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7 p.m.

Lord Lester of Herne Hill: My Lords, it may be for your Lordships' convenience if I try to summarise the story so far, supplementing the account explained so clearly by the noble and learned Lord, Lord Ackner. The starting point is that the White Paper indicated, in the Prime Minister's preface and in the body of the White Paper, that the purpose of the Bill was to incorporate the convention into domestic law and to create effective remedies for breaches of convention rights. The problem was that when the Bill was drafted neither the Long Title nor any provision of the Bill stated that purpose, so there was a mismatch from the start between the White Paper and the text of the Bill.

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A further problem was, and is, that, on the face of it, Clause 1(1)(a) gives the impression that Parliament is innumerate and illiterate in terms of the law of the convention by inviting us to count from two to 12 and 12 to 14, omitting Article 13 altogether, even though we know that Article 13 creates a substantive right which has to be complied with by all the public authorities of the United Kingdom, including the courts. The problem is then aggravated by the fact that although Clause 8--with which this amendment is concerned--gives ample powers to the court to grant just and appropriate remedies there is still no link with Article 13 of the convention. Various attempts have been made to create that link. Notwithstanding the assurances that the noble and learned Lord the Lord Chancellor has given in previous debates which are, as it were, Pepper v. Hart assurances, it is essential that our courts should be able to continue to do what they have already been doing in developing the common law and in interpreting statutory discretion.

As I explained earlier, in libel cases the Court of Appeal has at least twice referred to Article 13, and the Appellate Committee of your Lordships' House has done the same in ex parte Khan. It would be most unfortunate if the deliberate exclusion of Article 13 in Clause 1(1)(a) were to be construed as intended to cut down the power of our courts to have regard to Article 13 as well as to the other substantive provisions of the convention. That is why it seems to me that the noble and learned Lord, Lord Ackner, with his skill and elegance has, as always, produced a formula which, without mentioning Article 13, creates a necessary link between the domestic obligation to give a remedy and the convention obligation that there should be an effective remedy. I cannot see that that can do any harm at all, and nor did the noble and learned Lord the Lord Chancellor indicate that it would on the previous occasion that this was discussed. It would clear up once and for all the problem I have attempted to summarise. For that reason I support the amendment.

Lord Simon of Glaisdale: My Lords, I, too, support the amendment. I still hanker after the inclusion of Article 13 because I think its omission might well have a disproportionate effect on a court of interpretation. They might well say, "Why is Article 13 exceptionally not specified in the schedule?" It is rather like when a child loses its milk teeth. Until the tooth is replaced, every eye is drawn to the gap. That might well be the effect of the lacuna.

However, my noble and learned friend Lord Ackner has skilfully gone a long way to mitigating any adverse effect by his amendment. I wish to add only this. Between the two days of Report, there has been an important occurrence. A leading constitutional lawyer--none is more eminent than Mr. Geoffrey Marshall--has written to The Times and drawn attention to two matters in which the Bill is defective. One is the absence of Article 13; and the other is the refusal to reinforce and to nominate in the Bill the doctrine of implied repeal, both of which matters were canvassed on the last occasion. Mr. Marshall seemed to think that those

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matters can now be put right only when the Bill goes to another place. He may be right on that. He is probably right as regards implied repeal because I do not think that I shall be entitled to put that down for discussion again at Third Reading.

However, if my noble and learned friend's amendment is accepted, the matter may be reconsidered at Third Reading. What he proposes can only do good; it cannot possibly do any harm. But it may be thought preferable to go back expressly to Article 13 in view of what I have just said.

In view of what Mr. Marshall wrote and what has been said by the two noble Lords who preceded me, I hope that the amendment may be accepted.

The Lord Chancellor: My Lords, we have already had a full argument on this proposed amendment. Clause 8(1) provides that,


    "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".
In my respectful view, that gives the courts the amplest discretion. I am not persuaded by an argument which proposes an amendment on the basis that it may well be unnecessary but where no specific argument is advanced as to how it may do some positive good. In my view that is likely to be productive only of uncertainty. I therefore oppose the amendment.

7.15 p.m.

Lord Ackner: My Lords, I do not know from where my noble and learned friend the Lord Chancellor gets the proposition that we have already had full argument on this issue. We have had no such thing. At Committee stage, when the Lord Chancellor criticised the suggestion that Article 13 should be referred to, I intervened before he sat down and said that perhaps the whole problem may be solved by adding at the end of Clause 8(1) the very words that are the subject matter of the amendment. Your Lordships said that if one wishes to do that one raises it on Report. That is exactly what I have done. I have raised it on Report. The matter was not referred to by way of any argument when we were on Report a few days ago. I reserved the matter specifically saying that it was a matter which I would move at a later stage.

It rather looks as though my submissions have fallen on totally deaf ears because your Lordships thought that it had already been dealt with. It had not. If I am wrong, I shall be happily interrupted to be corrected. The matter has not been argued before.

The Lord Chancellor: My Lords, I entirely accept what the noble and learned Lord says. The amendment was originally grouped with Amendments Nos. 3, 5 and 70, the purpose of which was to include Article 13 in the convention rights. Your Lordships debated that set of amendments on 19th January when I explained the Government's position: that the Bill provides a coherent and effective scheme for providing remedies and that nothing was to be gained by adding Article 13 to the list of convention rights.

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All I was saying was that in principle we have effectively debated these points. But there is nothing inappropriate, and the noble and learned Lord is well within his entitlement, in putting down the amendment for consideration now. I entirely appreciate that the amendment is to insert into Clause 8(1) a statement that the remedies granted by the courts are to be such as to give full and effective protection to convention rights.

The key point is this. Given the wealth of remedies available to a court under Clause 8(1), nothing further is needed, in the Government's judgment. We are confident that Clause 8 will allow the courts to do full justice in the cases that come before them. I repeat that it is noteworthy that on the several occasions that we have now debated this general issue, no one has been able to point to any particular deficiency within Clause 8(1).

Lord Lester of Herne Hill: My Lords, I am grateful to the noble and learned Lord the Lord Chancellor. Will he deal with the point I raised: that our courts have already expressly had regard to Article 13 of the convention?

Lord Haskel: My Lords, perhaps I may remind noble Lords of the convention that once the mover of the Motion has spoken at Report any further interruptions are purely on matters of detail.

Lord Ackner: My Lords, I am just finishing my reply because I had invited the noble and learned Lord to interrupt me if I had got the position wrong.

I clearly have not. I said in terms on the last occasion that I should be moving the matter at a later stage notwithstanding the groupings. The groupings were not accepted by me. In fact I had asked, but it was overlooked, that the amendment be grouped separately. The matter has not been argued.

The Lord Chancellor has not answered the point I seek to make. It is that whereas the amendments to Clause 1 were, so he said, amendments which could cause confusion or uncertainty, what I propose now would do no such thing. It would make clarity doubly clear. Therefore the objection to the amendments to Clause 1 has absolutely no relevance to the amendments I put forward. That is why I had hoped that that particular point would be addressed; it cannot be in the same category as the amendments to Clause 1. That is why I did not move this amendment with those amendments.

I do not know whether my noble and learned friend the Lord Chancellor would like to deal with that point. But if he does not, then it merely means that my argument has not been properly addressed. I cannot accuse the noble and learned Lord the Lord Chancellor of a lack of generosity of spirit. When it comes to later amendments concerning judicial pensions, he has been very generous. All I can say is that I am sorry that that admirable feature of his character has not shone forth at an early stage in this particular debate. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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