Lord, Lord Lester of Herne Hill, said that there may be some elsewhere who harbour suspicions that the Government must have some secret or hidden motive for rejecting the amendments. If they do, I do not know what they are. The Bill has been constructed in a way that affords ample protection for individuals' rights under the convention. We have adopted an intentionally wide definition of public authority under Clause 6, and Clause 8(1), which I have already read, gives the courts ample scope for doing justice when unlawful acts are committed. I would say that these are measures of a government determined to deliver a strong form of incorporation, not a government fighting shy of enhancing our citizens' rights.

Our objection is that the amendments add nothing to the scheme in the Bill. On the contrary, the only effect they could have is to disturb the carefully crafted structure of the Bill in some unforeseen way. I do not know what the courts would make of amendments which, on the face of it, contain nothing new. I therefore suggest that the amendments would either cause confusion or uncertainty. In our judgment, the Bill as it stands does the job that we wish it to do and we see no advantages--only disadvantages--in taking up any of the amendments relating to Article 13 or the provision of remedies. I therefore urge noble Lords who have supported the amendments to withdraw them.

Lord Ackner: My Lords, before my noble and learned friend sits down, I wonder whether he can help on one matter. The noble Lord, Lord Lester, referred to an observation which my noble and learned friend made during the Committee stage. The noble and learned Lord the Lord Chancellor said that,

    "to incorporate expressly Article 13 may lead to the courts fashioning remedies about which we know nothing other than the Clause 8 remedies which we regard as sufficient and clear".--[Official Report, 18/11/97; col. 477.]

Perhaps my noble and learned friend the Lord Chancellor can identify what the remedies with which he is concerned might be and also how they might lawfully be fashioned in view of the terms of Clause 8, to which I shall seek at a later stage to move an amendment.

The Lord Chancellor: My Lords, I have not the least idea what the remedies the courts might develop outside Clause 8 could be if Article 13 was included. The noble and learned Lord has really made my point for me. Clause 8(1) is of the widest amplitude. No one is

19 Jan 1998 : Column 1267

contending that it will not do the job. When we have challenged the proponents of the amendment on a number of occasions in Committee to say how Clause 8 might not do the job, they have been unable to offer a single example. Therefore, the argument is all one way. What we have done is sufficient.

Lord Hoyle: My Lords, it is quite clear from the Companion to the Standing Orders and Guide to the Proceedings that the noble and learned Lord, Lord Simon, may not transfer his right of reply to the noble Lord, Lord Lester, because the latter has already spoken and is prohibited by Standing Order 28 from speaking twice.

Lord Simon of Glaisdale: My Lords, I understood the rule of order to be that a noble Lord could speak twice at the Report stage provided he was given leave to do so. That is what I referred to in inviting the noble Lord, Lord Lester, to ask for leave to speak again by sacrificing my right to speak again.

Lord Lester of Herne Hill: My Lords, I am in some difficulty. If I did, with the leave of the House, speak again, it would be to say one sentence. However, it might not be the sentence that the noble and learned Lord, Lord Simon of Glaisdale, would himself speak. Therefore, I am not sure what is the appropriate course. If I were given leave, what I would say is that I am satisfied by the Lord Chancellor's assurance that Clause 8 is of the widest amplitude.

Lord Hoyle: My Lords, I am sorry but the position is very clear. The Companion states:

    "Only the mover of an amendment speaks after the Minister on Report save for short questions for elucidation to the Minister before he sits down; except that, where the Minister wishes to speak early".

4.15 p.m.

Lord Simon of Glaisdale: My Lords, it seems to me, however reluctantly, that it falls to me to say the final words. I desire only to say this. Absolutely nothing is to be lost by including Article 13. My noble and learned friend the Lord Chancellor obviously thinks that he has served all the purposes of Article 13 in the Bill, which in his view is inviolate from envious hands being laid upon it. It may be so. There is a famous example in legislative history when a most momentous Act was passed bringing together the systems of equity and the systems of common law which had previously been disparately administered and considered. The Bill, which became the Judicature Act 1875, set out various respects in which the rules of equity and the rules of common law had diverged and resolved them in favour of equity. But there is one final paragraph, which said:

    "In the event of any further divergence, the rules of equity shall prevail".

No one at that time could think of any further divergence, just as my noble and learned friend the Lord Chancellor can think of no way in which his Bill is defective in carrying out the purposes of Article 13.

Oddly enough, some time after the 1875 Act, a discrepancy emerged which nobody thought of at the time. It fell to be decided by the provision to which I

19 Jan 1998 : Column 1268

have just referred. So however certain my noble and learned friend may be that he has covered every possible contingency for which Article 13 might call, he may have been mistaken. In another connection at an earlier stage, I quoted the famous words of Oliver Cromwell to the General Assembly of the Church of Scotland and I venture to repeat them at this stage. I hope that it will not be necessary to do so again later. The words that Cromwell used to the General Assembly were,

    "I beseech you, in the bowels of Christ, [to consider that] you may be mistaken".

On Question, amendment negatived.

[Amendments Nos. 4 and 5 not moved.]

Clause 2 [Interpretation of Convention rights]:

Lord Kingsland moved Amendment No. 6:

Page 2, line 2, leave out from ("right") to end of line 4 and insert ("shall be bound by any judgment, decision, declaration or advisory opinion of the European Court of Human Rights, and must take into account any--").

The noble Lord said: My Lords, I am tempted to ask the noble and learned Lord, Lord Simon of Glaisdale, to move this amendment for me, so eloquently has he just spoken. I tabled this amendment at Committee stage and the noble and learned Lord the Lord Chancellor very kindly said that he would go away and think about it. I do not see any accommodating amendment at Report stage, so I assume that he has decided against me.

The reason that I have tabled this amendment is to draw the attention of the House to the fact that, by requiring our own judges only to take account of the jurisprudence of the European Court of Human Rights and not to be bound by it, we would be incorporating the substance of the convention, but not its jurisprudence. The effect would be to make the incorporation of the convention a domestic Bill of human rights. Our own judges could range over its interpretation without the discipline of the decisions of the European Court of Human Rights.

One of the consequences would be that a litigant, dissatisfied, or only partially satisfied, by the judgment of our courts, could go off to the European Court of Human Rights and obtain a judgment which is more favourable than he or she received domestically. What will the Government's reaction be to that decision in those circumstances? Under the terms of the convention, if the European Court of Human Rights decides that the law of the United Kingdom falls short in some way or other of the convention, it is bound to alter its legislation to reflect that judgment. Do the Government continue to consider themselves under such an obligation? If they do incorporate the judgment of the European Court of Human Rights in those circumstances, what do they believe the attitude of our own domestic courts will be? I beg to move.

Lord Lester of Herne Hill: My Lords, this amendment was fully debated at Committee stage. Briefly, my reasons for opposing it can be summarised in this way. First, the only judgments of the European Court of Human Rights that are strictly binding on this country are in cases involving the United Kingdom directly. In international law we are not bound by any

19 Jan 1998 : Column 1269

other judgments. Therefore, very boringly and technically, the amendment is too wide in any event in suggesting that our courts should be bound by any judgment because that would be to go further than the European Convention itself requires.

Secondly--and I hope that the noble Lord, Lord Kingsland, will not mind a mild tease about this--it is a little strange for his party, which is not noted for its passionate enthusiasm for the European dimension to be brought home to this country, to be more European than the convention itself requires. It certainly does not require our courts to be slavishly bound by the judgments of the European Court.

Thirdly, if our courts get it wrong and there is a mismatch between what they decide and what the convention requires, the aggrieved individual can always go to Strasbourg. Fourthly--and I hope I say this diplomatically and with respect--the European Court of Human Rights is growing larger and larger, having, I believe, up to 40 judges who come from very diverse backgrounds and from countries in eastern, central and western Europe. Therefore this enormous court will find itself having great difficulty in developing consistent principles of law. There will be the danger of variable geometry developing in the human rights area. I hope that I will never be accused of undue chauvinism, but, speaking for myself, I believe that our judges will be able to give a lead to Strasbourg in developing jurisprudence under the convention. I would not like to fetter them in any way. It seems to me sufficient to require them to have regard to Strasbourg case law, but not to be bound by it as though it were a question of stare decisis under our domestic law.

Next Section Back to Table of Contents Lords Hansard Home Page