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Lord Williams of Mostyn: My Lords, I am most grateful for that contribution from the noble Viscount

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who, after all, will have to grapple with these practical problems in the future. I have a sneaking sympathy for the robust approach adopted, as usual, by the noble Lord, Lord Campbell of Alloway. On reflection, the noble and learned Lord may think that he has been uncharacteristically acerbic in complaining about the explanation given to him.

I wrote to the noble and learned Lord fully in a three-page letter on 14th January, which gives ample time for consideration for a Report stage on 19th January. The letter included this paragraph:


    "I thought you would like to know that your amendment has occasioned a good deal of thought within the Government, and we have decided to table our own amendments in response to it. I attach a copy of these".

That lengthy letter concluded:


    "I am sorry to have written at such length. This is a difficult issue, and I wanted to give a full explanation of our reasoning".

I do not believe that that, in all conscience, exhibits any symptoms of a pathological or a psychopathological condition on my part or on the part of the noble and learned Lord the Lord Chancellor. We listened carefully to what the noble and learned Lord said. As I said earlier, we discussed things carefully. When we came to our conclusion the letter was delivered to the noble and learned Lord last Wednesday. I was not to know--pathologically or psychopathologically--that he might have had other things to occupy his attention on Thursday, Friday, Saturday and Sunday.

The noble and learned Lord might agree with me that he has been unduly and unfairly harsh. It is self evident--I say it, and I almost said, "for the last time", but no one is that fortunate--that this point will involve a balancing exercise. Article 8.1 and 8.2 will not just have to be balanced internally, they will have to be balanced, as the noble and learned Lord the Lord Chancellor has told our friends and colleagues in the media, with Article 10. They will have to be balanced--to take up an implied point put by the noble Viscount, Lord Colville of Culross--with the question of a right to a fair trial. There may be many circumstances with which he and I are well familiar in practice over the years where a fair criminal trial for one person may well involve an infringement of someone else's private confidences or family life. That is a commonplace that we all know.

There is nothing difficult about the balancing in principle. It will be an anxious task for the courts to carry out. We believe that we have the formulation right. I respectfully commend our amendments to your Lordships.

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendments Nos. 14, 15 and 16:


Page 2, line 38, leave out ("one or more of the Convention rights") and insert ("a Convention right").

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Page 2, line 43, leave out ("one or more of the Convention rights") and insert ("a Convention right").
Page 3, line 2, leave out ("one or more of the Convention rights") and insert ("a Convention right").

On Question, amendments agreed to.

Lord Hardie moved Amendment No. 17:


Page 3, line 11, leave out ("as a court of criminal appeal") and insert ("otherwise than as a trial court").

The noble and learned Lord said: My Lords, in Committee, the noble and learned Lord, Lord Mackay of Drumadoon, tabled an amendment which would have conferred on the High Court of Justiciary, sitting as a trial court, the competence to make a declaration that a provision of primary or secondary legislation was incompatible with one or more of the convention rights.

My noble and learned friend the Lord Chancellor explained that it was not the intention that any such power should be conferred on judges who preside over criminal trials. The noble and learned Lord's amendment, as well as concerns expressed separately by the noble and learned Lord, Lord Hope of Craighead, caused the Government to look again at the provision. As currently drafted, the provision would prevent the High Court of Justiciary from making declarations of incompatibility when considering applications to the nobile officium. That is not the Government's intention which is, as I have explained, only to prevent judges presiding over criminal trials from making such declarations. Amendment No. 17 accordingly provides that such declarations may be made by the High Court of Justiciary, except when it is sitting as a trial court. I beg to move.

Lord Mackay of Drumadoon: My Lords, I am grateful to the Minister for bringing forward the amendment, which meets in part the matter I raised in Committee. I suggest to the noble and learned Lord the Lord Advocate that the precedent of meeting my amendment with a government amendment is one which he would be well advised to follow in relation to a matter which we discussed earlier.

Lord Hope of Craighead: My Lords, I was among those who asked the noble and learned Lord the Lord Advocate to consider the matter again. I, too, am grateful for the amendment which is tendered. It is an important amendment. It is not commonly appreciated that there is a complete separation between the civil and criminal courts in Scotland. Judicial review as practised in Scotland extends in the civil courts to matters of a civil nature. Without the amendment, it would be difficult for the High Court of Justiciary in all its forms to cover the various situations in which questions of incompatibility might arise. I am particularly grateful for the amendment, therefore, because it will give considerable importance to the way in which criminal jurisdiction in Scotland will develop in the light of the provisions of the Bill.

On Question, amendment agreed to.

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7 p.m.

Lord Lester of Herne Hill moved Amendment No. 18:


Page 3, line 14, at end insert--
("(f) in Jersey, the Royal Court or the Court of Appeal;
(g) in Guernsey, the Royal Court or the Court of Appeal;
(h) in the Isle of Man, the High Court.").

The noble Lord said: My Lords, in moving Amendment No. 18, I shall speak also to Amendments Nos. 20, 68 and 69. The purpose of the amendments is to incorporate convention rights into the laws of the Channel Islands and the Isle of Man. Perhaps I may give a brief background. The Channel Islands and the Isle of Man enjoy a unique status as dependencies of the Crown. Although they have their own legislative assemblies and by long-established convention are responsible for the regulation of their own domestic affairs, including taxation, the United Kingdom has ultimate responsibility for their good government and is responsible for their defence and foreign relations. Citizens of the Channel Islands and the Isle of Man are British citizens.

I turn to the power to legislate for the Channel Islands and the Isle of Man. Constitutionally, there is nothing to prevent the United Kingdom Parliament from legislating for the Channel Islands and the Isle of Man. In 1973, the Royal Commission on the Constitution (Cmnd 5460) concluded that,


    "Parliament has power to legislate for the Islands and that, in some matter at least, the exercise of this power is not dependent on the Islands' consent being given. It has, however, been the practice not to legislate for the Islands without their consent on matters which are of purely domestic concern to them. There has been strict adherence to the practice over a very long period, and it is in this sense that it can be said that a constitutional convention has been established whereby Parliament does not legislate for the Islands without their consent on domestic matters".

However, the convention is limited when an international obligation--for example, incorporation of the European Convention on Human Rights--is at issue.

The Royal Commission stated, at Paragraph 1472; that,


    "despite the existence of the convention, Parliament does have power to legislate for the Islands without their consent on any matter in order to give effect to an international agreement".

It states at Paragraph 1473:


    "in the eyes of the courts, Parliament has a paramount power to legislate for the Islands in any circumstances, and we have proceeded on this assumption ... But if, exceptionally, circumstances should demand the application to the Islands without their consent of measures of a kind hitherto regarded as domestic, then Parliament would, in our view, have the power to enact the necessary legislation".

I apologise for having quoted from that document, but it is important to be clear that one is acting in accordance with constitutional convention in a matter of this kind. I submit that bringing convention rights home to British citizens of the islands is an exceptional circumstance, so that they may obtain legal redress in the courts of the islands.

I turn briefly to what the precedents show. The power to legislate for the islands has been exercised in the past. For example, the Extradition Act 1989 is extended to

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the Channel Islands as if they were part of the United Kingdom. Prerogative powers have also been exercised in relation to the Channel Islands without prior request for such exercise; for example, the prerogative of mercy and the Court of Appeal (Channel Islands) Order 1949. Similar powers have been exercised in relation to the Isle of Man. The Isle of Man Act 1979 gives effect to an agreement between the Government of the United Kingdom and the Government of the Isle of Man by which both countries have been treated as a single area for the purposes of value added tax and car tax. In 1967 the United Kingdom Parliament imposed upon the Isle of Man the Marine Broadcasting (Offences) Act by statutory instrument outlawing broadcasting from marine structures within the British islands and the contiguous sea areas.

I turn to the obligations under the European Convention on Human Rights since that is an important and relevant matter. Under Article 1 of the convention, the Government have an obligation directly to secure to everyone respect for their convention rights in the territories for which the Government have responsibility, including the Channel Islands and the Isle of Man. In the inter-state case of Ireland v. United Kingdom in 1978, the European Court of Human Rights observed:


    "By substituting the words 'shall secure' for the words 'undertake to secure' in the text of Article 1, the drafters of the Convention also intended to make it clear that the rights and freedoms set out in Section 1 would be directly secured to anyone within the jurisdiction of the Contracted States".

Although in the case of Gillow v. United Kingdom in 1989, which related to regulations preventing foreigners from occupying property they owned in Guernsey, the British Government initially stated that they had not extended Article 1 of the European Convention to Guernsey, the matter was rectified and the Government wrote to the European Commission in February 1988 confirming that Article 1 had been extended to the Bailiwicks of Guernsey and Jersey. Similarly, the European Court rejected the argument in the Tyrer case in 1978, concerning the practice of birching in the Isle of Man, that the special position of the Isle of Man could justify a difference in the application and enjoyment of convention rights to the Isle of Man.

In Written Answers on 12th January 1998 the noble Lord, Lord Williams of Mostyn, confirmed the obligation of the UK Government to ensuring that the Crown dependencies comply with the European Convention. He also confirmed that at present the courts in the Isle of Man and the Channel Islands are not required or authorised directly to provide remedies for breaches of the convention.

Finally, I turn to the discrimination in relation to legal remedies which will arise if the amendments, or something like them, are not enacted. If British citizens and others living and working in the Channel Islands and the Isle of Man are excluded from the benefits of the Bill, that itself will provide grounds for complaint under the convention of unfair discrimination in relation to legal remedies. In the Belgian Linguistic case (No. 2) in 1968, the European Court explained how Article 14 of the convention--the non-discrimination guarantee--applies with an example concerning state action in

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relation to the scope of remedies before domestic courts under Article 6. The court said that it would violate Article 6 read with Article 14,


    "were [a state] to debar certain persons from these remedies without a legitimate reason while making them available to others in respect of the same type of actions".

There seems no legitimate reason to exclude the inhabitants of the islands from the benefits of incorporation. Arguments to that effect by successive British governments have never succeeded in Strasbourg in previous cases. In the Tyrer case, a submission that the special position of the Isle of Man could justify a difference in the application and enjoyment of convention rights was rejected. The European Court said:


    "Historically, geographically and culturally, the island has always been included in the European family of nations and must be regarded as sharing fully that 'common heritage of political traditions, ideals, freedom and a rule of law' to which the Preamble of the Convention refers ... Article 63 was primarily designed to meet the fact that, when the Convention was drafted, there were still certain colonial territories whose state of civilisation did not, it was thought, permit the full application of the Convention".

Therefore, it is quite clear that the European Court has regarded those islands as falling within the area of responsibility of this country in a different way from other, as it were, colonial territories.

I hope that I have explained that there is no constitutional barrier to the extension of the Bill to the Channel Islands and the Isle of Man. For Parliament to fail to exercise that power, while incorporating the convention rights into UK law, would clearly expose the Government to possible action under the convention for failure to provide the citizens of those islands with the same remedies as other British citizens would enjoy once the process of incorporation is complete.

Therefore, I very much hope that the Government will feel able to accept the amendments. I add two points only. First, unless Clause 22 is amended, there will be no power for this Government or a future government to do so except by enacting further primary legislation. That seems to me to be clumsy and ineffectual as a position.

Secondly, if the noble and learned Lord the Lord Chancellor were able to indicate that the Government required further time to take soundings on this matter, I would understand that position, provided that we may return to the matter on Third Reading; otherwise it seems to me that we shall be failing properly to incorporate the convention in areas for which we are responsible and we shall expose this country to avoidable international proceedings. I beg to move.


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