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Lord Scarman: My Lords, I intervene early in the debate because I wish to congratulate my noble friend Lord Houghton and assure him that, whether or not we support the Bill, the stomachs of the House will not suffer. There will be no gastro-enteritis as a result of this debate.
I quickly take the point: my noble friend Lord Lester is absolutely right that the European Convention was one of the most valuable products of victory in Europe. It is providential that the debate should take place in VE week. Victory in Europe was not victory over German arms. That is not what we celebrate. It was victory over the principles and governance of wicked men, led by Adolf Hitler. One of the products of that victory was the European Convention.
We have been arguing the technicalities of the matter. I invite noble Lords to look at the merits. The European Convention was a gift from victory. When we celebrate VE Day, think of it as the victory of the principles of the European Convention over the evil of those to whom the wonderfully civilised German people fell.
It is thought that there is not much common law in the European Convention. No doubt that is because it is called the European Convention on Human Rights and Fundamental Freedoms. We at governmental level took a very large part in drafting the European Convention. There is plenty of common law thought in the articles of Section 1 of the convention, soon, I hope, to be part of our law. If I may refer to him in a colloquial way, Maxwell Fyfe played a great part in leading a team of draftsmen from this country. One of the senior parliamentary draftsmen of that time, with him, helped to draft the convention. There are packets of common law sense in the convention.
Then why did the government of the day not incorporate it? They had a facile viewshared, I regret to say, over centuries by a great number of our fellow Britonsthat English law was so perfect that there was no need to incorporate the European Convention; we had it all. I suppose that that was a legitimate view in 1949 and 1950. It is not a legitimate view now. I shall not go into statistical arguments about how we stand vis-o-vis other signatories to the convention or unhappy experiences in the European Court of Human Rights. That is no part of my task. I shall simply say that there have been enough to indicate that we should look at the common law and see that it gets strengthened. The object of this Bill is to strengthen the common law, and to strengthen common law rights in just those areas where they need strengthening. I mention one example, and I shall say no more. What is the common law of privacy? We could do with a little injection of Article 8 of the convention.
There it is. It is available. But why do we want this Bill now? I shall tell the House why I want it. I want persons present in the United Kingdom, whether citizens or not, who find that they are suffering an infringement of their human rights or fundamental freedoms to go at once to a court and get relief. It is absurd that we should make great efforts to draft this Bill, ratify itthat is to say, make ourselves internationally obliged to comply with itand then say, "If the common law as laid down by the judges does not touch it, you can't have it, even though it is in the convention. What you have to do is go trotting off in the company of very expensive lawyers to Strasbourg and there see whether you can first persuade the European Commission that you have some sort of case, and then hope that the Commission will push you on to the European Court of Human Rights". That is a monstrous thing to do as we celebrate VE Day. Let us make our contribution to VE Day the incorporation of the European Convention.
Lord Renton: My Lords, I must apologise to the noble Lord, Lord Lester, and other noble Lords for not having having been here when he made his speech. I had to detach myselfI hope within the trade union rules, as the noble Lord, Lord Houghton of Sowerby, would sayfrom a rather special family gathering.
Although I am a loyal supporter of the Government, I strongly favour this Bill. We have a convention to which Britain was a party, which all parties in our Parliament agreed at the time and which gives rights to British
The noble and learned Lord, Lord Scarman, mentioned the European situation. I remind noble Lords that, so far as the laws of the European Community are concerned, our courts have not only the power but the duty to enforce them. That they should not have either the power or the duty to enforce the rights which every British man, woman and child has under the European Convention in our own splendid courts seems to be an absurd proposition.
I wish to add one other point arising from the speech of the noble and learned Lord. He put forward the proposition that this country played some part in drafting the convention. I do not wish in any sense to put forward my own virtuesI do not think that I have any. But I have to tell noble Lords that the first draft for the European Court of Human Rights was one for which I had responsibilityI was only a Back-Bencher at the time; I was a delegate to the Council of Europe. M. Rolin, the famous Belgian lawyer who defended Dr. Mossadec at The Hague after the unfortunate situation in Iran, worked on the French text. I worked on the English text. He knew English better than I knew French. He had lived here for a lot of time during the war. I knew a little French and a little of French law. We agreed the two texts for the European Court of Human Rights. It was those texts that were put before the European Assembly for approval. They were slightly altered later, but they were the foundation of the method of working of the European Court of Human Rights. I hope that noble Lords do not mind my just mentioning that, but it seems to reinforce the argument put forward by the noble and learned Lord as to the part that this country has played throughout.
The Lord Bishop of Oxford: My Lords, if this House felt able to pass the Bill in its present form, a substantial body of Church people in this country would applaud us. In 1985, the Roman Catholic bishops of England and Wales supported the incorporation of the European Convention on Human Rights into United Kingdom law in principle, as did the majority of the executive committee of the then British Council of Churches a year later.
I had the privilege of being a member of the working party of the Churches of Britain and Ireland which produced Human Rights and Responsibilities in Britain and Ireland, of which mention was made in earlier debates on the Bill in this House. It was one of the strongest recommendations of the report that the European Convention should be so incorporated.
Since that report was published in 1988, thank God, real progress has been made in Northern Ireland. But the peace process is still precarious. There are still very great fears, which could be assuaged by incorporation of the Human Rights Bill into the law of this country. What was written then is no less true today:
The arguments were so thoroughly rehearsed in previous debates that I simply want to make two very brief points. First, I see the incorporation of the convention as a confidence building measure, not only in relation to Northern Ireland, as I mentioned, but more generally in relation to our whole political and legal system. It is widely recognised that our society is in many ways floundering, with so little in the way of agreed moral guidelines.
As your Lordships have already pointed out, the United Kingdom was one of the first to ratify the convention and make it possible for individuals to petition. It seems to many of us that the next logical step is to incorporate the convention into law, thereby revealing the clear framework and foundation of human rights on which we have always prided ourselves. Not being a legal positivist, I believe that in the end it is a moral matter and that the rights enshrined in the convention are not there simply because certain states decide that they will be there but because those states recognise certain fundamental moral principles which need to be enshrined in law.
The noble Baroness the Minister has twice indicated concern about disturbing the balance between the judiciary and Parliament. But it is basic to our democracy that the judiciary already has a degree of independence and it is a fundamental and proper concern of the judiciary to safeguard the rights of individuals. In her previous speeches the Minister has indicated that there were very often conflicting claims which needed to be balanced or adjudicated between Parliament and the judiciary.
I should like to suggest that the majority of the rights set out in the convention are absolute and, although they have to be interpreted, it is the proper role of courts to interpret the law. Parliament, of course, is very concerned with human rights; but it is quite properly concerned with the general interest and the common good. The reason that we have rights is to say that there are circumstances in which, whatever the common good, certain fundamentals should not be overridden. It seems to many of us that where there is a conflict it is the function of the judiciary to safeguard those rights. It can be significantly helped in that task by having the clear framework of the European Convention incorporated into United Kingdom law.
I believe that there is a growing body of opinion which desires that. It will be an important confidence-building measure in relation to the peace process in Northern Ireland and will help to make clear the moral foundation of our own legal system.
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