Orders of the Day — Human Rights Bill [Lords]

House of Commons, 3 June 1998.

INTERPRETATION OF CONVENTION RIGHTS

James Clappison (Conservative, Hertsmere)

I beg to move amendment No. 4, in page 2, line 2, leave out 'must' and insert 'may'.

Michael Martin (Deputy Speaker, Glasgow Springburn)

With this, it will be convenient to discuss the following amendments: No. 5, in page 2, line 2, leave out 'take into account' and insert 'have regard to'. No. 6, in page 2, leave out lines 5 to 10. No. 7, in page 2, line 11, leave out 'whenever made or given'.

James Clappison (Conservative, Hertsmere)

The amendments raise important issues concerning the relationship between the jurisprudence of the European Court and the way in which United Kingdom courts will apply the convention after incorporation. Clause 2 deals with the way in which UK courts determine questions relating to convention rights and take account of the relevant jurisprudence from the commission, the European Court of Human Rights and the Committee of Ministers. Under clause 2, a United Kingdom court or tribunal, in determining a question that has arisen in connection with a right under the European convention, must take into account"— I use the words of the Bill, as it is important to be precise— any …judgment, decision, declaration or advisory opinion of the European Court as well as opinions and decisions of the commission and the Committee of Ministers. To be absolutely clear, I should say that when I refer to the commission, I mean not the Commission of the European Union, but the European Commission of Human Rights, which is the body that individuals alleging a breach of convention rights first approach. The commission plays an important role in the operation of the convention and is a quite separate body from the Commission of the European Union. We wish to explore, through the amendments, the use of the phrase "must take into account". In particular, we wonder whether it is best suited to the purpose of defining the way in which United Kingdom courts should approach the jurisprudence emanating from the European Court of Human Rights and the commission. We are also concerned that the course that the Government are taking has the potential to cause problems in future. Talking about potential problems is no reflection of our confidence in our United Kingdom courts; we have great faith in the quality of our United Kingdom judiciary, and we do not want to make life any more difficult than it need be. We feel that the phrase "may have regard to" in amendment Nos. 4 and 5 is more suited to the circumstances in guiding the relationship between United Kingdom and European law. To put it in broad terms, it more appropriately fits the bill. In earlier debates on the Bill, we were rightly warned about the dangers of attempting to dance on the head of a pin. I shall not undertake to do that today. Let me spell out the difference between our amendment and the Bill as drafted. It is more than the width of the head of a pin, and we believe that, potentially, it could make the difference between putting our courts in an unnecessary straitjacket and giving them the flexibility to do what is right in the circumstances in which the convention is to be applied in the United Kingdom, if it is incorporated. We believe that the phrase "may have regard to" would be better than what is in the clause—"must take into account". It is a matter of what is better suited to the circumstances. I must make it clear that, in tabling the amendments and making these comments, we are not seeking to rebel against the European Court, to cast ourselves adrift from its jurisprudence or, still less, to raise other matters to do with the European Court or any other European issues—far from it. I should like to refer back to what the shadow Attorney-General, my right hon. and learned Friend the Member for North-East Bedfordshire (Sir N. Lyell), said in an earlier debate, when he identified three important points of principle. He said that we do not want the United Kingdom judiciary creating a separate body of law for the United Kingdom, which might go further than would the commission or the European Court at Strasbourg. We want our approach to be within the general framework of the jurisprudence of the European Court, but not to be too tightly bound by it. That is what our amendment seeks to achieve. Against that background, let me make two further points. First, the European Court has adopted the margin of appreciation that has been for some time an established part of its jurisprudence and thinking. We acknowledge the importance of that feature, and we believe that it has played a valuable part in decision making by the European Court in the past. Implicit within the doctrine of the margin of appreciation is the proposition that the decisions of national authorities should be treated with a certain respect. National authorities are considered by the court to be in the best position to look at the requirements of public interest within their nations. Therefore, the court is prepared to give national authorities a certain amount of latitude in their national affairs. Of course the court must look objectively at the convention rights from state to state, but it does so against the background of some latitude for individual states in their own affairs. The margin of appreciation is an established doctrine, but we shall hear more about it if the convention is incorporated, which is the will of the Government. We want the spirit of the doctrine of the margin of appreciation to be in evidence in United Kingdom courts. In the past, the European Court of Human Rights has shown some caution and conservatism. It has not always got it right, and I know that my hon. Friends and, perhaps, other hon. Members could easily think of decisions on some high-profile cases with which they disagree. That is bound to be the case, given the nature of the matters with which the court has to deal. However, it has always been right to approach matters with some caution. That general frame of reference is appropriate. If the convention is to be incorporated, a degree of prudence and caution, together with respect for national values, will not be inappropriate for the UK courts when they apply the convention to the circumstances of our own country. No doubt our courts will, in the fulness of time, arrive at that view. We want the UK courts to follow the general approach of the European Court in those important respects. However, we want the European Court's decisions on the judgments of UK courts to be persuasive rather than prescriptive. Clause 2 requires any … judgment, decision, declaration or advisory opinion of the European Court of Human Rights … whenever made or given to be taken into account. As the Minister knows, we have tabled an amendment relating to the words "whenever made or given". We presume that the Government intend that to include judgments, decisions, declarations or opinions of the European Court in which the United Kingdom was not a party. We note the use of the word "any", so we make the straightforward assumption that the Government intend that all that jurisprudence should be taken into account in the way required in the Bill. I look to the Minister for confirmation of that, as he was looking slightly puzzled a moment ago. We believe it to be a straightforward assumption to make from the wording in the Bill. That being so, it means that, in any cases involving any of the 40 countries across the length and breadth of Europe that are party to the convention, the judgments, decisions, declarations or opinions of the European Court or the commission would have to be taken into account by UK courts. It must follow from that that cases involving other parties to the European convention will not reflect a margin of appreciation for the United Kingdom. They may reflect a margin of appreciation for the country concerned, but not for us. The Bill says that our courts must take those decisions into account, so we must ask whether that is entirely appropriate. What may be right for other countries may not necessarily be right for the United Kingdom.

Geoff Hoon (Labour, Ashfield)

Such cases form part of the jurisprudence of the European convention, as the hon. Gentleman will know. I remind him that, when these matters were debated in another place, the Opposition argued that the Strasbourg jurisprudence should be binding on United Kingdom courts. Have the Opposition changed their view?

James Clappison (Conservative, Hertsmere)

The Minister makes a mistake by taking too partisan an approach to these matters. We are seeking to explore the margin of appreciation. I hope that he paid close attention when I made it clear that we commended the generally cautious, conservative approach of the European Court, and he will know that that has been widely recognised by commentators. We do not seek to rebel against that, but we need to explore how the Bill will require the margin of appreciation that may be taken into account in decisions by the European Court on other countries to be dealt with in our courts when they consider the decisions and judgments of the European Court. That is an entirely legitimate concern, and we were right to explore it in the other place and here. I shall come shortly to some important remarks made by the Lord Chancellor. The Minister is the Lord Chancellor's spokesman, and may be able to intervene on those. We are trying to explore important arguments for being within the reach of the European Court, but not being bound too tightly by its decisions. As the Minister has fallen into the habit of drawing on what was said in the other place, let me tell him what his noble Friend said. Having given him a sneak preview of my intention to mention those remarks, let me give him a slight surprise: I rather agree with the Lord Chancellor's sentiments, although not perhaps with his oft-expressed enthusiasm for the terms in which the Bill is drafted and in which he has taken some pride. Perhaps the Lord Chancellor's spokesman would like to pay close attention to the Lord Chancellor's words. He said: There may also be occasions when it would be right for the United Kingdom courts to depart from Strasbourg decisions. We must remember that the interpretation of the convention rights develops over the years. Circumstances may therefore arise in which a judgment given by the European Court of Human Rights decades ago contains pronouncements which it would not be appropriate to apply to the letter in the circumstances of today in a particular set of circumstances affecting this country…The United Kingdom is not, of course, bound in international law to follow the court's judgments in cases to which it has not been a party and it would be strange to require courts in the United Kingdom to be bound by such decisions."—[Official Report, House of Lords, 19 January 1998; Vol. 584, c. 1271.] We agree with those sentiments, but must question how well the drafting of the Bill reflects them. Juxtaposed with those sentiments, the drafting of the Bill, which we seek legitimately to explore, looks a little rum. First, we need to explore what our courts are intended to understand by the phrase "must take into account". It was said in another place that those words would permit UK courts to depart from existing Strasbourg decisions and that, on occasion, it might be appropriate to do so and the courts might give a successful lead to Strasbourg. Those words were spoken by another Minister in the other place. We are happy with that. Indeed, it may be recalled that, in our earlier debates, my right hon. and learned Friend the shadow Attorney-General made it clear that, whatever other reservations we might have, one of the benefits of incorporation is that British judges would have an opportunity to have an input into the fashioning of convention law. That is all well and good, but the Government have not yet been sufficiently clear on what they intend by the phrase "must take into account". 5 pm If those words are not binding—we take it that they are not—the Government must spell out more clearly the nature and extent of the circumstances in which United Kingdom courts may choose not to follow Strasbourg decisions. The Government apparently contemplate that UK courts would be permitted to depart from Strasbourg decisions when there had been no precise ruling on the matter in question. Such an example was given by the Lord Chancellor in the debate on this clause in the other place. What about cases in which there has been a precise ruling by Strasbourg? Do the words "must take into account" mean that UK courts must follow to the letter rulings in cases in which the court or the commission has made a judgment, decision, declaration or opinion in the relevant circumstances? Do our courts have to follow them at all? Will the Minister say whether UK courts may depart from such decisions when there has been a precise ruling by Strasbourg? The matter was left unclear when it was debated in another place. It is important for the future and for our courts that we know the Government's position. It is all very well to say that our courts can feel free to go their own way when there is no precise ruling from Strasbourg, but what about cases when there is?

Geoff Hoon (Labour, Ashfield)

The hon. Gentleman knows the answer to his question. The answer is clear: it is for the independent judgment of a court to resolve the issue before it. Nothing that can be said here will affect that independence. I am surprised to hear him pursue that argument, because, by doing so, he seeks to fetter that independence. If a court arrives at an apparently incorrect decision, there is the prospect of an appeal, which ultimately could end up in the court in Strasbourg. Those matters are routinely resolved before the courts every day of the year. The hon. Gentleman seeks to go into a logical cul de sac from which there is no exit.

James Clappison (Conservative, Hertsmere)

The Minister is making too much of the matter. I simply wish to explore what was left unclear in another place. I hope that he will give a more considered response later in view of the way in which the matter was left in the House of Lords, because it will not do as it stands. The Minister must deal with the question: what is the effect on United Kingdom courts if there is a precise ruling from Strasbourg on a matter that a UK court seeks to determine in this country? The Minister must give a better answer than he has given so far. It is no use trying to remit the issue to the courts in a general way, by saying that we shall leave it to the courts' good judgment. The Government have already gone so far as to say that our courts need not feel bound when there is no precise ruling from Strasbourg—they went that far in another place, in a more considered response than the Minister has just given—but what about cases when there is a precise ruling? What do the words "must take into account" import in those circumstances? I realise that the Minister is impatient to get on with the Bill, but he must give the matter a little more consideration. It is an important issue for the future. We want to guide our courts appropriately, as much as we can. I hope that the Minister will not take my remarks as an implied attack on the European Court. As I have made clear, we welcome the cautious approach that it has often taken. However, we note a word of warning given in another place by the noble Law Lord, Lord Browne-Wilkinson, who, while praising the record to date of the European Court, said: a major change is taking place. We are now seeing a wider range of judges adjudicating such matters, a number of them drawn from jurisdictions 10 years ago not famous for their observance of human rights. It might be dangerous to tie ourselves to that".—[Official Report, House of Lords, 18 November 1997; Vol. 583, c. 513.] As that warning comes from such a source, we should be wise to take it on board. I move on now to amendment No. 6. Clause 2 requires United Kingdom courts in certain circumstances to take into account decisions of the commission and the Committee of Ministers. I want to explore two points. First, is it the Government's intention to require the courts to give the same weight to decisions of those bodies as to those of the European Court? Again, I make it clear that I mean no disrespect to the commission, which I appreciate is of a high calibre and carries out valuable work. However, we need to consider whether it is right in effect to give the commission parity of esteem with the European Court, as the Bill apparently does. Clause 2 puts the commission on the same footing as the court. Is that the signal that the Government mean to send out? My second point concerns the potential problem when the European Court arrives at a different view from the commission. Under article 31, which is mentioned in clause 2(1)(b), the commission will, in a matter where it has been unable to bring the parties to a friendly settlement, draw up a report and give its opinion as to whether there has been a breach. That, of course, is standard procedure. I apprehend that subsection (1)(b) requires a United Kingdom court to take into account such an opinion even though the European Court has yet to give a view. No doubt the Minister will correct me if I am wrong. On that basis, what will happen if the United Kingdom court takes the commission's opinion into account and the European Court, also having taken into account that opinion, comes to a different conclusion, which is not altogether unknown? That would appear to be a possibility. I assume that the Government have thought that through. Will the Minister tell us what will happen in those circumstances? There are a number of potential dangers, and our amendments reflect our concerns. We seek a constructive and considered response from the Government. They know that the courts will in future consider carefully what is said about the Bill, and the Government owe it to the courts to get it right. If the convention is to be incorporated, we want a genuine partnership between Parliament and the courts. I shall say more about that later. If we are to do our job right by the courts, we must not leave them in a difficult and uncertain position on the relationship between European jurisprudence and the decisions that our courts must make in considering cases involving breaches of convention rights. Those are serious issues, and we look to the Government for a considered response.

Theresa May (Conservative, Maidenhead)

Unlike, I suspect, the majority of hon. Members present, I am no lawyer, so terms such as "margin of appreciation" and legal terms will not trip easily off my tongue. As my hon. Friend the Member for Hertsmere (Mr. Clappison) made clear, this is an important issue, concerning the relationship between the jurisprudence of the court in Strasbourg and the position of the courts in the UK, and the extent to which our courts have flexibility in interpreting that jurisprudence in applying decisions in the UK. That is obviously relevant to us all. I suspect that the Minister, in his response, will refer to the fact that we have approached the matter from two different angles in the debate in the other place and in this debate. Our approach is entirely reasonable, because we are trying to tease out from the Government the degree of flexibility that they intend UK courts to have. In response to the amendment moved by the shadow Lord Chancellor in the other place, the Lord Chancellor made statements about the Government's intentions. His remarks suggest that the Government's position is perhaps closer to our amendments than the Minister's intervention implied. It will be interesting to see whether the Government are willing to accept these amendments, because they put into effect the intention of the Lord Chancellor's words. The Lord Chancellor said in the debate in the other place: There may also be occasions when it would be right for the United Kingdom courts to depart from Strasbourg decisions. We must remember that the interpretation of the convention rights develops over the years. Circumstances may therefore arise in which a judgment given by the European Court of Human Rights decades ago contains pronouncements which it would not be appropriate to apply to the letter in the circumstances of today in a particular set of circumstances affecting this country … The United Kingdom is not, of course, bound in international law to follow the court's judgments in cases to which it has not been a party and it would be strange to require courts in the United Kingdom to be bound by such decisions."—[Official Report, House of Lords, 19 January 1998; Vol. 584, c. 1271.] Those remarks reflect the comments made by my hon. Friend the Member for Hertsmere and suggest that the Government intend to provide the flexibility proposed in amendments Nos. 4, 5, 6 and 7. Amendment No. 7 is particularly relevant, because it deals with clause 2, which provides that the courts must take into account any judgment or decision "whenever made or given". The Lord Chancellor's remarks make it clear that it would be inappropriate to suggest that decisions taken a considerable time ago are of relevance today. Amendment No. 7, which would remove the phrase "whenever made or given", would put his remarks into effect so that courts would not have to take account of past decisions regardless of their relevance.

Geoff Hoon (Labour, Ashfield)

Is not that precisely what the straightforward English expression "take into account" means?

Theresa May (Conservative, Maidenhead)

We have tabled these amendments to find out what the Government mean by the phrase "take into account". By providing that these issues should be taken into account, the Government are placing a greater emphasis on the courts following those rules and judgments than they intend. I seek from the Minister a clearer definition of "take into account". We should consider amendment No. 7, especially in the light of the Lord Chancellor's comments. It would give his remarks and the Government's intentions immediate effect. If the Government accept any of the amendments, I hope that they will accept amendment No. 7. Other provisions of clause 2(1) are also of concern. Amendment No. 6 deals with the opinions and decisions of the commission and the Committee of Ministers. If there is to be flexibility, the courts should not be required to take into account or to have regard to opinions. They are merely opinions of the commission and have not yet become judgments or decisions. Our amendments are about the extent of the flexibility and independence of courts in this country to be able to interpret the convention. The courts should not be required to take into account matters that have not yet been decided. 5.15 pm My hon. Friend the Member for Hertsmere dealt most ably with amendments No. 4 and 5. We look forward to hearing the Government's interpretation of those issues. Notwithstanding the Lord Chancellor's comments, the requirement that these matters "must" be taken into account rather than "may" be taken into account, regardless of whether a decision has been made or whether an opinion has become a decision, implies a degree of inflexibility. The Government's pronouncements on the issue suggest that that is not their intention. I hope that the Minister will consider our amendments as sympathetic to the Government's stated intentions. They try to improve the wording of the Bill, to give greater effect to the Government's intentions. The purpose of these important amendments is to tease from the Government clarification of their intentions with regard to the flexibility of the courts. I support the amendments, because they would provide the flexibility that the Government intend.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I support the amendments. It is entirely right that the courts should have flexibility when taking into account or having regard to the judgments and opinions described in clause 2. It is important that we should make it plain that the courts are not bound—that is to say, not obliged—to implement decisions made in other jurisdictions, previous decisions of the court or the opinions of the commission. I believe that it is the Minister's intention that clause 2 should not impose on the courts of the United Kingdom an obligation to be bound by such judgment, decision or opinion. It would be extremely helpful if he would make that wholly plain. The purpose of the amendments ably moved by my hon. Friend the Member for Hertsmere (Mr. Clappison) is to give the Minister an opportunity to do that. I have no objection to the word "must", but I do not particularly wish to see the word "may" incorporated in the legislation. In this context, it is right that the courts of the United Kingdom should take into account the stated decisions and opinions, although it is for the courts to determine their relevance and appropriate weight. I dissent from the Government's proposal to give equality of weight to the judgment of the European Court and the opinion or decision of the commission and the decision of the Committee of Ministers. A difference of weight should be given to the judgment of the European Court on the one hand and to the opinions and decisions of the commission and the Committee of Ministers on the other. The problem with the drafting is that no distinction is made in the Bill, and I regret that. The Bill gives all decisions equal weight, and I fancy that that is a mistake. This has been a useful probing debate, because the Government can make wholly plain what I believe to be their intention: that the courts are not bound by the decisions and opinions referred to in the Bill. I hope that the Minister will say just that.

Dominic Grieve (Conservative, Beaconsfield)

I am happy to participate, I hope reasonably briefly, in the debate. Having read clause 2 a number of times reasonably carefully, I have little to disagree with. The difficulty, and the reason why my hon. Friend the Member for Hertsmere (Mr. Clappison) has properly proposed probing amendments, is that there is bound to be anxiety about the way in which the courts will operate in practice. My understanding of what is intended—the Minister will doubtless disagree with me if I have got it wrong—is that the wording in clause 2 is designed to give a court or a tribunal discretion in applying the various areas of the decision making—the jurisprudence—of the European Court of Human Rights, or of other bodies similar to that of an English court applying the decision making of other common law jurisdictions. That is how I interpret it. Therefore, there would be wide discretion, and, I would also infer, the operation of the margin of appreciation as to whether such decisions are relevant to the particular circumstances, which the European Court has to determine in so far as they relate to the United Kingdom. Clearly, the anxiety is whether the wording is correct and will provide that measure of discretion. I share the view of my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) that the use of the word "must" as opposed to the word "may" is perfectly appropriate in particular circumstances to enable the court to do that. I have further anxiety about two points. I do not want to exaggerate their effects, but I shall probe the Minister about the intention behind the inclusion of two specific references. First, the words "whenever made or given" appear in clause 2(1)(d). I infer that that is surplusage: the words are unnecessary because, by their very nature, decisions by bodies referred to in clause 2(1)(a), (b), (c) and (d) will be relevant, irrespective of when they were made or given, but the Minister may be able to persuade me otherwise. Applying sensible English common law principles, less weight will be attached to a decision that is old, pertains to matters that have been passed by the march of events and has been doubted somewhere else than to a more recent decision. Will the Minister clarify why those words were specifically included? There may have been a desire that people should not think that only decisions made subsequent to the passage of the Bill would be affected. That may be the answer, and I should be interested to hear from him on that point. The other issue that puzzles me a little is the way in which different decision-making bodies are lumped together in clause 2(1)(a), (b), (c) and (d). The oddest is subsection (1)(d), which states: decision of the Committee of Ministers taken under Article 46 of the Convention". As I understand it, article 46 provides a mechanism by which extra structures can be added to the convention. It states: Any of the High Contracting Parties may at any time declare that it recognises as compulsory ipso facto and without special agreement, the jurisdiction of the Court in all matters concerning the interpretation and application of the present Convention. The declarations referred to above may be made unconditionally or on condition of reciprocity". That does not have much to do with the development of jurisprudence. Has it not rather more to do with the extent to which the international obligations of the parties may be extended? Therefore, I find it odd that that should appear amid what otherwise appear to be matters of jurisprudence. The Minister may be able to answer that point. Having thought about the different weight being given to a judgment or an opinion or a decision of the commission, I am not as concerned as some of my hon. Friends. The key issue in clause 2 is the meaning of the words "must take into account". The clause revolves around that. It has been suggested that the words "have regard to" might be better, and, as a term of art bandied around in the courts, they would trip off the tongues of lawyers rather more easily than "taking into account". Having thought about it carefully, I consider that there is no difference between them. It is worth bearing in mind, however, that Law Lords continually say that they or the court should "have regard to" something, so a wise draftsman might have regard to those words. I simply invite the Minister to say whether that point has been considered. Save for that, clause 2 should enable the courts to have the necessary discretion to apply the convention while not being fettered slavishly by it. I hope that he will confirm the generality of what I have said. Provided that that can be achieved, clause 2 as drafted, or even if the amendments were accepted, would still do the same job.

Edward Leigh (Conservative, Gainsborough)

At first sight, the debate may seem to involve lawyers dancing on the head of a pin and talking about whether we "may" or "must" take account of the jurisprudence of the European Court of Human Rights or whether we should be bound by it. Anyone listening to our debate would wonder what on earth we are going on about and why it is so important. Before the Minister nods too vigorously, I shall explain why the debate is important. We had a lengthy debate a couple of weeks ago on the impact of the Bill on religious liberties, Church schools and the rest. The constant refrain of the Secretary of State for Scotland, who summed up for the Government and replied to the points made by me and other hon. Members, was, "I don't know what hon. Members are going on about. The convention has been around since 1951, and if it was such a threat to religious liberties or to Church schools, and if people were going to take organisations to court, that would have happened a long time ago." The problem is that the jurisprudence of the European Court is limited. I have the figures: of the 45 applications to Strasbourg on article 9, only five have been allowed to proceed to the European Court. The article 9 point is important, because the Government have constantly argued that it will protect conventions. The point that I have made all along is that the jurisprudence is weak. The Minister has had a bit of fun today, because he has obviously read the debate in the other place, as I have. He maintains that Conservatives there argued that we should be bound by the jurisprudence of the Strasbourg court, while we are saying the opposite. Leaving aside the fact that we are perfectly entitled to probe the Government, the reason for that is that many of us are fundamentally unhappy about incorporating the convention and are unhappy about the Bill. We believe that it is virtually impossible for the Government to resolve the dilemma. Let us assume that we go down the route advocated by my noble Friend Lord Kingsland, the shadow Lord Chancellor. He made the sensible point, with which I agree, that, if we are to protect our religious liberties, we should give more cognisance and more authority to the jurisprudence of the European Court, because it has been conservative in moral, social and religious matters. I think that Lord Kingsland's argument was entirely justifiable. The Lord Chancellor disagreed, and said that our judges would be bound too closely. However, Lord Kingsland's argument—and my argument—is that we are in danger of not simply incorporating the convention in our law, but going much further. What we are creating is an entirely new Bill of Rights. We are giving our judges—who, under clause 2, must "take into account" the matters specified—considerable flexibility in how they interpret the convention. 5.30 pm My hon. Friends and I have referred to religious liberties, and the threat that the convention might pose to Church schools and other religious charities. The European Court has been very conservative, and, for that reason, the jurisprudence is very limited. The European Court has constantly applied the margin of appreciation, telling people that the cases that they have brought to it are really matters for the national courts. Our judges, however, will not be bound by the European jurisprudence, and we anticipate a rash of cases of the kind that we were discussing a couple of weeks ago. An example is a Catholic school being taken to court because it has dismissed a head teacher following her divorce. We feel that our judges, rather than being in the conservative mould of the European judges, might go much further, and that there could be a real threat to religious freedoms. That is why I consider Lord Kingsland's argument perfectly logical. The problem is that anyone wishing to advance such an argument must be pretty pro-Europe. The Lord Chancellor teased his shadow, accusing him of being "Janus-like". Another Law Lord who has already been mentioned—I think it was Lord Browne-Wilkinson—disagreed with the amendments that we were pressing in the other place. His point, which I think has already been referred to, was that the European Court had been much expanded, and now contained judges not just from western Europe but from central and eastern Europe. Some of those countries do not have our long traditions of freedom.

Edward Garnier (Conservative, Harborough)

I think Lord Kingsland's point was one that he made on Second Reading last November. He feared that the jurisprudence of the European convention, and of the Court in Strasbourg, would not be exactly replicated in the decision making of British judges. I think he said that it would not be "an exact photograph".

Edward Leigh (Conservative, Gainsborough)

I am grateful to my hon. and learned Friend. The visual image conveyed by the phrase "an exact photograph" is very powerful.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I have listened to my hon. Friend with great interest and some surprise. As I understand it, he is saying that he feels safer with the interpretation of the convention by the European Court than with the prospect of its interpretation's being at the discretion of our judges. That is a most unusual position for my hon. Friend to adopt, and I am anxious to confirm that I have not misunderstood him.

Edward Leigh (Conservative, Gainsborough)

My right hon. and learned Friend, with his piercing intellect and acute mind, has gone to the heart of the difficulty that I face. He is, of course, absolutely right. I am afraid that there is no easy way out of the dilemma, except to reject the Bill entirely, which we are not going to do—or, rather, the House of Commons is not going to do. We must try to argue our way out of the problem. As my right hon. and learned Friend implied, given the track record of the European Court's jurisprudence over the past 50 years, I have more confidence in it than in the jurisprudence that may develop in our own courts.

Geoff Hoon (Labour, Ashfield)

Perhaps I can help the hon. Gentleman. Does he believe that the Conservative party should reject incorporation?

Edward Leigh (Conservative, Gainsborough)

My personal view, which I have argued all along, is that we should reject it. Along with those of my hon. Friends who, like me, have a particular interest in religious liberties, I have said that we are going down a very dangerous route.

John Bercow (Conservative, Buckingham)

I hope that my hon. Friend will not be self-effacing about his opposition to incorporation. It is extremely robust, very articulate and widely shared.

Edward Leigh (Conservative, Gainsborough)

My hon. Friend is typically generous. I claim no particular virtue in opposing incorporation, except to make a general point. I believe that, over many centuries, our country has developed a rigid demarcation between the role of judges, which is to interpret the law, and the role of Parliament, which is to make the law. Those of us who oppose incorporation do so because we believe that judges will be given a new, expanded role that will eventually politicise them in the way in which they have been politicised in the United States.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

As this is a Committee stage, I hope that I shall be forgiven for intervening again—and, no doubt, again and again. I know the background from which my hon. Friend comes, and I know that he is concerned about the religious issues raised by the convention. May I suggest, however, that while his conclusion that he is safer with the European judges' interpretation of the convention may be justified in the context of religious freedoms, it is not justified in the wider context? I am sure my hon. Friend will agree that the judges of the European Court have extended the convention well beyond what the founding fathers originally contemplated, in, for instance, the sphere of unusual punishments. I suggest that, because of his concern about one particular point—religious freedoms, and what has been done in the European Court to safeguard them—my hon. Friend has reached the general conclusion that he is safer in the hands of the European Court than in those of the courts of England and Wales.

Edward Leigh (Conservative, Gainsborough)

My right hon. and learned Friend may be making a valid point. I hope that he will not mind if I see my role in this short debate as that of spokesman for religious organisations. As he will know, there is a great deal of concern, especially in the religious press and among religious organisations such as the Roman Catholic and Anglican Churches. Those bodies need to be reassured, and I therefore thought it important to mention them today, as I did a couple of weeks ago.

James Clappison (Conservative, Hertsmere)

My hon. Friend has moved on to important terrain. Religious organisations will be looking for protection from the European Court, within the conservative frame of reference that we have been discussing. As they will no longer have an absolute defence, as the Lords Committee voted to take it out of the Bill, will they not now look for a certain amount of judicial self-restraint from judges in this country and in the European Court to protect them from the vexatious litigants that many fear will follow decisions that we have already made?

Edward Leigh (Conservative, Gainsborough)

My hon. Friend makes an important point, and I hope that the Minister will make a similar point. There are vexatious litigants waiting out there—people with an anti-Church agenda. I assume that the Bill will be passed as it is now drafted, given the parliamentary arithmetic. Our judges will therefore not feel bound by the conservative jurisprudence that has developed in Europe over the past 40 or 50 years. They will have to apply many self-denying ordinances to ensure that they do not go down a dangerous route. I can see no way out of the dilemma. If the Bill is enacted, our judges may be bound by European jurisprudence. I do not want that, because I have great confidence in our judges.

Oliver Heald (Conservative, North East Hertfordshire)

I do not accept that there is an argument for the incorporation of the convention rights into English law, but if there were, incorporation would allow our judges to make decisions in the English context based on their interpretation of the convention. The argument continues that, if the matter proceeds to the European Court of Human Rights, at least the input of our judges will have been taken into account. Does my hon. Friend agree that it would be extraordinary if our judges were bound by previous decisions of the European Court, the opinions and decisions of the commission and decisions by the Committee of Ministers, because one of the strongest arguments for incorporation is precisely that our judges can interpret the convention afresh?

Edward Leigh (Conservative, Gainsborough)

I presume that, if the Lord Chancellor were taking part in the debate, he would make a similar point. He would say that I do not have sufficient confidence in our judges and in the precedents that have developed over hundreds of years. Our system is unique because our judges base their judgments on precedent, but there is no precedent in this case. We are opening a whole new area into which judges can walk—I shall not say wander, because that would be pejorative—and make new judge-made law. Under the fast-track procedure, an Order in Council may be used or the Government may decide that Parliament should accept such judgments and our constitution could be radically changed. That is why those of us who oppose incorporation are worried by the Bill.

Desmond Swayne (Conservative, New Forest West)

My hon. Friend brings us back to the dilemma. Our choice is between allowing European jurisprudence to continue or, as the Government have said, bringing it home to our judges. My hon. Friend expressed a preference for the more conservative jurisprudence of Europe, but is he confident that that will continue? Does he accept that many of us are reluctant to accept incorporation into English law because we believe that we would be better off renouncing our accession to the convention in its entirety?

Edward Leigh (Conservative, Gainsborough)

I do not know how European jurisprudence will develop. However, judging by recent history, it has taken the view, under margin of appreciation, that these matters are best dealt with by national courts. I understand that vexatious litigants who attack Churches and other religious organisations, charities and Church schools have had the door of the European Court shut in their face. That is why I have said that of the 45 applications to Strasbourg under article 9 only five have been allowed to proceed to the court. My original point is important. The Secretary of State for Scotland made a fundamental error when he said, "Don't worry. The convention has been around for ages, and if there had been a problem dozens of schools would have been taken to court." However the European Court is international, and such courts have always locked their doors and said that such matters are best decided by national courts. We are moving into a new and dangerous area in which we will no longer have that protection. Judges will not be bound by the traditional, conservative jurisprudence of the Strasbourg court. There will be no other court to which they can refer such matters, and they will not be able to turn away vexatious litigants. They will be unable to say, "We cannot hear your case, and it would be better dealt with by another court." They will have to hear it. By their nature, Church organisations are not rich. People put a few pennies on the collection plate, and they do not do so to fund expensive cases at the lower court, the Court of Appeal and the House of Lords. However, some vexatious litigants are well funded; that is why we are worried.

Edward Garnier (Conservative, Harborough)

I take it that my hon. Friend uses the expression "vexatious litigant" in the non-legal sense. Anyone who is deemed to be such a litigant would be shut out. I presume that he means a tiresome person.

Edward Leigh (Conservative, Gainsborough)

Perhaps I should not use that term. I should have referred to organisations that have particular agendas, are well funded and contrary to the Secretary of State for Scotland's assurances, will be able to take organisations to court. I hope that, in his winding-up speech, the Minister will deal with the worries of Church organisations.

Geoff Hoon (Labour, Ashfield)

I congratulate the hon. Member for Hertsmere (Mr. Clappison) on wringing every last nuance of alleged ambiguity out of the Bill's plain, straightforward English words. He was keen on the word "flexibility". As the hon. Member for Gainsborough (Mr. Leigh) said, I sought to expose the flexibility of the Opposition in the context of their attitude here and their attitude in the other place. I need not have troubled, because much flexibility was on display in Committee. I am not sure whether any Opposition Member agreed with the hon. Member for Hertsmere, but I may be unkindly wrong. If I am, I apologise to the hon. Gentleman. I shall deal with the matters that have been raised, but if any hon. Member feels that I have not done so thoroughly, I shall return to them. Clause 2(1) provides that a court or tribunal that is determining a question in connection with a convention right must take account of the relevant jurisprudence of the European Commission, the European Court of Human Rights and the Committee of Ministers whenever it was made or given. The purpose of the provision is to point our courts towards an interpretation of convention rights that is consistent with the interpretation in Strasbourg. In other words, we are bringing home the jurisprudence of the convention rights as well as the rights themselves. Amendment No. 4 would make taking those matters into account discretionary rather than mandatory.

Oliver Heald (Conservative, North East Hertfordshire)

Does the Minister agree that there are alternatives? One is to have uniform jurisprudence in this area throughout Europe, in which case the Bill as framed may suit. The other is that the United Kingdom courts can, in the circumstances of this country, make their own judgment and interpretation of the convention. Lord Browne-Wilkinson spoke about that distinction and said that uniform jurisprudence may not be in this country's best interests.

Geoff Hoon (Labour, Ashfield)

With respect, the hon. Gentleman puts two different points. The words "take into account" have the precise meaning of his second point. The right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) also asked about this matter. The phrase clearly allows for Strasbourg jurisprudence not to be precisely followed but to be taken into account. That is the meaning of the English words.

Oliver Heald (Conservative, North East Hertfordshire)

The Minister chooses to stress the words "take into account", but the courts may take special account of the word "must". Does he agree that the words "must take into account" impose a heavy burden on the English courts to move towards uniform jurisprudence matching that of Strasbourg? That point was made by the noble Lord Browne-Wilkinson.

Geoff Hoon (Labour, Ashfield)

The word "must" in this context clearly means that the courts must take into account the jurisprudence. That is what the words in English say. They do not mean that there has to be uniform jurisprudence. They mean that the courts must take the jurisprudence into account in reaching a decision. Let me suggest what the effect of the discretionary word "may" will be. It will mean that our courts might produce, on the same set of facts, different results because some may take the jurisprudence into account and some may not. That can hardly be sensible when we are trying to promote consistency in the decision making of our courts. If we allow courts not to take into account the jurisprudence, we shall end up, on similar facts, with different results. That can hardly be satisfactory.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I agree with much of what the Minister says, but may I probe the Government's position on this a little further? Ultimately, the Government will have in mind an objective. Is it their objective that, in the generality of cases, United Kingdom courts will follow the jurisprudence of the European Court and all the other decisions and opinions there stated, so that, in the generality of cases, the ways in which this country's courts interpret the convention will be shaped by the decisions made by the European jurisprudence?

Geoff Hoon (Labour, Ashfield)

Clearly, it is important, because the UK is bound internationally by the convention's provisions, that our law should be consistent with the general provisions of the European convention. That is already the law of the UK in relation to the international position. The Government are seeking to incorporate those international obligations into our domestic law. Therefore, it is important, ultimately, that the law of the UK, as applied by UK courts, is broadly consistent with the jurisprudence of the Strasbourg court. That is something which, if cases were pressed to their logical and ultimate conclusion, is already necessary. Having been bound internationally to satisfy the terms of the convention, there is an obligation on the UK, as a signatory state to the European convention, to translate those decisions into our domestic legislation, so there is no legal distinction between the position today and the position that will obtain once incorporation has taken place.

Oliver Heald (Conservative, North East Hertfordshire)

In his explanation, the hon. Gentleman seemed to argue that, if the factual basis of a case were the same in Greece as in Northern Ireland, Wales, Scotland or England, the outcome would have to be the same, on the basis of his present drafting. Is that really the situation?

Geoff Hoon (Labour, Ashfield)

I did not say that, and the hon. Gentleman knows full well that I did not say that. I congratulate him on his ingenuity. What I said was that the Opposition amendment would lead to a situation where it would be possible for a court in one part of the UK to apply the jurisprudence of the Strasbourg court and a court in another part not to take it into account, producing different results on the same facts within the UK. That cannot be satisfactory. It is important that courts are consistent in the material and information that they take into account. That is why the Opposition amendment is defective, and it is clear from comments by certain Conservative Members that they recognise that fact. Amendment No. 5 would require the court or tribunal to "have regard to" the convention jurisprudence, rather than take it into account. Like the hon. Member for Beaconsfield (Mr. Grieve), I do not think that there is any significant difference between "have regard to" and "take into account". I struggled hard, as he did, to see what the purpose of the amendment was. Like him, I have failed to find any distinction. The latter phrase is in the Bill, and I do not see why it needs to be changed. Amendment No. 6 would retain the reference to the jurisprudence of the European Court of Human Rights, but remove the reference to the opinions and decisions of the European Commission of Human Rights and the Committee of Ministers. I believe that the domestic courts should, when determining questions in connection with the convention of rights, be required to take into account all relevant decisions of the Strasbourg authorities, rather than only those of the European Court of Human Rights.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Will the hon. Gentleman be good enough to tell the Committee the extent to which the commission and the Committee of Ministers hear argument before expressing an opinion or making a decision? I simply do not know. Therefore, I do not know to what extent the decision results from the process of argument and debate.

Geoff Hoon (Labour, Ashfield)

It is impossible to give a precise answer to that question because, clearly, it depends on the circumstances of the particular case. An application to the commission, which first hears the application, may be so manifestly ill founded that it can be dealt with immediately, without a formal hearing. On the other hand, for those cases where clearly there is a substantial issue, there is a full hearing at present before the commission. Indeed, if the hon. Gentleman were to walk into its courtroom, he would find that it looks very much like a court and like the European Court of Human Rights. As he may know, that is one of the reasons why, after the reform of the process of the European Court of Human Rights, there will be a unified and single court from 1 November this year. Therefore, depending on the circumstances, there will be thorough argument before the commission. Indeed, its decision may look very much like a decision of the court. It is important to recognise that many cases are settled on the basis of an opinion of the commission and do not necessarily proceed to the court, but that opinion may nevertheless be extremely relevant to the interpretation of the convention by the domestic courts. Perhaps more important still, the commission is responsible currently for decisions on the basic admissibility of complaints, including whether they are manifestly ill founded, as I have mentioned. That is an important part of the body of Strasbourg decisions and one that, on any view, it is right for our courts to take into account. Amendment No. 7 would remove the reference to judgments "whenever made or given".

Dominic Grieve (Conservative, Beaconsfield)

Before the hon. Gentleman moves on, let me say that I have no difficulty with his points about the commission and its role, but I found it a little more difficult to understand why the Committee of Ministers—particularly the reference to its decisions under article 46—is slotted in at that point. He may not know the answer. There may be an obvious answer that I have completely missed, but I should be grateful to know why it was thought that that point—where one is dealing with jurisprudence, as I understand it, and previous decision making—is the appropriate place to put that reference.

Geoff Hoon (Labour, Ashfield)

The obvious answer may be that the hon. Gentleman has missed the amendment to article 46 in protocol 11. Essentially, article 46 requires the high contracting parties, the signatory member states, to undertake to abide by final judgments in the court in any case to which they are parties. Therefore, in that sense, the decision of the Committee of Ministers is on all fours with decisions of the court. That is why that particular provision appears in its place in the Bill. I was dealing with the point that the hon. Member for Beaconsfield made about amendment No. 7 and the reason for the inclusion of the words "whenever made or given". That phrase makes it clear that the domestic courts are to take into account not only existing jurisprudence of the convention institutions, but their future jurisprudence, which in due course will be influenced by the contribution of our courts. Removing the phrase would serve only to cast doubt on the duty to take account of future Strasbourg jurisprudence. I think that, during his debate with himself, he reached that conclusion in any event, but, for the avoidance of any doubt, I make that clear. Having explained to Opposition Members the weakness of the various amendments that have been tabled, I hope that they will be willing to withdraw them.

John Taylor (Conservative, Solihull)

I cannot claim to speak with any of the legal authority of so many of my distinguished right hon. and hon. Friends. I was no more than a humble high street solicitor, and the extent to which I have practised in human rights in 22 years is almost exactly nil. My interest in the debate was engaged by the remarks of my hon. Friend the Member for Gainsborough (Mr. Leigh), who began to develop his anxieties—which I share—about the distinction that we have sustained in this country between the role of Parliament and the role of the judges. This is a political judgment—I shall not try to follow the lawyers in their legal arguments. The argument of my hon. Friend the Member for Gainsborough gave rise to a political question—who appoints the judges? In this country, we have the anomalous but rather magnificent position of the Lord Chancellor—splendidly ensconced as he is. He is the complete denial of the separation of powers and the rule of law, because he is, at the same time, a member of the legislature, of the Executive and of the judiciary. His record in appointing judges has been rather good. As my hon. Friend the Member for Gainsborough said, what happens if we begin to assume forms and practices not unlike those in the United States of America? We all know what happens in terms of appointments to the Supreme Court, which are made by senators—for all practical purposes—who are divided on party lines. They examine the record of the candidate, not least his personal life—it seems to be an automatic feature of American politics that someone's private life is thoroughly turned over—and his previous political positions. During the presidency of Lyndon Baines Johnson, there was a suggestion that a man by the name of Abe Fortas be appointed to the Supreme Court, which had a vacancy in its fixed number of judges. He had developed a reputation as a liberal judge in a more junior forum, and the conservatives on Capitol hill began to argue against his appointment. In particular, they reckoned that he had a liberal record on cinema licensing and that he had let all sorts of things go through. They arranged to get all the films that Abe Fortas had permitted as film censor, and they had a constant show of the films approved by the liberal Abe Fortas. It was known as the Abe Fortas film festival. That is a fine level to which to reduce the appointment of judges.

Edward Leigh (Conservative, Gainsborough)

My hon. Friend is making a powerful point. If we go down that route, we may end up with a system similar to that of America where, from the early 19th century, the judges have claimed the last word on the constitution. Effectively, that means that, on important areas such as abortion, contraception and capital punishment, the Supreme Court and the judges, not Congress, make the law. Indeed, the Supreme Court strikes down Congress on those matters. This country may legitimise the politicisation of our judiciary, which we believe would be fatal to the way in which our constitution has developed over three or four centuries.

John Taylor (Conservative, Solihull)

I do not think that I could have put it as well as that. I am extremely grateful to my hon. Friend for that intervention and for adding that lustre to what will become an important record of this significant debate.

John Bercow (Conservative, Buckingham)

I agree with virtually everything that my hon. Friend has said, as I ordinarily do. The only exception is that, in his references to the Lord Chancellor, he was showing excessive generosity to what might be regarded by some members of the Committee as an undeserving cause. Further to the observation of my hon. Friend the Member for Gainsborough (Mr. Leigh), does my hon. Friend agree that the effect of this increasing arrogation of powers to the courts and the simultaneous stripping away of the powers of the elected legislature threaten to weaken the umbilical cord that has traditionally linked the Government of this country with the people who elect the Government?

John Taylor (Conservative, Solihull)

That is the fear at the heart of the matter. Whatever references I may have made to the Lord Chancellor were references to an office, and not to any particular incumbent. I had the great honour of serving a previous incumbent in this House, and I hold the office in high regard.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

My hon. Friend has endorsed what my hon. Friend the Member for Gainsborough (Mr. Leigh) said—that we are giving judges the final say on a range of rights. However, that is surely the consequence of any Bill of Rights. It is, in fact, the logical objection to the Bill of Rights. Once we have accepted a Bill of Rights—as we have done by adopting the convention—the question for this Committee and this House is whether the judge in question is a European-based or a UK-based judge. That is the narrow question we face, rather than the broad issue so eloquently put by my hon. Friend the Member for Gainsborough.

John Taylor (Conservative, Solihull)

My right hon. and learned Friend contends that the adoption of the convention into domestic law is the beginning of a Bill of Rights. I offer an alternative interpretation—that it is perhaps the beginning of a written constitution. He would be welcome to intervene on me on that matter if he wished to do so.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Of course it is—this is indeed a Bill of Rights. It does indeed mean a written constitution, and my hon. Friend the Member for Gainsborough—

Michael Lord (Deputy Speaker, Central Suffolk and North Ipswich)

Order. The right hon. and learned Gentleman and other hon. Members are straying further and further from the amendment. The hon. Member for Solihull (Mr. Taylor) must get back to the amendment.

John Taylor (Conservative, Solihull)

I shall get back to it—if I was ever there. The correct way for me to bring my speech to a conclusion is to remind the Committee that it is a part of our culture, our idiom and all that we have developed in this great country in our great history that the judges defer to Parliament. That point has not been made in the debate. The judges have a customary form of words with which they defer to Parliament—as seen in many law reports—which is "Parliament in its wisdom". That is the view of the judges towards Parliament, and it is a good attitude for them to take.

Edward Garnier (Conservative, Harborough)

I do not know whether my hon. Friend intended to or not, but he was on point in at least some of his remarks. Clause 2(1)(a) refers to a judgment, decision, declaration or advisory opinion of the European Court of Human Rights. If, in his 22 years as a solicitor, my hon. Friend has read some of the judgments of the European Court of Human Rights, he will have seen that, in some cases, the court says candidly that it sees the convention and the development of its rights as a constitutional Bill of Rights. The court makes no secret of that.

John Taylor (Conservative, Solihull)

I am very grateful to my hon. and learned Friend for comforting me, even at the conclusion of my speech. I take that solace and endorsement very kindly. I have—to answer his question—read judgments of the Court. Furthermore, having served briefly as a member of the Council of Europe, I have also read the convention. I remind myself that the convention was written largely by British lawyers. We were the first to initial it, and the first to endorse it. It is not exactly an alien creature, except perhaps in its new constitutional setting. My initial view of the matter generally was that part of the British people's objection to judgments made in Strasbourg was, more or less, that they were made in Strasbourg by people who were not citizens of the United Kingdom, and whose surnames made it sound as if they were not citizens of the United Kingdom. Initially, I felt that the British people would be happier with the convention, feel kinder towards it and have greater respect for its general authority if it were incorporated into domestic law, and if contentious human rights issues could be decided by English and Welsh judges in law courts in the Strand. Mr. Lord, that was my speech, and those were some of the points that I wanted to make. I am very glad of the opportunity to be able to do so.

Oliver Heald (Conservative, North East Hertfordshire)

Many hon. Members in the Chamber are lawyers. I make that confession—mea culpa.

Jack Straw (Labour, Blackburn)

It is a badge of honour.

Oliver Heald (Conservative, North East Hertfordshire)

I am pleased to hear the Home Secretary say that, and I certainly would not disagree with it. I do not know how many hon. Members in the Chamber have experience of taking human rights cases to the European Court of Human Rights. I have not. However, over many years, I have had experience of appearing in the English courts and being impressed by the quality of our judges and the way in which the law is allowed to interact with the circumstances within our island. I think that many of us want to protect the history and quality of our judges being able to interpret the law based on the conditions within our island—or in England and Wales, which is the jurisdiction in which I practise. Above all, our judiciary do not involve themselves in political decisions, or in decisions that involve interpreting high-sounding and vague principles—the type of imprecise statements in the European convention on human rights itself. In our jurisdiction, the convention has operated so that our judges have had no involvement with it. Our judges have always made their decisions in the traditional manner, although there has also been the right of recourse to the European Court of Human Rights when that is appropriate.

James Clappison (Conservative, Hertsmere)

My hon. Friend is making an extremely valuable point. Is he aware of the recent decision of Lord Justice Mustill, in which he drew attention to the great difference between the general terms in which judgments are given in the European Court of Human Rights and the more precise terms in which they are given in the United Kingdom? Does my hon. Friend agree that there can be a very big difference between the two?

Oliver Heald (Conservative, North East Hertfordshire)

I agree entirely with my hon. Friend. There is a danger that, if we import into our judges' jurisdiction the idea that vague and imprecise concepts can be the subject of their jurisprudence, and that they can reach that type of decision, the overall system may become contaminated, changing our current precise practice of the law—which has been a proud part of our history—into a much more vague, imprecise and undoubtedly high-sounding practice. Ultimately, however, it will result in political judgments being made.

Dominic Grieve (Conservative, Beaconsfield)

I do not disagree with any of the sentiments expressed by my hon. Friend. Many judgments of the European Court of Human Rights seem to be very woolly and general. Does he not think that English judges are likely to apply their minds to such decisions—as they have had to do to decisions of the European Court of Justice, which have the same quality of woolliness—and succeed in extrapolating basic principles from that woolliness? They have subsequently applied those principles very specifically—so greatly improving jurisprudence, and case law, in this case, in relation to the convention.

Oliver Heald (Conservative, North East Hertfordshire)

My hon. Friend expresses the contrary viewpoint, with which I was about to deal. If our judges are allowed to be pioneers in the matter, they will not half improve that sphere of jurisprudence across Europe, especially as it operates for United Kingdom citizens— [Interruption.] The Minister does not like the way in which I have described the argument. However, I think that he himself would accept that his argument is that our judges should have an input into the matter and be able to define and deal with cases on the basis of the European convention. I do not accept that argument. I think that there is a danger of contaminating our system and of changing it, so that it conducts not a precise legal exercise, as it currently does, but a rather vague, woolly and rather imprecise one, as the convention demands. 6.15 pm In the other place, Lord McCluskey—who is no Conservative, but, none the less, a former Law Officer—said: The present Bill does a great deal to achieve a remarkable and reasonable compromise. However, I still believe that it offends against points of fundamental principle. By incorporating into our domestic law vague, imprecise and high sounding statements of legal rights, we hand what is truly legislative power away from a democratic and accountable Parliament to an appointed, unelected and unaccountable judiciary."—[Official Report, House of Lords, 3 November 1997; Vol. 582, c. 1266.]

Douglas Hogg (Conservative, Sleaford and North Hykeham)

That is already the position. Once we subscribed to the convention, that was the consequence. The question that the Committee and the House will have continually to face is whether interpretation of existing provisions under the existing convention is best entrusted exclusively to the courts in Strasbourg or, in the first instance, to courts in the United Kingdom. Speaking for myself, at first instance, I prefer having a United Kingdom judicial interpretation to not having one.

Oliver Heald (Conservative, North East Hertfordshire)

My right hon. and learned Friend has made the contrary argument that I tried to describe. I do not know whether he accepts that that was the contrary view that I was trying to describe.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

My hon. Friend did describe it.

Oliver Heald (Conservative, North East Hertfordshire)

The question is the effect on domestic jurisdiction of incorporating such vague principles. My view—like Lord McCluskey's—is that it would be bad for our law and our tradition in the courts of England and Wales.

John Bercow (Conservative, Buckingham)

My hon. Friend is advancing a powerful argument. Does he agree that, in contemplating the fears that he has expressed, it is not necessary for Committee members to gaze into the crystal ball, when we can already for ourselves read the book? Is it not the case that—precisely as a result of the ambiguity of existing European law, of the European convention and of European treaties—much political rancour within and between member states of the European Union has resulted? The precise fear that he has expressed has already been justified and vindicated by the train of events that have occurred over many years.

Oliver Heald (Conservative, North East Hertfordshire)

There is a trade-off between the important declaratory effect of the convention itself and the price that one pays for it, which is an element of—almost certainly political—interference in the affairs of the countries that sign the convention. I accept that that is a proper concern for my hon. Friend. The Minister tried to allay my fears about the use of the word "must" in clause 2, which would be changed by amendment No. 4. If one accepts the argument made by my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg), which I have described as the contrary argument—that our judges should decide these matters—how does one achieve the type of benefits described by my right hon. and learned Friend: our judges being able to consider the convention in the light of the circumstances within the country in which they exercise their discretion—England and Wales—so that they can give us the benefit of importing their wisdom to the convention and considering local circumstances? If judges are going to be required, as the word "must" implies they will be, to take into account the judgments, decisions, declarations and advisory opinions of the European Court of Human Rights, we are going down the route of trying to achieve a sort of international jurisprudence—a uniform jurisprudence—for the convention. That is to say that the convention is not one that all countries ratify and are then able to interpret according to their own individual circumstances, but one that is introduced and results in a case in Greece determining the outcome of a case in England. I would argue against that, if one accepts the argument advanced by my right hon. and learned Friend the Member for Sleaford and North Hykeham, which I do not, one has to say that it is important that English judges should be able to take account of English conditions when making their decisions. The mandatory quality of the word "must" is wrong—the word should be "may".

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I do not like to defend the Parliamentary Secretary, but I shall in this case. He will say, rightly, that the word "must" requires a court to take into account—have regard to—the decisions about which we have been talking, and that it would be impossible to have a situation in which the courts in Scotland and in England might or might not do so. There must be a duty on the courts to have regard, but the phrase "to have regard" does not oblige the courts to adopt. There is a difference between "having regard to" and "being bound by", and the form of words used does not require the courts to be bound by the decisions in question.

Oliver Heald (Conservative, North East Hertfordshire)

I fully appreciate my right hon. and learned Friend's point—that the fact that the courts must take account of those decisions does not mean that they have to follow the judgment. However, my point, which is much the same point as was made by the noble Lord Browne-Wilkinson, is that, in practice, there is encouragement to follow and produce a uniform jurisprudence once one has got as far as saying "must". The argument my right hon. and learned Friend deploys makes my point for me, because Scotland is a separate jurisdiction, and, once one has made the concession of saying that a factual basis in one country for legal purposes must mean that the outcome—or at least the way in which the jurisprudence is dealt with—is the same in another country, one is saying that there should be a uniform jurisprudence. I do not accept that. The best way in which the convention could be incorporated in English law, although I do not want that to happen, would be to allow the English courts to look at the circumstances in England and apply their own judgment as to whether or not to take account of the judgments, decisions, declarations or advisory opinions of the European Court of Human Rights. What the courts will have to take account of is the wording of the convention itself, and I do not see why we cannot have a system in which each court in each country that has the convention can make its decisions in the light of that country's own circumstances and traditions.

Geoff Hoon (Labour, Ashfield)

I am sure that the hon. Gentleman believes all the rhetoric he is using, but will he put it to the test by applying the same arguments to the decisions of the European Court of Justice at Luxembourg?

Oliver Heald (Conservative, North East Hertfordshire)

The Minister's point is not really valid—he laughs, but I have seen him laugh and enjoy himself many times over the years. The European Union is a form of grouping very different from that which takes in the countries that have signed the European convention on human rights—there may be parallels, but the body and the body of law are not the same.

Edward Garnier (Conservative, Harborough)

May I help my hon. Friend by pointing out that the Minister's point is false? Under the treaty governing the European Union, which deals with the European Court of Justice, we are obliged to subordinate our legislation to that of the decisions of the European Court of Justice, so there is no genuine parallel of the sort suggested.

Oliver Heald (Conservative, North East Hertfordshire)

I am grateful to my hon. and learned Friend for that point, which makes it game, set and match.

Edward Leigh (Conservative, Gainsborough)

May I, too, assist my hon. Friend in rebutting the attack on his arguments by our right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg)? My right hon. and learned Friend appears to be suggesting that it is better to have British judges making the decisions than to have European judges making them. Can my hon. Friend the Member for North-East Hertfordshire (Mr. Heald) quote the remarks made by a distinguished former Law Officer in a previous Labour Government, Lord McCluskey, who dealt precisely with that point? He started by saying that we were effectively "empowering judicial legislation", and that, in general terms, we would be giving the same power to judges here as are enjoyed by judges in the United States. He went on to make a powerful point, which answers the one made by my right hon. and learned Friend, saying: Parliament will at once move to bring the law into line with what judges say the convention says it is. In fact, Parliament has no option if the Strasbourg Court so decides. He went on: The certain aim of British judges will be to interpret the convention in the way that they think the Strasbourg Court will. Otherwise, they will be overturned in Strasbourg."—[Official Report, House of Lords, 3 November 1997; Vol. 582, c. 1267.]

Oliver Heald (Conservative, North East Hertfordshire)

That is such an eloquent statement of my point that I need not add to it. In answer to the Minister's rather footling point, my hon. and learned Friend the Member for Harborough (Mr. Garnier) said, rightly, that there was no direct and clear parallel between the European Court of Justice and the European Court of Human Rights. The classic statement of that was made in the other place by the Lord Chancellor, who conceded that the United Kingdom was not … bound…to follow the court's judgments in cases to which it has not been a party".—[Official Report, House of Lords, 19 January 1998; Vol. 584, c. 1271.] That is not the case in respect of the European Court of Justice, and I am surprised that the Minister, with all his years of learning in the law, was not aware of that.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I am sorry to speak again—although this is Committee, so one is entitled to do so—but I should like to respond to what my hon. Friend the Member for Gainsborough (Mr. Leigh) said. His analysis of the role of the courts in this country runs something like this: the courts in the United Kingdom will interpret the convention in the way they think that the court in Strasbourg will interpret it; and therefore no benefit will flow from having brought the convention back to this country. That is his position, and it is one that deserves serious attention, because it is advanced by my hon. Friend and supported by others. I do not agree with that position, because the doctrine of margin of appreciation means that the Strasbourg court will itself place great weight on the interpretation that the courts in this country place on the language of the convention. Therefore, the effect of bringing the convention back to the United Kingdom will be to give the courts of this country an important—indeed, paramount—role in the interpretation of the convention in so far as it bites on circumstances in this country. It is a mistake to think that the courts in this country will simply seek to adopt what they deem would have been the ultimate decision made in Strasbourg, had the Strasbourg court determined the matter in the first instance. Therefore, on that point, I disagree profoundly with my hon. Friend the Member for Gainsborough.

James Clappison (Conservative, Hertsmere)

This has been a very interesting and useful debate, on an important subject that is well worth exploring. I shall deal with a few of the points raised by my hon. Friends. My hon. Friend the Member for Maidenhead (Mrs. May) made a very important point about the effect of decisions taken some time ago, and whether equal weight should be given to them. It is common sense that we should not be bound too much by practices of the past. Although my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) made certain technical points about the amendments, he agreed with the thrust of what we are seeking to do and the issues that we are trying to explore. My hon. Friend the Member for Gainsborough (Mr. Leigh) made some very important points arising from his general concern about the approach of the European court and his wish to see a similarly cautious approach following incorporation. The Minister was not entirely correct to suggest that European Court jurisprudence will be the same following incorporation. The courts have decided in several cases that they cannot take jurisprudence into account as though it had already been incorporated into our law. In the fairly recent Brind case, as well as many others, the higher courts have made that explicit. They can use jurisprudence as an aid to interpretation, because they have taken the view that Parliament would not want to legislate inconsistently with the convention, but they have not taken the view that the position now is the same as it would be following incorporation should we eventually decide to incorporate the convention. My hon. Friend the Member for Solihull (Mr. Taylor) made an important speech, which I enjoyed. His remarks were the antidote to the comments of all those who speak about bringing rights home—as though they had ever left this place. This Parliament is the guarantor of our rights, and we have faith in its record as the defender of our liberties. Without wishing to be prejudiced against the European convention on human rights, the mere fact that a document contains rights and describes itself as a Bill of Rights or a written guarantee of rights is, on historical evidence, no guarantee of those rights. The other day I read a document that contained a very fine statement of human rights. It guaranteed, it said, freedom of speech, freedom of movement and freedom of thought and conscience. Then I saw that it was the constitution of the Soviet Union of 1936. I do not think that any of us would judge that as the fountainhead of human rights. I listened carefully to the Minister. He has taken the debate on the words "must take into account" a little further since it was discussed in the other place. He began by saying that there was no difference between our amendments and what is in the Bill, but then said that the amendments were technically defective. There is a slight contradiction in that. None the less, we got out of the Minister in the end the measure of flexibility for which we have been looking. It has been our objective all along to try to ascertain just how flexible the Government are prepared to allow our courts to be through the use of the term "must take in account". Since the matter has been taken a little further, I do not propose to press the amendment to a vote. I beg to ask leave to withdraw the amendment.

Geoff Hoon (Labour, Ashfield)

I beg to move amendment No. 119, in page 2, line 18, leave out 'Lord Advocate or'.

Geoff Hoon (Labour, Ashfield)

The amendments are purely technical, arising out of the Scotland Bill and the transfer of powers to the Scottish Executive when it is established. I shall try to explain the matter as briefly as I can. The Scotland Bill will provide for any powers that the Lord Advocate has to make subordinate legislation to be transferred either to Scottish Ministers or to the Secretary of State for Scotland, depending on whether they relate to devolved or reserved matters. Those include the power to make procedural rules relating to tribunals, which is referred to in clauses 2(3)(a) and 7(11)(b) of the Human Rights Bill. The effect of the technical amendments is to remove references to the Lord Advocate in those clauses, and therefore to pave the way for the transfer of powers that will take place when the Scottish Executive comes into being.

James Clappison (Conservative, Hertsmere)

I appreciate that the amendments are technical. The Minister has explained that references to the Lord Advocate concerning the rule-making power are to be omitted because they are contingent on devolution in Scotland. Will he assist the Committee by telling us who will end up with that rule-making power following these technical amendments?

Geoff Hoon (Labour, Ashfield)

That will clearly depend on whether the matters are devolved or reserved. The Scotland Bill clearly indicates which are which. Amendments to the Human Rights Bill are necessary in order to ensure that, depending on whether the matters are reserved or devolved, they go in the appropriate direction.

Dominic Grieve (Conservative, Beaconsfield)

That is not quite right—is it? Is not the reality that the Government have not sorted out where the powers are to lie under the devolved legislation? The Scotland Bill does not make it clear where some of the powers will reside. I thought that that was unfinished business.

Geoff Hoon (Labour, Ashfield)

The Scottish legislation provides that the Lord Advocate and the Solicitor-General for Scotland will cease to be members of the United Kingdom Government, and become members of the Scottish Executive. It is therefore necessary, in the context of references to the Lord Advocate, to ensure that the powers enjoyed are either exercised in relation to reserved matters by the Secretary of State for Scotland or such other appropriate Minister as he or she should ultimately designate, or dealt with as devolved matters through the Scottish Executive.

James Clappison (Conservative, Hertsmere)

If the Minister is saying that the powers will be either devolved or reserved, will he tell us which the Government wish them to be?

Geoff Hoon (Labour, Ashfield)

It is not a matter for the Government to wish or desire. The Scottish legislation specifies what is devolved and what is reserved. The amendments are purely consequential on, and, in effect, tidy up, matters that have arisen from that legislation.

James Clappison (Conservative, Hertsmere)

I should like to highlight a point that I made in a brief intervention on my hon. Friend the Member for North-East Hertfordshire (Mr. Heald). We, and therefore the judges, are entering new territory. It is important that we spend time getting this right, and recognise the difficulties that judges will face in interpreting the European legislation and how it will mean a change in the judicial way of thinking. In the course of debates on clause 2, we have tried to create a partnership between judges and Parliament, of which it is important for us to keep sight. We shall return to the theme.

Theresa May (Conservative, Maidenhead)

I should like to refer to debates on the first allotted day in Committee, which relate to clause 2 and amendment No. 137. I hope that the Minister will reiterate that the Government have taken on board the concerns expressed by my hon. Friend the Member for Gainsborough (Mr. Leigh) and others on the extent to which the concerns of the Churches should be taken into account in the context of the Bill. A long debate in the other place focused on whether, in taking into account various aspects of decisions in clause 2, the Bill should also require the issue of religious faith to be taken into account. The Home Secretary made it clear that the Government were very alive to the concerns that the Churches had expressed. It is important that we do not allow the debate on clause stand part to pass without asking the Government to reiterate their assurance. The Churches are greatly concerned about the impact of the Bill. I hope that the Minister will be able to assure us again.

Geoff Hoon (Labour, Ashfield)

I am delighted to give the Committee that assurance, in response to the hon. Member for Maidenhead (Mrs. May). My right hon. Friend the Home Secretary set out precisely and very clearly the Government's position during debates on clause 1. I am entirely happy to endorse it.

LEGISLATION

James Clappison (Conservative, Hertsmere)

I beg to move amendment No. 9, in page 2, line 37, leave out 'possible' and insert `reasonable'.

James Clappison (Conservative, Hertsmere)

The amendments are exploratory. Clause 3 deals with the way in which United Kingdom courts are to interpret legislation following incorporation. That is an important issue, and we want to ensure that the clearly expressed will of Parliament is heeded if incorporation takes place. Amendment No. 13 explores that issue. We are conscious of the fact that it reflects a current pre-incorporation practice of the courts, in that the convention can be relied on as a guide to the interpretation of Acts of Parliament where the domestic court finds that the relevant statutory provision is ambiguous. That rests on the basis that Parliament can be presumed to have legislated in a manner consistent with Britain's treaty obligations. Next we wish to explore how the courts are to go about what is required of them under clause 4. Earlier this afternoon, we were told that the Government were keen on plain English and consistency in language, and that words had to be given their ordinary meanings, so we were slightly intrigued to see the term "read and given effect" in clause 3. We were even more intrigued when we looked at the heading—"Interpretation of legislation"—and we wondered why the body of the clause did not simply use the term "interpreted" rather than the term "read and given effect". Is there any significance in the difference? We look to the Government to tell us what, if anything, is meant by it. Amendment No. 101 explores the question of interpreting legislation in a way that reflects the intentions of Parliament. We think that that is important. The other amendments in the group are similar. We want to ensure that the will of Parliament is not overridden in inappropriate circumstances. If the courts find that legislation is incompatible, the proper course under the Bill is for a declaration of incompatibility to be made. Although new clause 8 is important, I hope that the Committee will forgive me if I speak only briefly about it, because we have already been through the arguments about the margin of appreciation, which we regard as an important doctrine. We want to put those words in the Bill because we want that doctrine to be reflected in our courts when they apply the European convention. The amendments explore important issues, and we look to the Government for a constructive and clear response.

Theresa May (Conservative, Maidenhead)

I shall concentrate my brief comments on amendment No. 101 and new clause 8, because both are at the heart of the concerns expressed by some of my right hon. and hon. Friends in our earlier debates, both on the first day in Committee and today, about the relationship between the courts and Parliament. The importance of that relationship was ably described by my hon. Friend the Member for Solihull (Mr. Taylor), who, in an earlier debate, talked about the way in which it has stood the test of time and maintained human rights in this country for many hundreds of years. We should retain that relationship, and there is a genuine concern about the extent to which the implications of the Bill will strike at its heart, and at the distinction of powers between the judiciary and Parliament. As my hon. Friend the Member for Hertsmere (Mr. Clappison) said in his summing up of the first group of amendments tabled to clause 2, Parliament has been the defender and protector of human rights in this country for many years—a position that has stood the test of time—yet there is concern about the Bill's impact on the role of Parliament as the protector of human rights in the United Kingdom. The Government have stated their position several times—that they do not intend that relationship to be usurped and that they respect the role of Parliament as it has been described. The intention of amendment No. 101 is to make the role of Parliament clearer on the face of the Bill and to draw attention to it. It would insert words into clause 3(1) so that it would read: primary legislation and subordinate legislation must be read and given effect in a way which reflects the intentions of Parliament", as well as in a way which is compatible with the Convention rights. 6.45 pm It is important to explore that issue with the Government and to ensure that their intentions are clear. We reiterate the importance of the requirement that the will and intentions of Parliament should be taken into account. The Bill will give more powers to the judiciary in this country, and it is important that we continue to explore the relationship that will exist after enactment, assuming that the Bill is passed—it does not need the power of Mystic Meg to guess that it will be passed. The intentions of Parliament should be referred to in the Bill. If I understand the notes on clauses correctly, the Government have conceded that there comes a point when an interpretation must yield to the intention of Parliament notwithstanding that, in the result, the legislation is incompatible with the Convention rights. Amendment No. 101, like several of our other amendments, would put words in the Bill to give effect to the intention that the Government have expressed. Many references have been made to the concept of the margin of appreciation. New clause 8 would specify on the face of the Bill that full regard shall be had to the margin of appreciation". I believe that the importance of that concept is accepted on both sides of the Chamber, but, as the Bill stands, it is not expressly referred to or explicitly stated. The European Court of Human Rights has already allowed for the concept of the margin of appreciation, to respect the sovereignty of each nation state that is signatory to the convention. If new clause 8 were added to the Bill, rather than our simply accepting that that practice has occurred over the years, the concept would appear explicitly in the Bill. That would be useful in drawing to the attention of the United Kingdom courts that issue and the importance that Parliament attaches to it—an attitude that is shared and respected throughout the House of Commons. I therefore hope that the Government will look favourably on new clause 8.

David Maclean (Conservative, Penrith and The Border)

I wish to speak briefly on this group of amendments. I am deeply concerned about the proposal that the judiciary should have the right to strike down subordinate legislation without any reference to Parliament. The Committee will be fed up with hearing me say, as I now do for the third time in two days, that the Home Secretary is a reasonable man—

David Maclean (Conservative, Penrith and The Border)

I beg your pardon, Mr. Lord. I wished to talk about amendment No. 17.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

The use in the clause of the word "possible" causes me some concern, as it may encourage the courts to give an unduly artificial interpretation to statutory language. I support amendment No. 9, as it substitutes "reasonable" for "possible". An argument that may appeal to the Home Secretary is that, once one has started in one statutory context to give language an artificial meaning, there is a danger that it could serve as a precedent and be carried over into other interpretations in a different context: a word that has a particular meaning in one statute may serve as a precedent for the interpretation of that word in a different context. I prefer the word "reasonable" to "possible", as suggested in the amendment tabled by my hon. Friend the Member for Hertsmere (Mr. Clappison). A declaration of incompatibility is the proper remedy if the statute cannot properly and reasonably be interpreted in a way that is compatible with the convention. A different point arises from new clause 8, on which I shall follow from where my hon. Friend the Member for Maidenhead (Mrs. May) left off. It is clear and right that a court should be slow to depart from the decisions of a Parliament in concluding that a Parliament has derogated from convention rights—that has long been accepted in the jurisprudence of the European Court of Human Rights. I think it right that that should be specified in the Bill, as the Bill will guide the United Kingdom courts in their approach to the convention. The statute should expressly state that the courts should have due regard to the expressions of parliamentary will, in the hope that the courts will be slow to hold that Parliament has departed and derogated from convention rights. I believe that there is an advantage in specifying in the Bill the concept of a margin of appreciation.

Paul Stinchcombe (Labour, Wellingborough)

I wish to reply to some of the points made by the right hon. and learned Member for North Hykeham and Sleaford—

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Sleaford and North Hykeham.

Paul Stinchcombe (Labour, Wellingborough)

I was close. The points made by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) were seductively made, but they were wrong in principle and dangerous in effect. Clause 3(1) and clause 6(1) are the provisions that truly give the Bill teeth—if rights are to be brought home, it will be precisely because of those provisions. Clause 3(1) states: So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with Convention rights. Paragraphs 2.7 and 2.8 of the White Paper "Rights Brought Home" make it clear that those words are intended to go beyond pre-existing law: This goes beyond the present rule which enables the courts to take the Convention into account in resolving any ambiguity in a legislative provision. The courts will be required to interpret legislation so as to uphold the Convention rights unless legislation itself is so clearly incompatible with the convention that it is impossible so to do. It is precisely because of the opening words of the clause and their effect that convention law will be moved forward in this country in a way that I believe is desirable.

Dominic Grieve (Conservative, Beaconsfield)

I understand the hon. Gentleman's point but, like my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg), I want to know whether the construction of those words will force courts into making artificial interpretations. Would it not be better for the courts to tell Parliament that primary or subordinate legislation was incompatible with the convention than—as might happen under the current wording—to do painful gymnastic exercises to make existing legislation fit convention principles when it cannot?

Paul Stinchcombe (Labour, Wellingborough)

I appreciate the hon. Gentleman's argument, but I reject it—I shall invite my right hon. Friend the Home Secretary to confirm that clause 3(1) was constructed in accordance with paragraphs 2.7 and 2.8 of the White Paper precisely to avoid such problems. Hon. Members may know that there has been some academic discussion about the opening words of the clause. Sir William Wade, who is a member of the chambers of which I was a member before I came to the House, and the hon. Michael Beloff, who is head of those chambers, have publicly disagreed in academic articles and speeches about the meaning of the words. It is now a perfectly appropriate time, given Pepper v. Hart, for my right hon. Friend the Home Secretary to resolve the matter once and for all. We must make it clear that the words in clause 3(1) mean what they say and what we said that they meant in paragraph 2.7 of the White Paper—the words go beyond the present rule and, wherever any interpretation of legislation can be made so as to uphold convention rights, that is what the courts must be invited to do.

Desmond Swayne (Conservative, New Forest West)

I hope that the Home Secretary will confirm, as the hon. Member for Wellingborough (Mr. Stinchcombe) requested, that that is the plain meaning of the words. I fear that the courts will avoid the clear parliamentary intention of legislation and do the gymnastics that my hon. Friend the Member for Beaconsfield (Mr. Grieve) described to accommodate the word "possible"; I fear that they will place a construction on legislation to make it compatible with the convention when it clearly is not, so circumventing the proper remedy in the Bill, which is to bring the matter back to Parliament.

Jack Straw (Labour, Blackburn)

This has been a short, but interesting, debate on one of the most fundamental issues about the method that we have chosen to incorporate the European convention on human rights in British law. As hon. Members from both sides of the Chamber will understand, there was considerable debate inside the Labour party and between the Labour party and the Liberal Democrats before the election, and much consideration by the Government after the election, about the form that incorporation should take. As the White Paper makes clear, we considered how other common law countries had incorporated Bills of Rights. We examined how Canada and New Zealand—both outside the continent of Europe—had dealt with similar issues and whether a Bill of Rights could appropriately be entrenched as a basic and fundamental law with a higher status than the law passed by their Parliaments. We decided to reject Canada's approach, which was, in effect, to establish a fundamental law that, in certain circumstances, took precedence over laws passed by its Parliament. We also considered the New Zealand model. We came up with our own approach—it is a British answer to a British problem—fundamental to which is the sovereignty and supremacy of Parliament. I have never believed—my colleagues share this view—that it would be sensible in this country to have a supreme court that could override the will of Parliament. Indeed, such a system would be extremely dangerous without a written or codified constitution or—as applies in the United States and almost all other constitutions—the mechanisms to override the fundamental law as laid down by a supreme court. It would mean that judges in a British supreme court would be accorded more power than is, in practice, accorded to US Supreme Court judges, whose decisions can, in the final analysis, be overridden by the popular will through an amendment to the constitution—without such a facility to override judges who are unelected or who were elected many years before, the democratic processes cannot operate effectively. For that reason, we decided that, while of course the courts would have clear powers to apply the European convention—without that, we would not be bringing rights home—ultimately Parliament's will would prevail. We have applied that in a number of ways which I shall place on record before answering the specific points that have been raised by hon. Members on both sides of the Chamber. Clause 19 requires a Minister introducing a new measure to make a statement to the effect that in his view the provisions of the legislation are or are not compatible with the Convention rights or say that he is unable to make such a statement. 7 pm Nothing could be more compatible with the sovereignty of Parliament than the fact that the Bill incorporating the convention on human rights refers to the possibility—that may happen week by week—that Ministers have to apply it to future legislation. That is not to say that they have to force future Bills into the apparent straitjacket of the convention; they simply have to make a statement to the House on whether a measure is compatible with the European convention, and therefore with the Bill. Obviously, it will be incumbent on Ministers—certainly under the present Administration—to do their best to ensure that Bills are compatible with the convention. Indeed, that practice was followed for many years by the previous Administration. They also subscribed to decent human rights, and for the practical reason that, if Bills were introduced that were knowingly incompatible with the convention, the Government could easily end up in trouble, if not with United Kingdom courts, with the European Court of Human Rights, which in practice has a facility to override Parliament so long as Parliament decides to accede to the convention. That is the first way in which we respect the sovereignty of the House. The second is through clause 3, which is very clear. I should let the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) know that we will go on to discussing its detailed wording—it was easier to refer to his constituency when he represented the former Prime Minister's home town, which was not such a mouthful. Clause 3(1) states: So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way that is compatible with the Convention rights. Subsection (2)(b) makes it absolutely clear that This section … does not affect the validity, continuing operation or enforcement of any incompatible primary legislation". The issue of incompatibility of legislation can be addressed only by the higher courts. I should explain to the hon. Member for Maidenhead (Mrs. May) that no group of senior judges looking at the clause will come to any other view but that the intention of Parliament is that there may be legislation that is incompatible with the convention—either in future or previously—and, that even if it is found to be incompatible, it will remain in force unless and until the House, by accelerated or normal procedure, decides otherwise.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

The Home Secretary has been making the point that, in this context, the Government are keen not to undermine parliamentary sovereignty. Does he understand that Opposition Members who have studied the argument would have much greater confidence in that approach had he not adopted the remedial order procedure set out in the Bill, which provides for affirmative resolutions for changing primary legislation? We would feel very much happier if he gave sympathetic consideration to amendment No. 64 to clause 10. We would then have much greater confidence in his assertion that he is not seeking to undermine parliamentary sovereignty.

Jack Straw (Labour, Blackburn)

The right hon. and learned Gentleman raises an important point that he also made on Second Reading. I have been considering it, but I shall make no promises, except to say that I found it a cogent argument. It is by no means the only occasion on which the right hon. and learned Gentleman has made a cogent argument, and I listened to him with great care. We shall discuss the matter in more detail when we reach clause 10, but our intention is that the procedure under clause 10 should be used not to bypass the will of the House, but simply to deal with practical problems that may arise. I hope to provide the right hon. and learned Gentleman with a satisfactory explanation when we reach clause 10 and, if I cannot, I shall take further account of his remarks. Even on the most dismal interpretation of clause 10, the will of the House still prevails. It may be a truncated procedure, but it certainly does not give the courts the power to say what the law of the land should be. We are seeking to provide a truncated procedure with rather more care than the previous Administration took with the famous Henry VIII clauses on deregulation, for example. I shall now respond to some of the specific points that have been raised during the debate, although I hope that Opposition Members will accept that I have dealt with the gravamen of their points in some detail. Amendment No. 9 would require legislation to be construed in accordance with convention rights so far as it is "reasonable" to do so, rather than so far as it is "possible" to do so. The likely result—and no doubt the intention—is that the courts would not go so far down the road of interpreting legislation as they would under the terms of clause 3 as it stands. As I have said, we want the courts to strive to find an interpretation of legislation that is consistent with convention rights, so far as the plain words of the legislation allow, and only in the last resort to conclude that the legislation is simply incompatible with them. The Opposition want the courts to arrive somewhat earlier at the conclusion that the legislation is simply incompatible with the convention. I cannot see what could be gained by that, bearing in mind our responsibilities under the convention, apart from the prospect of more cases ending up in Strasbourg because fewer people would be satisfied with the interpretation of the United Kingdom courts.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

There are at least two disadvantages to the Home Secretary's argument. First, the courts may be required to give a strained meaning to language, and that in principle is not a good thing. Secondly, if they give a strained meaning to language in the context of this legislation, it could serve as a precedent that reads across and guides courts in their interpretation of language that is wholly outwith the statute under discussion.

Jack Straw (Labour, Blackburn)

The right hon. and learned Gentleman is right on his second point. The legal section of the House of Commons Library, like any other law library, has wonderful tomes—of which, no doubt, the right hon. and learned Gentleman has made good use, as I did in my brief practice—of words and phrases judicially interpreted. Of course interpretation by one of the higher courts of a particular word will read across into many other circumstances, often anticipated. That is why, as the right hon. and learned Gentleman knows better than I do, parliamentary counsel is so keen on one word rather than another. I am not convinced, however, by the right hon. and learned Gentleman's first point that the courts will contort the meaning of words until they lose their meaning altogether. In many cases, particularly in respect of statutory interpretation, the whole task of the court is not to make up the law, but to say what it means where that is not clear or where its application in particular circumstances is not clear. The courts are well versed in the interpretation of the law and of Parliament's intention. Let me say in reply to a point made by the hon. Member for Maidenhead that there was a time when all the courts could do to divine the intention of Parliament was to apply themselves to the words on the face of any Act. Now, following Pepper v. Hart, they are able to look behind that and, not least, to look at the words used by Ministers. I do not think the courts will need to apply themselves to the words that I am about to use, but, for the avoidance of doubt, I will say that it is not our intention that the courts, in applying what is now clause 3, should contort the meaning of words to produce implausible or incredible meanings. I am talking about plain words in what is actually a clear Bill with plain language-with the intention of Parliament set out in Hansard, should the courts wish to refer to it.

Dominic Grieve (Conservative, Beaconsfield)

Perhaps the clause should say "possible and reasonable", but the right hon. Gentleman might then say that the courts are always supposed to be reasonable, so it is not necessary to include that word.

Jack Straw (Labour, Blackburn)

Ever since the Wednesbury decision, the courts have chided others for being unreasonable, so it is difficult to imagine them not being reasonable. If we had used just the word "reasonable", we would have created a subjective test. "Possible" is different. It means, "What is the possible interpretation? Let us look at this set of words and the possible interpretations." My bet is—without putting this in the Bill—

James Clappison (Conservative, Hertsmere)

How much?

Jack Straw (Labour, Blackburn)

More than I have placed on a horse in the Derby, but the amount remains a matter between me and my bookmaker. My bet is that the courts will say that they will adopt a reasonable approach. As the hon. Member for Beaconsfield (Mr. Grieve) said, they would be the last to admit to adopting an unreasonable approach. I am comfortable with the words in the Bill and I do not believe that the courts will contort them in the way that hon. Members implied. I come back to the point about parliamentary sovereignty. If the higher courts come up with an interpretation that makes the intention of Parliament risible and means that legislation is applied in a way that is unreasonable and has ridiculous results, it is open to the House to change the decision. For example, in the Crime and Disorder Bill we are overturning the decision of the court in Regina v. Khan—

James Clappison (Conservative, Hertsmere)

No, you are not.

Jack Straw (Labour, Blackburn)

With great respect, we are; we are abolishing the concept of doli incapax—[Interruption.] I hope that we are overturning Khan, but I will not go any further into that—[Interruption.] It is open to the House—it is its ultimate right—to change a decision. My hon. Friend the Member for Wellingborough (Mr. Stinchcombe) asked which of the academics I backed. I back those who have read the plain words in this clause and take the view that it moves us on from the way in which the courts currently interpret convention legislation. Hon. Members should feel reassured by the fact that our courts have had quite a lot of experience in interpreting the convention. Where there is ambiguity, they come down on the side of the convention. Just before the general election, I amused myself by reading The Times law reports. I try to do that most days. There was a very technical report about the interpretation of a contract. To resolve the issue, the Court of Appeal had wisely looked at the European convention—this was a long time before there was any prospect of its being incorporated—to help it to form a view. The courts have experience. We are moving forward, and we intend to ensure, as the wording makes clear, that, in so far as it is possible, primary and subordinate legislation is read and given effect in a way that is compatible with convention rights. I think that I have dealt with most of the points raised. In conclusion, I want to deal with new clause 8. It would require the courts, in considering whether legislation was compatible with convention rights, to have full regard to the margin of appreciation accorded to states by Strasbourg institutions. Presumably that is intended to signal to the courts that they should recognise the primary responsibility of Governments for detailed decisions on how convention rights are given effect in domestic law. The doctrine of the margin of appreciation—it is an important one—recognises that a state is allowed a certain measure of discretion, subject to European supervision, when it takes legislative, judicial or administrative action in respect of some convention rights. In other words, it is best placed to decide in the first place whether—and, if so, what—action is required. My first point about the margin of appreciation is that it is more relevant to some convention rights than to others. It is especially relevant to articles 8 to 11, which enable restrictions to be placed on rights where that is necessary in a democratic society, for any one of a number of reasons. It is less relevant to some of the other articles, for example, article 2 on the right to life, and article 3 on the prohibition on torture or inhuman and degrading treatment or punishment. 7.15 pm The doctrine of the margin of appreciation means allowing this country a margin of appreciation when it interprets our law and the actions of our Governments in an international court, perhaps the European Court of Human Rights. Through incorporation we are giving a profound margin of appreciation to British courts to interpret the convention in accordance with British jurisprudence as well as European jurisprudence. One of the frustrations of non-incorporation has been that our own judges—for whom I have a high regard, as, I believe, do Opposition Members—have not been able to bring their intellectual skills and our great tradition of common law to bear on the development of European convention jurisprudence.

Dominic Grieve (Conservative, Beaconsfield)

I agree with every word that the right hon. Gentleman has said on this matter. It is why I favour incorporation. However, it is interesting to note that, although that is clearly the intention—and I believe will be the result—this Bill is statute, not common, law. Where does it spell out to the judiciary that the margin of appreciation is available to it in the way that it interprets the Bill? This is an interesting point and I would welcome the right hon. Gentleman's comments on it. We may have implied that that is what the courts should do, but where is that stated in the Bill?

Jack Straw (Labour, Blackburn)

The margin of appreciation is laid down in many commission and court judgments. Therefore, it is spelt out in the meaning of clause 2. That is the direct answer to the hon. Gentleman's point. In addition, and as the financial memorandum makes clear, we will spend £5 million on judicial training. I am not making a trivial point. A great deal of time, effort and money will go into the training of the judiciary. I know from my contacts with senior members of the judiciary that they are already alive to the need to bring themselves up to speed on this important development of our law.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Is it the right hon. Gentleman's view that the British courts should be very slow to find that, where Parliament has expressly dealt with an issue involving convention rights, the decision of Parliament is a derogation, a departure or a diminution of convention rights? The working assumption should be that, when Parliament has addressed a matter, it has not derogated from convention rights. If that is the approach that the courts should adopt, would it not be helpful to put that concept—perhaps differently expressed—in the Bill?

Jack Straw (Labour, Blackburn)

We are working that matter not only into the drafting of future legislation, but into the presentation of Bills by Ministers. That is the purpose of clause 19. When a Bill comes before Parliament, the Minister will give Parliament his best view, based on advice from officials and, above all, parliamentary counsel, on whether it is compatible with the convention. That was the practice for some time under the previous Conservative Administration. I think that it would be impossible to say that all legislation, of whatever antiquity, was passed in a manner compatible with the convention. It is, by definition, impossible to say that of legislation passed before the convention was even a gleam in the eye of a former Conservative Lord Chancellor. It took some decades before the House, our courts and the parliamentary draftsmen became sensitised to the need to ensure compatibility. It was not until the changes of 1966, allowing individual petition to the European Commission, that Governments began to take on board the need for compatibility in the way in which they went about their daily business and in the drafting of Bills. That is my answer to the right hon. and learned Member for Sleaford and North Hykeham.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

It is an historical answer.

Jack Straw (Labour, Blackburn)

It is. As far as the future is concerned, we are of course inviting the courts to work on the assumption that the House has applied itself to ensuring that legislation is compatible with the convention, except where a Minister comes to the House to say that there are overriding reasons why it is not, to give those reasons and to ask the House to agree the legislation in any case.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

The right hon. Gentleman has made a sound point, and I concede that he is right. However, I see no objection to the concept of incorporating into the Bill the proposition that, for prospective legislation, the courts should proceed on the assumption that there has not been a derogation of convention rights where Parliament has expressly addressed that question. I see certain advantages in doing that.

Jack Straw (Labour, Blackburn)

We are achieving the right hon. and learned Gentleman's purpose by a different route through clause 19, which we shall discuss when we reach it. I ask him to read that and to contribute at that stage. I have gone into some detail to answer the important points that have been made. In the light of what I have said, I hope that the Opposition will withdraw the amendment.

James Clappison (Conservative, Hertsmere)

This has been an interesting debate, and the Home Secretary, having rightly acknowledged that important points have been raised, has endeavoured to deal with them. It has been reasonable—if I dare use that word—to explore these issues. My first reaction to the proposals was similar to that of my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg). Having considered the words used in the clause, we were concerned by the prospect of courts straining to give legislation an unrealistic interpretation, and by the possibility that the clearly expressed will of Parliament might be lost in that process. In those circumstances, it would have been preferable for the courts simply to make a declaration of incompatibility, which would have resulted in legislation returning to the House. I drew some encouragement from the Home Secretary's initial remarks. I respected the clearly argued contribution of the hon. Member for Wellingborough (Mr. Stinchcombe), who drew on academic authorities. The Home Secretary's response against that background gave me some encouragement about the importance that the Home Secretary attached to parliamentary sovereignty. The Home Secretary clearly feels that parliamentary sovereignty has been preserved in the Bill. We have reservations about clause 10, to which the Home Secretary referred, and we may put some of his comments to my right hon. and learned Friend the Member for Sleaford and North Hykeham in the bank for when we debate that. I appreciate that the Home Secretary made those remarks quite deliberately, but they may, less deliberately, have implications for the next group of amendments, which relate to the striking down by courts of subordinate legislation without that legislation coming back to the House. The Home Secretary knows our concerns. We wanted a clear exposition from the Government to the effect that the courts were not to strain to give legislation an artificial or unrealistic meaning. We have drawn some reassurance from his remarks, although not complete reassurance. On that basis, and because we need to make progress, I beg to ask leave to withdraw the amendment.

James Clappison (Conservative, Hertsmere)

I beg to move amendment No. 17, in page 2, line 46, leave out from 'legislation' to end of line 2 on page 3.

James Clappison (Conservative, Hertsmere)

We now come to what happens when a court finds that legislation is incompatible with a convention right. In the case of primary legislation, the court may make a declaration of incompatibility, which results in the procedure for remedial action to which I referred in the previous debate. In the case of subordinate legislation, the position is a little more complicated. If subordinate legislation is incompatible with a convention right, and the primary legislation under which it was made prevents removal of that incompatibility, the court may make a declaration of incompatibility. If, however, the subordinate legislation is incompatible and the primary legislation does not prevent removal of the incompatibility, the court may strike down the subordinate legislation without it coming back to the House. That is a significant development, which goes beyond the present position, in which courts may hold subordinate legislation to be invalid only in certain limited circumstances under judicial review. I do not want to go too far into the intricacies of that, but it is established that the grounds on which courts can strike down legislation are limited. The powers to strike down subordinate legislation conferred by the Bill go beyond that, and take us into new constitutional territory. The courts will be able to strike down subordinate legislation that is unobjectionable on existing grounds of ultra vires. We do not question the legitimacy of the established doctrine of judicial review on grounds of ultra vires, but we are worried by the new constitutional implications of allowing courts to strike down subordinate legislation on grounds of incompatibility where the legislation is not ultra vires and without the matter coming back to the House. That may mark a change in the constitutional role of the courts, which we should not allow to pass without comment. The Lord Chancellor, a supporter of incorporation of the European convention on human rights, made a robust statement of the principles governing the constitutional position of the courts in his 1995 Administrative Law Bar Association lecture. He said that the key principle was that judicial review is not an appellate procedure. The court must not substitute its opinion for that of the decision maker. The court must rule only upon the legality of the decision and not upon its correctness. The court will concern itself with the manner in which a decision is reached rather than with the substantive merits of the decision itself. The Lord Chancellor was correct on that occasion, and right to draw a distinction between the procedural grounds on which judicial review is exercised and an appellate procedure that looks at the substantive merits of a decision. The Bill's new procedure seems to lead the courts into considering the substantive merits of issues, rather than procedure. The Lord Chancellor's considered speech drew on a long line of historical precedents, to justify his analysis of the constitutional role of the courts and the place that they occupy in our constitution. The Lord Chancellor's line of precedence went back at great length, almost, although not quite, to Tudor times—I say that without meaning anything by it—and began with Bonham's case in 1610. We know that the noble Lord Chancellor loves historical precedents, and he drew together a number to justify what he thought was the correct constitutional position between Parliament and the courts. We think that that was right, but we are now being asked to do something new under the clause. It involves the courts moving beyond the existing constitutional framework into new territory. We cannot allow that to happen without marking it in some way. One of our main concerns throughout the Bill has been the position of parliamentary sovereignty. We have just heard the Home Secretary speak at length on how parliamentary sovereignty has been preserved, notwithstanding incorporation, through the mechanisms in the Bill. However, we now have an example of exactly what the Home Secretary warned about: courts having the power to strike down legislation without the matter coming back to the House. Although we have reservations about the Government's remedial action, it is important, as a matter of principle, for legislation to come back to the House rather than be struck down by the courts without coming back to the House. This is a constitutional precedent, and it is relevant to parliamentary sovereignty. The Committee should mark it and not allow it to pass.

Dominic Grieve (Conservative, Beaconsfield)

I find the position in respect of this clause particularly difficult. I shall explain why. We are dealing with subordinate legislation, and my experience as a barrister is that subordinate legislation is sometimes struck down by judges for being ultra vires. When that has happened, no seismic shock has passed through this House, because most subordinate legislation is brought into being after the merest scrutiny by the House. I sit on the Joint Committee on Statutory Instruments, so I know that our method of scrutinising subordinate legislation is totally inadequate. It is not far from being a disgrace. I say that on a non-partisan basis, because it has existed for a long time.

Edward Leigh (Conservative, Gainsborough)

Will my hon. Friend give way?

Dominic Grieve (Conservative, Beaconsfield)

I should like to develop my argument first. The prospect of the courts striking down subordinate legislation on the ground that it is incompatible with the European convention as incorporated bothers me less than my anxiety that this will be an area of potential conflict unless Parliament puts into operation proper methods of scrutiny of subordinate legislation before it comes into being. In practical terms, it is far more likely that subordinate legislation will be the subject of dispute than primary legislation, although I am sure that the Government and individual Departments will in future provide close scrutiny of subsequent subordinate legislation to ensure that that does not happen. The problem, which we shall come to when we consider the Henry VIII clause, is that I have always been absolutely persuaded that, if the principle of incorporation is to work, it will be because Parliament and the courts seem to be acting in tandem because one is not subordinate to the other and it is Parliament's will that the rights as set out in the Bill should be incorporated and upheld, and because Members of Parliament will look to the courts to provide them with guidance in carrying that out. We must move away for a moment from the question of the precise wording of the Bill and whether judges ultimately have the power to strike down subordinate legislation and persuade the Government, particularly the Parliamentary Secretary and the Home Secretary, that regard must be had to how subordinate legislation is brought into being. Unless it is perceived by both Parliament and the public that Parliament takes an active role in ensuring that the subordinate legislation is compatible with the European convention, we shall subsequently have a fertile area of conflict if the judges then go round striking it down. I accept that I am widening the scope of the argument a little beyond the precise wording of the amendment, and I apologise to you, Sir Alan, for doing so. However, it is a point of fundamental importance and it must be addressed. I am aware that Justice has been particularly exercised on the matter, because it is convinced that there will have to be some form of parliamentary Committee to scrutinise subordinate legislation. With a certain refreshing naivety, it came to see me and inquired whether I thought that the Select Committee dealing with statutory instruments could do the job. The answer is, "Yes, it could. But it would have to be several Committees, not one, and it would have to be given the teeth to do it. It certainly has the expertise." I realise that it is a separate issue, which will be discrete from the Bill, but the acceptability of the courts striking down subordinate legislation will be greatly enhanced if the mechanisms by which that subordinate legislation is brought into being are subject to proper scrutiny. Unless they are, we run the serious risk of the courts operating in that area, and Parliament will be held in contempt. We do not scrutinise subordinate legislation properly in the first place, so we shall be ill prepared to complain when subsequently it is deleted. That is more important, potentially, than amending the Bill as it stands. My experience as a barrister is that, ultimately, subordinate legislation is regarded as the creature of Ministers. If Ministers get it wrong and it is struck down, no seismic shocks ripple through our constitution. Nevertheless, it is an important point and I hope that the mere fact that it highlights the deficiencies in the creation of subordinate legislation means that we shall end up with a much better constitutional procedure for dealing with the growing amount of such legislation. In the 1960s, we passed some 25 pieces of subordinate legislation a year, and today we look at about 70 a week in Committee. Unless the matter is brought under control, it will cause serious problems in the future.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I wish to follow what my hon. Friend the Member for Beaconsfield (Mr. Grieve) has been saying. Ever since I have been in the House, I have been extremely concerned by the volume of secondary legislation and how the House considers it. I agree with my hon. Friend that it is a scandal. Important obligations are created and extensive penalties sometimes imposed through the process of secondary legislation. As we all know, the House pays almost no attention to the content. Frequently, we cannot do so because it is the subject of the negative resolution procedure. Even when we can, because it is the subject of the affirmative resolution procedure, the debate is extremely short—normally 90 minutes—and one cannot amend the documents. One can simply hope that a draft is presented for discussion before the order is ultimately laid. I admit that the Government of which I was a member used secondary legislation to a huge extent—all Governments do. The House should resist doing that. The paradox is that, if the Committee accepts the argument of my hon. Friend the Member for Beaconsfield and, as a consequence, improves how we consider and debate secondary legislation, it will be much more offensive to allow the courts to strike it down on the ground of incompatibility. A serious constitutional issue is raised by the courts' ability to strike down any form of legislation—in this case, we are discussing secondary legislation—and that will probably be made greater if we do what we should do, which is fundamentally to overhaul how we consider and control secondary legislation.

Edward Leigh (Conservative, Gainsborough)

I must confess that I have difficulty with the arguments presented to the Committee by my hon. Friend the Member for Beaconsfield (Mr. Grieve) and my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg). They seem to be arguing that the fact that the House gives inadequate consideration to subordinate legislation is a good excuse for allowing judges to strike it down. If that is their contention, it is extraordinary. That is not a good excuse for allowing judges to strike down subordinate legislation. If we are convinced that we are giving inadequate attention to subordinate legislation, surely the remedy lies in our hands: we should make the House less of a legislative sausage machine, and allow sufficient time to consider subordinate legislation. However, as my right hon. and learned Friend the Member for Sleaford and North Hykeham knows full well from his experience in government, currently that is impossible because we should have to meet not only all week, but all weekend, and we should have no recesses at all. In any event, much subordinate legislation is very technical and the House does not want to consider it. I do not accept the arguments of my hon. Friend the Member for Beaconsfield and my right hon. and learned Friend the Member for Sleaford and North Hykeham. This is a dangerous precedent, because we are extending the remit of judges. We have made that point repeatedly in these debates. It may well be that striking down such legislation would not, in the words of my hon. Friend the Member for Beaconsfield, produce a seismic shock in the constitution, and no doubt it would not be commented widely upon in the tabloid press. However, that does not negate the important principle that, for the first time, as I understand it—I may be wrong—judges will, at the stroke of a pen, be able to strike down legislation, albeit subordinate, of a sovereign Parliament. That is a development about which we should be considerably worried. I have been trying to research these matters. There is one point that I do not understand in the otherwise excellent briefing supplied to us by the Library. It states: Clause 3 is not intended to affect the validity, continuing operation or enforcement of any incompatible primary legislation, or any incompatible subordinate legislation if primary legislation prevents the removal of the incompatibility." I confess that I find that concept difficult to understand. Will the Parliamentary Secretary explain exactly what it means? I note that subordinate legislation, as defined in clause 21, seems to relate to a great deal of legislation emanating from Acts of the Parliament of Northern Ireland or measures of the Northern Ireland assembly. I wonder whether we are allowing judges to take a close interest in legislation that was passed by the former Stormont Parliament or which will be passed by the future Northern Ireland assembly. That is a small point, but I hope that the Parliamentary Secretary will be able to respond to it.

Robert Maclennan (Liberal Democrat, Caithness, Sutherland and Easter Ross)

I am grateful to the hon. Member for Beaconsfield (Mr. Grieve) for arguing the line he did, because it is important, and I followed it with great interest. I am not clear whether the amendments deal primarily with an issue of great importance because of the underlying principle or because there could be major consequences in terms of the numbers of cases where the courts felt called on to consider subordinate legislation. I do not know whether the Government, in putting forward the proposal in the Bill, had in mind the possibility of a flood of cases arising from subordinate legislation and thought that it would be impractical or difficult to bring them all back to Parliament on a signal from the judiciary that there was incompatibility and deal with them as the Bill proposes to deal with cases arising from primary legislation. It is hard to decide whether to proceed with subordinate legislation in the same way that is proposed for primary legislation. That would open a huge Pandora's box. Because of the manner in which Parliament reviews secondary legislation, we are guilty of allowing inadvertently to be passed much that should not be passed. The wider constitutional points made by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) and the hon. Member for Beaconsfield were well put, and I endorse them.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I am grateful to the right hon. Gentleman for his support, but the point goes further than he has contemplated, because European Union legislation is directly incorporated into the United Kingdom by reason of the treaty. A great deal of subordinate legislation is simply EU legislation that is carried over and is not the subject of any discussion.

Robert Maclennan (Liberal Democrat, Caithness, Sutherland and Easter Ross)

It is such thoughts that make me think that there may be a profound practical reason for accepting the present drafting of the Bill. That must make much stronger the case for the improvement of our scrutiny procedures. I hope that I am not straying out of order in dealing with this point—I think that it is germane to the issue under discussion. There is a problem of overload in this House. We are dispensing powers to other assemblies and Parliaments and we may consider the tasks that should be done in another place if it is reformed and democratised, so there will be plenty of work to be done by both Houses of Parliament, notwithstanding those significant changes, in ensuring that subordinate legislation does not risk running foul of the European convention on human rights.

Geoff Hoon (Labour, Ashfield)

The amendments would affect the powers of the courts in respect of subordinate legislation. Amendment No. 17 would amend clause 3(2)(c) so that, notwithstanding the interpretative provisions of clause 3, all incompatible subordinate legislation, rather than only inevitably incompatible subordinate legislation—that is, subordinate legislation that inevitably takes an incompatible form because of the terms of the primary legislation under which it is made—would have continuing force and effect. Amendment No. 11 is consequential. It would amend clause 4(4)(b) so that the power to make a declaration would apply to all subordinate legislation, not only to inevitably incompatible subordinate legislation as at present. Amendment No. 12 would insert an additional phrase into clause 4(4) to make it clear, in conjunction with amendment No. 17, that the courts could not strike down subordinate legislation. That, I hope, is a fair summary of the amendments. The right hon. Member for North-West Cambridgeshire (Sir B. Mawhinney) raised the issue Second Reading, and gave notice that he would return to it in Committee. The present debate gives me an opportunity to explain more fully why the Government disagree with the Opposition's view that the Bill confers on the courts a power in respect of subordinate legislation which differs in kind from that which they already possess. I shall also explain why the amendments would harm the Bill. The twin starting points are, once again, the sovereignty of Parliament and the protection of individuals' rights under the convention. The Government have decided that the courts should not be able to strike down primary legislation because of the special status that Acts of Parliament and various other measures enjoy. That special status is, of course, acknowledged by the existing powers of the courts. They cannot strike down Acts of Parliament because of the doctrine of parliamentary sovereignty. However, subordinate legislation can already be, and is, struck down by the courts in certain circumstances. The courts will review the exercise by a Minister of a power to make subordinate legislation, just as they will review the exercise by any public authority of a discretionary power. I emphasise that, because it may be their reluctance to take that on board that lies behind the Opposition's difficulties with the Bill on that point. Subordinate legislation may be struck down as ultra vires when the making of the instrument in question is outside the scope of the enabling power. Such legislation may also be attacked on procedural grounds—for example, when the mandatory procedure for making it as set out in the parent statute has not been followed or, less commonly, on the ground that the discretion involved in making the relevant instrument has been exercised unreasonably.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

The Minister's argument is less good than he thinks it is. He is saying that the courts already have the power to strike down secondary legislation on the ground of ultra vires and under the Wednesbury principles. I understand that, but we are arguing about the courts having the power to strike down secondary legislation on the ground of incompatibility. That raises the question of merit, which goes beyond vires. Although there is a power to strike down secondary legislation, it is narrowly defined and usually applies to ultra vires or unreasonable acts, whereas the Bill gives the courts an ability to determine not just issues of vires but questions as to compatibility that are themselves issues of merit.

Geoff Hoon (Labour, Ashfield)

I shall deal with that point as I develop my argument in relation to the Bill. I hope that it is common ground between us that, if a Minister exercises an order-making power in a way that is not permitted by the parent Act, the courts should be able to disapply that order. I doubt that there is any dispute about that. In doing so, the courts would, in effect, be reinforcing the will of Parliament by ensuring that the Act that it approved was properly applied. In that sense, the courts would be upholding parliamentary sovereignty, by ensuring that the will of Parliament in primary legislation had been given effect. I hope that that point will be accepted. Let me apply that argument to the Bill. If Parliament passes an Act that contains order-making powers that are capable of being exercised in a way that is compatible with convention rights, what is the objection to providing that, if a Minister fails to exercise those powers consistently with those rights, the courts should be able to quash the instrument or set it aside? I cannot see what is wrong with that argument. Indeed, it is the absence of such a power with which I would have difficulty. The Human Rights Bill, if it is approved, will become an Act of Parliament, and it is perfectly reasonable to require that subordinate legislation be consistent both with the terms of its parent statute and with the Human Rights Act. That is what the Bill provides. It is inherent in the public authority provisions in clause 6 that Ministers will be acting unlawfully if they make subordinate legislation that is incompatible with a convention right, unless the parent statute requires the subordinate legislation to take that form. I hope that that is the answer that the hon. Member for Beaconsfield (Mr. Grieve) was seeking. If he reads clause 6(1), he will find that Ministers are under that duty. These provisions are wholly beneficial. If it is the will of Parliament that something should be done that is incompatible with a convention right, Parliament must be prepared to say so in primary legislation. The hon. Member for Gainsborough (Mr. Leigh) raised the issue of subordinate legislation that is inevitably incompatible with convention rights. The nature of the primary legislation under which an order is made may be such that any subordinate legislation will necessarily be in conflict with convention rights. If the courts were to have the power to strike down such subordinate legislation, it would, at least indirectly, amount to a challenge to the primary legislation itself. That would place the courts at odds with Parliament. I could understand the concern of Conservative Members if the Human Rights Bill gave the courts the power to quash such subordinate legislation, but it does not do so. Clause 3(2)(c) makes that point abundantly clear.

Gerald Howarth (Conservative, Aldershot)

Will the Minister confirm that this provision will not have retrospective application?

Geoff Hoon (Labour, Ashfield)

Clearly, it will apply to legislation in force once the Human Rights Act is itself in force. I hope that Conservative Members will accept that the amendments address an illusory concern. They are not needed to protect the sovereignty of Parliament. Indeed, without these provisions, the sovereignty of Parliament would be threatened, because we would not be able to give effect to parliamentary sovereignty and to the will of Parliament as expressed in primary legislation. The amendments would tie the hands of the courts and would weaken the protection that individuals receive from convention rights. Therefore, I hope that the Opposition will withdraw the amendment.

James Clappison (Conservative, Hertsmere)

This has been an interesting debate, and we have had some good contributions from Conservative Members. Whatever view we may have of the merits of the process for scrutinising secondary legislation, we are united in our desire to express our zealousness in defending parliamentary sovereignty. We are not satisfied with the Minister's response. I listened carefully to what the Minister said about ultra vires legislation. This point was anticipated if not in my opening speech, which may not have been sufficiently clear, then certainly in the intervention of my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg), who expressed the same view as I did, but more elegantly and more forcefully. The clause will allow the courts to strike down perfectly good subordinate legislation that is not ultra vires and has no procedural defects merely by considering its merits. The Bill is taking us into new territory. The courts will be able to examine the merits of legislation and to strike it down without reference to Parliament. The Minister argues that the clause safeguards parliamentary sovereignty. We think that Parliament should be the judge of that. The matter should be subject to parliamentary sovereignty. To make our mark and to register our disapproval of this provision, we shall press the amendment to a vote.

DECLARATION OF INCOMPATIBILITY

Edward Garnier (Conservative, Harborough)

I beg to move amendment No. 15, in page 3, line 7, at end insert `setting out the nature and extent thereof in so far as arises from the nature of the case before the court'.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

With this, it will be convenient to discuss the following amendments: No. 103, in page 3, line 7, at end insert— '(2A) A court may not make a declaration of incompatibility unless it is necessary for the purpose of determining the matter before it.'. No. 16, in page 3, line 16, at end insert 'setting out the nature and extent thereof in so far as arises from the nature of the case before the court'.

Edward Garnier (Conservative, Harborough)

We believe that clause 4 represents a collision point in the constitution. It does not merely represent a meeting between the supervisory code on human rights that we gain from the convention and the doctrine of parliamentary sovereignty; it represents a meeting between the powers of the courts and this place to instigate a parliamentary process of statutory change. Clause 4 empowers the courts—as defined in subsection (5)—to declare that primary legislation is incompatible with a convention right. Clause 4 should be read in conjunction with clause 21, which defines primary legislation. According to that clause, "primary legislation" means any public general Act…local and personal Act…private Act…Measure of the Church Assembly … Measure of the General Synod of the Church of England…Order in Council made under…the Northern Ireland Constitution Act 1973…Order in Council made in exercise of Her Majesty's Royal Prerogative…and includes an order or other instrument made under primary legislation to the extent to which it operates to bring one or more provisions of that legislation into force or amends any primary legislation". Subordinate legislation is also defined in clause 21, and was referred to in an earlier debate.

Gerald Howarth (Conservative, Aldershot)

My hon. and learned Friend has listed the measures that would be caught by the description "primary legislation". Will he tell us whether the matter has been debated by the General Synod, whether its views have been sought and whether they have been referred to the House? Surely that is a material issue, as the new law will apply to the whole body of law passed by the General Synod of the established Church.

Edward Garnier (Conservative, Harborough)

My hon. Friend is right: that is a material question. Sadly, I do not know the answer, but other hon. Members who are past or present members of the General Synod may be able to help us.

John Gummer (Conservative, Suffolk Coastal)

Will my hon. and learned Friend take this a stage further? Normally, matters pertaining to the Church of England that are to be debated in the House of Commons are brought before the Ecclesiastical Committee, for two reasons. First, the Committee is a joint Committee of both Houses; secondly, unlike the Synod, it contains not just members of the Church of England but members of other Churches, because it scrutinises legislation to see how it will affect other subjects of Her Majesty. Clearly, the Bill will have an effect on the Synod. I am a member of the Ecclesiastical Committee, but I have not received a note about the matter. Perhaps my hon. and learned Friend can find out whether the Committee has been able to debate it, and to decide whether it is content with the implications for the Church of England.

Edward Garnier (Conservative, Harborough)

I am grateful for my right hon. Friend's intervention. He has immense experience of the affairs of the Church of England, and I was interested to hear that, although he no longer belongs to that Church, he continues to take a close interest in it. I suspect that my right hon. Friend will know better than I whether, in one or other of its various forums, the Church has been able to express a view on clause 4. The Minister, too, may have better information than I. We must consider clause 4 in conjunction not just with clause 21, which defines primary legislation, but with clause 5, which gives the Crown—and, subject to amendments that we may or may not debate later in Committee stage, others—the right to intervene in court proceedings. If those amendments are accepted—strictly speaking, they are not germane to this debate-and if other interveners are given rights under clause 5, the Church of England and other affected bodies, as well as the Crown, may well be entitled to take an interest in a clause 4 question. When considering the effect of clause 4 we must also consider clauses 10, 11 and 12, especially clause 12 (3)(a) and (3)(b), because they deal with remedial action—broadly, what Parliament will do in the event of a declaration of incompatibility under clause 4. Clause 12(3) states: A remedial order (or draft) laid before Parliament must be accompanied by a statement containing— (a) an explanation of the incompatibility which the order seeks to remove, including particulars of the relevant declaration, finding or order; and (b) a statement of the reasons why the person making it (or proposing to make it) considers an order in those terms appropriate." The person making it would be the Minister. Paragraphs (a) and (b) are especially relevant when considering our amendments that deal with the beginning of the process—the making of a declaration by one of the courts that are listed in clause 4(5) in relation to primary legislation. We debated secondary legislation earlier, but we are now dealing with primary legislation. I spoke deliberately about a collision point on the constitution because the Strasbourg system is invasive. From time to time, the European Court of Human Rights determines that some aspect of national law or practice is incompatible with a provision in the convention. The way in which human rights are protected in a country that adheres to the convention is no longer exclusively a matter of national sovereignty. In addition, the convention system has not stood still, and has constantly been adapted to bring it into line with contemporary notions of human rights protection—for example, through the introduction of new protocols. In some Strasbourg court judgments it has been said that the convention represents the public order of Europe that it imposes objective obligations on the convention states for the protection of human rights in Europe and that the convention is evolving as Europe's constitutional Bill of Rights. Those are the words of the European Court judges, and they may ring alarm bells loudly for my right hon. and hon. Friends, and possibly in the massed ranks of Labour Members. The convention is no longer seen as an international treaty that creates reciprocal arrangements between contracting states. It is increasingly being interpreted in line with the object and purpose rule—I am sure that the Committee knows all about that—in the Vienna convention on the law of treaties which was entered into in 1969 as Europe's constitutional Bill of Rights. As I said in an intervention, the jurisprudence of the European Court of Human Rights over the past 30 to 50 years has been entirely candid in seeing the convention as a growing Bill of Rights for Europe. In the corporal punishment case affecting this country, Tyrer v. the United Kingdom, in 1978, the court said that the convention was a living instrument and that it had to consider the standards of behaviour, morality and ethics that are accepted in contemporary European society, and not those that were applicable when the convention came into being in the early 1950s. The line between judicial interpretation and judicial legislation may be increasingly breached. The amendments are intended to guard against that and to prevent United Kingdom courts from going further than is warranted under our constitution. In view of the parliamentary arithmetic—a phrase which was used not long ago—there can be no doubt that the Bill will become an Act and that the convention, or at least those parts of it that are specified in the Bill, will be incorporated into British law. The amendments seek to limit the damage that we think may be done to our constitution if clause 4 is unamended. It has been said that the Bill would wreck our constitution, but I would not go that far. In the debate on the Queen's Speech after the election, I said that I had no religious or principled objection to the introduction of the European convention on human rights into domestic British law. However, I remain worried that the procedures that we are adopting could damage the constitution, perhaps unintentionally. That underlines my argument on the amendments. I do not accuse the Government, at least on this occasion, of deliberately setting out to destroy the constitution, but we could make that charge stick on other occasions and we shall have an opportunity to do that. As the Bill, amended or unamended, will become law, we must do all we can to ensure that the doctrine of the separation of powers, which underscores our constitution, is not put at risk. Our amendments are designed to protect the constitution and to prevent unwanted and perhaps unintended contests between Parliament and the courts. Why is that matter important and why are we determined to prevent the dangers that we expect would arise from an unamended clause? The Minister does not always give me prizes for original thinking on political philosophy, and I do not think that he will give me a prize for suggesting that elected, accountable Members of Parliament, assembled in Parliament, are the proper persons to make the law, but that unelected, disinterested, unaccountable judges should interpret it. That is our system, and, under our constitution, the courts have no power to declare that an Act of Parliament is invalid. The United States has an entirely different system. Under its system of judicial review, which is not to be confused with ours, federal judges—the constitutional judges in the Supreme Court—can strike down Acts of Congress if they believe that they contravene the United States constitution. We do not have that, and long may that position remain. In an earlier debate, we briefly discussed secondary legislation. Because of the development of such legislation and the increasing use of regulation-making powers that are given to Ministers by statute—a matter which greatly concerns my hon. Friend the Member for Beaconsfield (Mr. Grieve)—the courts have felt able to develop the scope of judicial review of administrative action. In some cases, that has led to political criticism of the judiciary when it pronounced on matters of social or political controversy. Sadly—or perhaps not sadly—hon. Members and the editorials of newspapers are not slow to criticise judges when they make pronouncements with which we disagree. That is what we are entitled to do. We touched on that matter in a debate on the Scotland Bill two or three weeks ago, when we discussed the appointment or removal of Scottish judges and sheriffs under the new Scottish parliamentary system. One of the points that the hon. and learned Member for North-East Fife (Mr. Campbell) brought out was that a judge could be criticised, for example, for overly lenient sentencing and hounded by a group of politicians for doing so. One does not have to go very far back in English political history to know that there have been criticisms of our judges by members of the Labour party and of the trade union movement, who were concerned that English judges were producing laws that were contrary to those members' interests. 8.30 pm You, Sir Alan, may remember the cries of, "Tory judges are doing the Government's work," in the 1980s. Although that was no doubt a sincere and well-intended criticism—or perhaps an ill-intended criticism—it was wrong-headed because they were not Tory judges, but wholly disinterested politically. None of their judgments was based on their political opinions; they were based on an interpretation of the law, which happened to have been enacted under a Tory Government. The confusion is between Tory laws passed by a Tory Government with a majority in the House of Commons and the interpretation of those Tory laws by disinterested judges.

Edward Garnier (Conservative, Harborough)

My hon. Friend is entirely right. That is why our amendments are so important. They will remove any doubt that may rest in the minds of those who know less about it than they should that the judges who make the declarations of incompatibility are motivated by anything other than a desire properly to interpret the statute law that is in front of them. This is not a new problem. The tension between the two lives that I lead—one in the law and one in Parliament—is often referred to. It has been referred to by far more eminent lawyers than are here tonight, and I include myself in that. Trade union legislation in the early 1980s caused such alarm among the Labour party. You may remember, Sir Alan, the steel strike of the early 1980s, which led to all sorts of industrial action and then secondary industrial action. Laws were passed by the Conservative Government that made secondary action unlawful. It resulted in the case of Duport Steels v. Sirs. When that case arrived at the Judicial Committee of the House of Lords, Lord Diplock said this. I always like referring to cases in which Lord Diplock has contributed a judgment. He was a very intellectually rigorous man, but he was not without a sense of humour, as I am sure the Minister will appreciate. Lord Diplock was a keen follower of the foxhounds and had a horse called Circuit. When he was at the Bar and his clients rang up and asked, "Is Mr. Diplock available?" his clerk could legitimately say, "No. I'm afraid he is away on Circuit." I digress and I apologise for doing so. I want to read just a small section of Lord Diplock's judgment in the Duport Steels case, because he well illustrates the points that inform my amendments: at a time when more and more cases involving the application of legislation which gives effect to policies that are the subject of bitter public and parliamentary controversy, it cannot be too strongly emphasised that the British constitution, though largely unwritten, is firmly based on the separation of powers: Parliament makes the laws, the judiciary interpret them. When Parliament legislates to remedy what the majority of its members at the time perceive to be a defect or a lacuna in the existing law (whether it be the written law enacted by existing statutes or the unwritten common law as it has been expounded by the judges in decided cases), the role of the judiciary is confined to ascertaining from the words that Parliament has approved as expressing its intention what that intention was, and to giving effect to it. Where the meaning of the statutory words is plain and unambiguous it is not for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they themselves consider that the consequences of doing so would be inexpedient, or even unjust or immoral. In controversial matters such as are involved in industrial relations there is room for differences of opinion as to what is expedient, what is just and what is morally justifiable. Under our constitution, it is Parliament's opinion on these matters that is paramount. Those words are as true today as they were when they were uttered.

Edward Leigh (Conservative, Gainsborough)

I think that my hon. and learned Friend can add to his point and make it even more powerful. As he knows, in that case, the House of Lords was striking down a judgment by Lord Denning in the Court of Appeal. Just as my hon. and learned Friend admires Lord Diplock, I admired Lord Denning. From my political viewpoint, I particularly admired a remark that he made in the Court of Appeal judgment in that case. He was dealing with that trade union dispute and said that it could have a disastrous effect on the economy and well-being of the country". As much as Conservative Members may admire what he said in those circumstances, the House of Lords acted properly. It struck down Lord Denning. He should not have been making a political point of that nature. That is the powerful point that Lord Diplock was making in that case.

Edward Garnier (Conservative, Harborough)

That is exactly right. That is why the Court of Appeal was overturned in that case. Both the point that my hon. Friend makes and the point that I am developing in support of our amendments show that, where one is dealing with the introduction of convention rights into domestic law, and where one is introducing something into our system of law, which traditionally has been concerned more with remedies and duties than rights, the courts are sometimes tempted to introduce the sort of language that the Court of Appeal heard from Lord Denning, which is impermissible under our constitution. Parliament—this House and the other place—should have the first word and the last. I am positive that A. V. Dicey put it more elegantly than I have, but where we are putting the broad brush—I think that, as I am dealing with European matters, I am allowed to descend into purple prose—of the European convention across the canvas of our constitution, we should endeavour to paint a coherent picture. I hope that the Minister enjoyed that because I want to remind him of something that Lord Kingsland, the shadow Lord Chancellor, said in the other place on Second Reading of the Bill last November. It was a model speech, if I may say so. It completely stripped bare the Lord Chancellor's arguments in favour of the Bill, and presented a thoroughly unmatched set of arguments. My noble Friend said that, if the Bill, became law—I paraphrase at the moment—it would be a defining moment in the life of our constitution, and as important in the history of our constitution as, for example, the Parliament Acts of 1911 and 1949. He said that all those matters lie at the heart of the doctrine of the separation of the powers in our constitution, which has been the hallmark of our liberties throughout the centuries. We should not scoff at the protection of our liberties under the constitution. Lord Kingsland suggested that the Lord Chancellor had gone for a hybrid of the New Zealand and Canadian models and that he is not striking down the previous statute but is giving judges the power to make a declaration of incompatibility. He then gives Parliament the option to legislate not by full primary statute but by order in council. I believe that that solution is constitutionally unacceptable for two reasons which I shall try to explain … In the Bill the courts of this country are not bound by the decisions of the court in Strasbourg. He said that it is to have persuasive but not obligatory effect. When a court in this country makes a declaration of incompatibility, it might be making a declaration which is not an accurate photograph of the law of the convention. Indeed, that option is expressly incorporated in the Bill. To the extent that a declaration of incompatibility does not reflect the true construction of the jurisprudence of the convention, the judges will be making a declaration about the making of new law, judge-made law. Indeed, they will be doing more than that. They will be initiating a legislative procedure in Parliament. If that is what the clause proposes, it will introduce something that we should be well aware of, and we should do something about it. Clause 4(2) says: If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility. Amendment No. 15 proposes to add these words immediately afterwards: setting out the nature and extent thereof in so far as arises from the nature of the case before the court so that, when the declaration of incompatibility is made by the court, the Government—who will have to introduce a remedial order—will know precisely why the court has found that the Act is incompatible with the convention rights.

John Gummer (Conservative, Suffolk Coastal)

My hon. and learned Friend says that it is important that the Government know that. May I suggest that it is more important that the people should know? This is an unusual mechanism—like him, I do not have too extreme a view of it—and some Labour Members appear to agree with my hon. and learned Friend about the change in the constitution. There are a lot of people outside who will be at least suspicious about the matter. Therefore, the Committee should accept nothing less if we want those people to accept the system.

Edward Garnier (Conservative, Harborough)

My right hon. Friend is right to pull me up. Of course it is the people who have the right to know. I was thinking, naively, that the Government actually took account of the interests of the people. I was mistaken, and I apologise for being such a silly billy. This Government were described as "unusually tyrannical" in the other place by Lord Simon of Glaisdale—not a man given to hyperbole. My right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer) was right to pull me up. We purport to represent the people in this place—I do not know what the Government think they are doing. They seem to pay precious little attention to what the people care about. [Interruption.] I will not be diverted by grumblings from the hon. Member for Slough (Fiona Mactaggart), who is not a noted constitutional lawyer as far as I am aware.

Fiona Mactaggart (Labour, Slough)

rose—

Alan Haselhurst (Deputy Speaker, Saffron Walden)

Order. The hon. Lady must not assume that she has the Floor until it has been conceded to her by the Member she is seeking to interrupt.

Fiona Mactaggart (Labour, Slough)

I apologise, Sir Alan, for misreading the body language of the hon. and learned Member for Harborough (Mr. Garnier). The point that was being made before I attempted to intervene was about representing the people. I have never suggested to anyone that I am an eminent lawyer; I have never sought to play such a role. However—like the Labour party—I have listened to and represent the people of Slough, which is why we are implementing such a substantial and important change in the Bill.

Edward Garnier (Conservative, Harborough)

I think that I may have been mistaken not to conceal my body language. After that intervention, I shall keep my body language to myself. My noble Friend Lord Kingsland identified the constitutional danger posed by clause 4, which would allow judges to introduce a legislative initiative. I think that amendment No. 15 goes some way in dealing with the concerns expressed by my noble Friend, which are also felt by very many people in the United Kingdom. When introducing a convention conferring rights—the interpretation of which has been subject to argument and debate in Strasbourg and in the domestic courts of nations that are amenable to the convention, and still no exactitude has been provided—into a system of law that has until now been concerned more with remedies and duties, it is vital that Parliament should tell, the courts what we expect of them. On 3 November 1997, the Lord Chancellor said in the debate on the Bill's Second Reading: the Bill is carefully drafted and designed to respect our traditional understanding of the separation of powers. That is undoubtedly a worthy sentiment. However, as the Lord Chancellor has also said that his legal aid reforms are designed to "increase access to justice", we should be very careful of sentiment emanating from that noble mouth. The Lord Chancellor said: The design of the Bill is to give the courts as much space as possible to protect human rights, short of a power to set aside or ignore Acts of Parliament."—[Official Report, House of Lords, 3 November 1997; Vol. 582, c. 1228.] We have tabled this group of amendments to restrict the space within which Parliament allows the courts to operate, not to inhibit the courts from protecting human rights. We fear that, without the amendments, the courts will increasingly push at the boundaries between the judiciary and Parliament, which would so upset the pertaining balance. Under the Bill, the courts will take on a new role. Hon. Members must be careful before ceding our powers to initiate legislation to the courts. If we are to have clause 4 declarations, they must be explicit, capable of withstanding scrutiny and public explanation, and in such a form that they can sensibly inform the process that the Bill envisages in clause 12(3). If we are to have remedial orders, they must work in concert with the final judicial wording of the declarations of incompatibility. To do otherwise would merely add to the tension that will come to exist between this place and the courts. Although it is important that there is a creative tension between them, it is vital that the Bill should not allow a destructive tension to build up. I suggest that passing the amendments would relieve the constitution of a potential danger—one which would act to the detriment of our constituents.

John Gummer (Conservative, Suffolk Coastal)

I shall not detain the Committee long, but I believe that the amendment is of considerable importance because of the need to explain to the public as a whole the effects of this new situation. I am unhappy about the concept of rights; I happen to believe that we have obligations, and that in our obligations lie other people's rights—as a matter of fact, I do not think, philosophically, that created beings can have rights. It is a pity that we have not understood the distinction, which we have never before had in our laws. We have always seen that there is a matter of duties and obligations, and that has been the key to our handling of the sort of issues with which the European convention is concerned. However, because it is a European convention, it is heavily influenced by the works of Tom Paine and the French revolution, and papal reinterpretation of that in the latter part of the 19th century. One clearly sees that stretch of attitude in the way in which the convention is framed.

Robert Maclennan (Liberal Democrat, Caithness, Sutherland and Easter Ross)

Would it not be historically more accurate to acknowledge the debt owed to the works of Jesuit priests and writers such as Hugo Grotius, Vitoria and others in the long Catholic European tradition, going right back to the laws of nature, which recognised rights?

John Gummer (Conservative, Suffolk Coastal)

It would be possible to acknowledge that, but it would be contrary to the truth. I am sure that the right hon. Gentleman will acknowledge the fact that, until the end of the 19th century, the Catholic position was quite clear: rights were not possible for a created being; a created being had obligations, and those obligations conferred rights on others, because others were able to depend on his carrying out those obligations and to expect that he would do so. The matter is not merely semantic, because the problem arises that the attitude towards rights that is so marked a result of the changes in the 19th century has affected Britain rather differently from the rest of Europe. As an enthusiastic supporter of our close connection with the rest of Europe, I believe that we can offer others some things where we are different and where our long history gives us a certain amount of experience that they do not have. One of those aspects of our history is the long stability that we have enjoyed in this country, but that has not been the experience of many of our neighbours. Part of that stability arises from the division of powers. Therefore, if we are going to, at the very least, narrow that division, it is important that, on the occasions when that happens, the reason is clear to the public. The public have respect for judges, but do not expect judges to make the law; they have no respect for Members of Parliament, but do expect Members of Parliament to make the law. That distinction is important. On this occasion, we are allowing judges to come closer to making the law than they do in any other circumstance. That is the crucial issue. Having read the debates in another place, I should have thought that the Government would want to make sure that their promise there would be carried through. They said there that they wished to make this new excursion as compatible as possible with our historic separation of powers. I hope that the Government will not feel that that there is any way an unpleasantness about the amendment or that it should be overruled merely because the Government have a majority. I should have thought that the Government would not find an amendment that asks that courts give a clear statement of why they find a measure incompatible with the European Convention on Human Rights one on which to divide the Committee. It seems to me that everyone could agree on the matter—not just so that the Minister would find it easier to frame amending legislation, but so that the public should be easier in their minds that the judges have acted properly and constitutionally within the framework laid down by Parliament. I hope that the Government will accept the amendment as a result of that first point. Secondly—although less importantly, as the public are most at risk of feeling that the change is not one of which they are assured—I hope that the Government will see the amendment as their defence. As things happen to be, it is likely that this Government will be in power on the first occasion—probably within the next three or four years—on which the provision operates. If it takes place after that, this Government will not have to make a decision. Ministers will surely want to know, not least on that first occasion, precisely what this is all about; what the judges are getting at; how narrowly amending legislation can be drawn. Let us imagine circumstances in which the Government managed to pass a measure that had been hard fought against as it went through the House. Let us imagine that the Opposition had tabled amendments pointing to the incompatibility of some measure that the Government were proposing. Let us think that, in a heated moment, the Government had said very clearly that the Opposition were wrong and that the measure was not contrary to the effects of the European Convention on Human Rights. Let us think that the debate continued along that line and that, in the end, the majority ruled and the Government got their way. In those circumstances, the Government would want to be quite sure that, if the judges struck down the measure, they had the best ground for being able to eat their words. They would like to be able to say to the Opposition, "Well, what you said was not generally true, although it appears that, in a particular case, there was some truth in it." I do not want the Government to feel that they must overcompensate for what has been mistaken. In other words, if the courts struck down, or appeared to strike down, some decision of the House, the Government would want to make as small an alteration as is compatible. How could they do that unless they knew precisely why the courts had struck down the matter? I do not know why I am busy defending the Government—except that we shall inherit the matter thereafter. However, the Government need to be defended from a position in which they will have to make the remedy but will not know how widely that remedy will have to run. That brings me to the third point. I want to defend not only the Government but all other hon. Members. The Minister is a very honourable Member, and will no doubt seek, if the task falls to him, to bring in as narrow a change as absolutely necessary. However, others will be less scrupulous, and will say to themselves, "We do not want to get mixed up with those courts any more, so let us go as far as it could be thought that the courts might expect us to, and get out of the problem in future." Unless we insist upon the detailed amendment, the Government could propose to amend the legislation far beyond what would be necessary if there were a more particular statement of what the courts were concerned about. There are therefore three reasons why I believe it necessary for us to carry the amendment into law—the defence of the people so that they know where they are, the defence of the Government so that they know where they are, and the defence of the House, to ensure that its will is not gainsaid by one iota or scintilla more than is absolutely necessary to meet the obligations that the convention lays upon it. 9 pm Those should be views commonly held on both sides of the Committee. I see nothing in them that could possibly be thought party political. However, my last point is party political. One of the problems with judges is that they share the human frailty of seeking always to move as far as their powers allow. We all tend that way. All assemblies move to become Parliaments; all Parliaments seek greater power; courts are rarely satisfied with the restrictions laid upon them. I believe it is necessary to ensure that our courts do not gain an appetite for what my hon. and learned Friend the Member for Harborough (Mr. Garnier) described as the attitudes of the European Courts of Human Rights and of Justice and of other courts in individual nations in the European Union and beyond. That is why the amendment is necessary for the good of the courts, as well as for the good of the Government, the good of the people and the good of the House. I believe that the courts' natural appetite for the extension of their powers should be restrained, and the only one body that can so restrain them is the House. That is the nature of the separation of powers. Therefore, the Committee owes it to the courts to be clear in the way that it legislates today and throughout the further stages of the Bill. We must be clear, and we can do that only if we insist that the courts be clear, for in their clarity will be their restriction. Because they have to say in detail what they find incompatible, they will not be able to stretch their powers beyond the degree to which we—of necessity, if the Bill is passed—will have to increase them. That is why I hope that the Committee will accept that the amendment is reasonable and would be for the good of many of Her Majesty's subjects.

Robert Maclennan (Liberal Democrat, Caithness, Sutherland and Easter Ross)

I am sorry to have to say that I did not find the speech by the right hon. Member for Suffolk, Coastal (Mr. Gummer) compelling in its history, its philosophy, its politics or its law. It finished with a rather curious, although not entirely frontal, attack on the judiciary, suggesting that they were institutionally engaged in self-aggrandisement. That is a caricature of how our judiciary perform. It is evident that our judges are extremely careful not to trespass on the role of Parliament. Indeed, they made it plain before the Bill was introduced that, although they broadly favour the incorporation of the European Convention on Human Rights, they would prefer at this stage in the development of our constitutional thinking not to be given a power to strike down in a simple and straightforward way legislation that they consider incompatible. The Bill represents a novel approach to the incorporation of a Bill of Rights, and its construction owes a great deal to the judicial restraint of the highest judges in the country—including Lord Bingham and many others—who publicly spoke in favour of incorporation and advised that they should not be empowered like the Supreme Court in the United States simply to strike down incompatible legislation. The attack on the judiciary by the right hon. Member for Suffolk, Coastal was very wide of the mark. I do not see how the language of the amendments would do anything to achieve what they seem to be intended to achieve. They are not lapidary in their clarity; indeed, they could create a source of great argument and confusion. It would have been one thing if the amendments had stated simply that the declaration of incompatibility should be accompanied by reasons—one might then have been able to understand what was in the minds of those Conservative Members who tabled them—but they are couched in rather serpentine language. Amendment No. 15 would insert the words setting out the nature and extent thereof in so far as arises from the nature of the case before the court". Almost every phrase of that could give rise to argument—barrack-room lawyers would argue about whether the judges, in making a declaration of incompatibility, had conformed precisely with the terms suggested by amendments Nos. 15 and 16. It is clearly the case that a declaration of incompatibility would be a constitutionally solemn decision, which the courts would not take lightly or ill advisedly. I believe that the courts would take such a decision very rarely as, like Parliament, judges have, in developing common law, broadly assumed that it was the will of the British people that our obligations under the terms of the European Convention on Human Rights should be observed. It is a natural construction—an a priori view—that Parliament has not legislated inadvertently to breach the convention's provisions, so I believe that a declaration of incompatibility would be prayed in aid only rarely. To suggest that there is any automaticity in the provision—that there is an automatic triggering of legislation as a result of the declaration of incompatibility—is to misrepresent the contents of the Bill.

Edward Leigh (Conservative, Gainsborough)

As the right hon. Gentleman said, of course Parliament does not legislate knowingly to be incompatible with the convention, but the convention and the European Court move on and what might have been compatible in the past is no longer compatible. That is why there might be rather more cases coming before the European Court than he might imagine.

Robert Maclennan (Liberal Democrat, Caithness, Sutherland and Easter Ross)

We shall see, but I doubt it. I do not doubt that cases will be brought before the European Court praying in aid the convention rights, but they will stem not from defective legislation or parliamentary activity, but more from the executive actions of public authorities. The right hon. Member for Suffolk, Coastal implied that a declaration of incompatibility bordered on a legislative provision. That is a distortion of language. First, it is quite plain that the Bill provides a permissive power to make a declaration of incompatibility. The court is not required to make such a declaration. Clause 4(2) allows the court to make such a declaration. Secondly, such a declaration does not require the Government to introduce legislation under clause 10. That also is permissive. So to suggest that the Bill contains a trigger mechanism that could be fired and in some way diminish the role of the executive arm of government and the scrutiny of Parliament is to fail to appreciate the checks and balances that have been carefully written into a remarkable Bill. The Bill is remarkable because it fulfils the need to provide a remedy quickly in order to avoid the injustices that would flow from a court finding an incompatibility with the European convention and the remedy depending on Strasbourg because of the difficulty of finding legislative time to introduce primary legislation to overturn the incompatible measure. The Bill has neatly tackled that problem, and in so doing has safeguarded the justice of our system without trespassing on parliamentary sovereignty.

John Gummer (Conservative, Suffolk Coastal)

Has not the right hon. Gentleman now disproved his previous contention? He suggests that the reason for the particular arrangements under the Bill is to enable the remedy to be applied very quickly if a court declares a measure to be incompatible. Obviously, he expects that, if a court declares a Bill to be incompatible, there will be a speedy remedy. I suggested not that that gave the courts the ability to rule, but that it was adjacent to ruling, because it is likely that Parliament would find it almost impossible not to apply that remedy. Therefore, has not the right hon. Gentleman proved that what I said was strictly accurate?

Robert Maclennan (Liberal Democrat, Caithness, Sutherland and Easter Ross)

No. The right hon. Gentleman has not made his case very effectively. It is quite plain that, if a court makes a formal declaration of incompatibility, it will do so advisedly because it considers the matter to be sufficiently important to trigger the mechanism if the executive arm of government and Parliament consider that it is appropriate to respond to it. It would make such a declaration only if there were an issue of some importance that required remedy. Otherwise, it is not obliged to make a declaration—

Edward Garnier (Conservative, Harborough)

I think that the right hon. Gentleman's body language suggested that I was being invited to intervene, and I am grateful to him for that. The difficulty that the Bill presents is that the procedure begins in clause 19. That is where the Minister makes a statement of compatibility. A litigant might take a matter to court, and if the court agreed with him, it would then make a declaration under clause 4. Even before that, there is the potential for dispute between the Executive—whether within Parliament or without—and the court. The right hon. Gentleman has addressed many points, but not that one.

Robert Maclennan (Liberal Democrat, Caithness, Sutherland and Easter Ross)

The hon. and learned Gentleman understood my body language and I understood his, but I confess that I did not understand the point that he was making. I am a little nonplussed by it and I apologise for my failure to comprehend. I believe that the amendments were devised to make a political point—a constitutional point, which in itself is quite important. Those who want to amend the Bill do not want the right of Parliament to deliberate, in the manner to which we are accustomed, curtailed or changed by an act of the judiciary. That is an important issue that should be discussed. However, the language in the amendment can cause nothing but confusion. Therefore, I hope that it will be resisted.

Anne McIntosh (Conservative, Vale of York)

I intend to do my level best to encourage my hon. and learned Friend the Member for Harborough (Mr. Garnier) to make an even more robust rejection of the proposal to incorporate the convention into UK law. I am sure that the Minister will agree that we share some confusion—having both been active in another place—about the European Court of Human Rights and the European Court of Justice in Luxembourg. Even greater confusion is caused by the fact that, for part of the year, the European Court of Human Rights meets in the same place as the European Parliament. The public are greatly confused by that. I vigorously support amendment No. 15. I am concerned about the impact that the convention, and particularly clause 4, will have on primary legislation. In view of the Bowman judgment, it is clear that, if the convention had already been incorporated into UK law, the courts would be seeking to repeal part of the Representation of the People Act. That is one of the questions that we should consider. I regret the intrusiveness and invasiveness of clause 4, and the impact—particularly following the Bowman judgment—that the convention will have when we adopt it into our political, electoral and judicial systems. The Strasbourg system is definitely invasive, and new legislation will have to be deemed Strasbourg-proof before we can adopt it, or we will have a plethora of court cases. Will the Government tell us what mechanism they envisage using to prepare future legislation in a Strasbourg-proof way?

Geoff Hoon (Labour, Ashfield)

I can deal with that point now. The previous Government ensured for eight years or so that draft legislation was consistent with the terms of the convention. Clause 6 is also absolutely clear. Procedures are already in place, and they will be strengthened by the Bill's passage.

Anne McIntosh (Conservative, Vale of York)

I am not sure that I am convinced by that answer, but I am grateful to the Minister. What concerns me most about clause 4 is that courts will be able to determine in future that some aspects of national law are incompatible with the convention. I am sure that the Government—the listening Government, the people's Government, they tell us—will appreciate that that could occur in politically sensitive areas, such as prisons, immigration and administrative matters, including judicial review. They may regret their proposal to incorporate the convention in United Kingdom law in toto. The amendment should be welcomed, because it would ensure that judges would say specifically why they believed any primary legislation to be incompatible with the European convention on human rights. The amendment would also give judges a clear indication that declarations of incompatibility should not be issued unless required to resolve a particular case before the court. I hope that the judge—I mean the Minister; I did not mean to elevate him to another Bench—will comment on that when he winds up. I do not mean to denigrate the judiciary in any way, but a substantial period will be needed if it is to adapt to its new responsibilities under clause 4. Similar problems were experienced in 1973 when the treaty of Rome was introduced to the UK. Courts and practitioners applying European law for the first time needed a substantial period to be educated—for want of a better word—on the impact of the treaty on the interpretation of legislation. I am delighted to say, Mr. Martin, that Scotland led the way in that regard, particularly through Professor J. D. B. Mitchell, of whom I had the great honour to be a student. We led the way because constitutional law courses in Scotland implemented a vigorous education for budding practitioners at an early stage. Present practitioners do not have that experience.

Geoff Hoon (Labour, Ashfield)

Was the hon. Lady happy with how the treaty of Rome was incorporated into UK law?

Anne McIntosh (Conservative, Vale of York)

It might be more appropriate to comment on that on some other occasion, as we have more pressing matters to discuss this evening. Perhaps the Minister would like to discuss it with me at greater length in one of the parliamentary bars, so that we do not take up the Committee's time. I commend the amendment to the Committee, and hope that the Government might be minded to support it.

Humfrey Malins (Conservative, Woking)

First, I declare an interest. I am a recorder of the Crown court and, for some years, I have been an acting metropolitan stipendiary magistrate, so I have a great deal of judicial experience behind me. That has enabled me to realise that, when I sit judicially, it is my job to apply the law, whereas in this House it is our job to make the law. It is terribly important to understand and to maintain those differences. When I spoke on Second Reading, I was vehement in my opposition to the principle of the Bill. I said that the danger was that it would effectively give the judges of this country powers to make law, whereas their job is to interpret it. The right hon.Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) was a little unkind to my right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer) when he accused him of launching an attack on the judiciary. My right hon. Friend did no such thing. He was rightly pointing to the different roles of the judiciary and Parliament, and saying that he feared that we might move towards a stage when the judiciary began to overlap into the fields that belong principally to Members of this House. He went no further—indeed, he was generous in his remarks about the judiciary. Clause 4 is the cutting edge of the Bill. It is the point where the convention will bite in particular litigation to enable the litigant to invite the judge to come to a conclusion different from that which he would have reached but for the convention. Thus the amendments, and the clause generally, are extremely important. I urge the Government to accept the amendments. I see hon. Members who I know have reasonable attitudes. I shall not name them, but a number are known to be sensible thinkers about these matters. If they listen to our arguments carefully, as I can see they are doing, they will inevitably take them on board, and are likely to support us later tonight. The past is in the past, and I must accept that my opposition to the Bill on Second Reading was not enough to carry the House on that occasion—not enough hon. Members took the same view. I said then, and I repeat tonight, that the roles of the judiciary and the legislature are, and should remain, entirely different. We must deal with the method by which the Government seek to give practical effect to the convention in English law. Having accepted the will of the House, it is important for me carefully to examine the problem, and to argue my corner about how best to give practical effect to the convention in our law. Surely we can all agree on the need for clarity rather than obscurity and confusion when choosing the method of giving effect to the convention. The Bill's method is to enable the judge to make a declaration of incompatibility between a provision of existing domestic law and a convention provision. There is no reason in principle why that provision of domestic law should be a statutory provision or a provision of delegated legislation; it could well refer to common law. I add that a declaration of incompatibility may occur between a provision of existing domestic law and a convention provision as already interpreted by the European Court of Human Rights. 9.30 pm The amendments, particularly amendment No. 15, ask the court properly to particularise the incompatibility. I hope to show why that is not only desirable but absolutely essential. Let us take a simple law case. It may arise under existing landlord and tenant or employment legislation—it matters not. Let us say that landlord and tenant legislation provides that a three-week period is reasonable notice for a change in the relationship between the parties. Suppose the court, on hearing argument, finds that the three-week period fails adequately to safeguard one or more convention rights. It would be unhelpful—indeed, arguably, faintly ludicrous—for the judge simply to say that and go no further. The judge should perhaps say what period would be a sufficient safeguard. One can think of Revenue cases, particularly those concerning penalty time limits, in which such a point might be highly relevant. In my hypothetical case, it is no good the judge simply issuing a declaration of incompatibility and saying that three weeks is not long enough: he must go further.

Robert Maclennan (Liberal Democrat, Caithness, Sutherland and Easter Ross)

Is not the hon. Gentleman, in making that suggestion, inviting the judge to usurp the legislative function and say what should be done? That is very much a matter for the House.

Humfrey Malins (Conservative, Woking)

As I continued to explore that argument, I asked myself that very question. Was I in fact suggesting that the judge should move into the legislative sphere? However, that is not my point. My point is that the judge should not simply issue the declaration of incompatibility but give much more explanation, so that the House and others know what the judge considers the problem to be. In my example of the three-week period in the relationship under landlord and tenant law on which the judge issues a declaration of incompatibility, such a statement is not enough. For example, what would the House do when faced with such a simple declaration of incompatibility? Would it remedy the point by substituting four, five or six weeks, only to have the same or a different judge saying later that that was not long enough? The law should not be a game of ping-pong between the courts and the elected House of Commons. There is a danger that that will happen unless the amendments are accepted. Here is an example of the problem as it currently exists. Under the Unfair Contract Terms Act 1977, a limitation clause in a contract may limit damages to £100,000, and the judge may strike it down as unreasonable. It could be argued that the unjustness in that case arises because we gave no power or duty to the judge to substitute a reasonable figure. Once the limit is judged unreasonable, the contract contains no limit: there is unlimited liability. There is no obligation on the judge in such a case to tell the parties what would be a reasonable provision, and thus enable them to plan their future affairs properly. We cannot allow such a situation to exist. The amendments are right, and the judge must be required to state what aspect of the provision is incompatible and to what degree. The judge should produce a fully particularised judgment, so that people know why he or she has come to such a conclusion. The parties—the people of this country if it is a common law point, and the House of Commons if it is a statutory point—should know exactly how to alter their respective affairs or the law so as to comply with the convention.

Geoff Hoon (Labour, Ashfield)

I have listened carefully to the hon. Gentleman's arguments, but some of them are a little far-fetched. Can he contemplate a decision by any of the courts listed in clause 4(5) that does not give carefully particularised reasons for the finding of incompatibility?

Humfrey Malins (Conservative, Woking)

If the Bill had stated that, the Opposition would not have tabled the amendment. The clause provides that the court may make a declaration of that incompatibility. We want to add the words setting out the nature and extent thereof in so far as arises from the nature of the case before the court". The Minister asked whether I. could imagine a case in which the court would not fully particularise the matter in such detail and with such observations.

Edward Leigh (Conservative, Gainsborough)

The Minister has at least done the House a service. Under Pepper v. Hart, a Minister's words—especially such a distinguished Minister as the hon. Gentleman—can be used by the courts to interpret the intentions of Parliament. Although the Minister will instruct his minions to vote down this sensible amendment, he has just said, in effect, that the courts should do precisely what the amendment would require them to do.

Dominic Grieve (Conservative, Beaconsfield)

I can think of a number of judgments of superior courts, including the House of Lords, which, while dealing with a precise point that had arisen before them, provided no guidelines on how the law might be complied with. That is precisely the point that the amendment is designed to address.

Humfrey Malins (Conservative, Woking)

My hon. Friend, who, like my hon. Friend the Member for Gainsborough (Mr. Leigh), has a distinguished career in the law, again makes a valid point. Conservative Members are afeared that the Bill means what it says. The Minister may correct me if I am wrong, but it says that a declaration of incompatibility will be issued. I have been asked whether I could imagine a situation in which such a declaration would not be full, covering all the points of the amendment. If the Minister is saying that he is absolutely certain that its spirit and wording would be observed in practice, we should be happy to hear it, but that is not in the Bill, which is why we are advancing these arguments. I must make a few concluding remarks, because the thrust of my arguments has, I hope, become clear. It has certainly become clear to me. Our amendments would help to prevent, or certainly discourage, judges from pushing for changes in our law that were not strictly necessary. My right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer) referred to that danger, and it lies ahead. The amendments would also discourage judges from getting involved in the political arena too much, and pressure groups from pushing too hard to open up a whole field in any particular case. It must be clear to Labour Members that the Minister has, by his words tonight, effectively accepted our amendment. Therefore, I am sure that, having heard the arguments, he will accept it and bring his colleagues with him into the Lobby with us. if he does, and if he recognises our concerns, we shall be satisfied.

Gerald Howarth (Conservative, Aldershot)

The clause goes to the heart of the Bill. My hon. and learned Friend the Member for Harborough (Mr. Garnier) was absolutely right to say that it is a collision point; I regard it as a recipe for permanent conflict between Parliament and our courts. I agree with my hon. and learned Friend's assertion and encourage him to go further in attacking the Government. He said that he acquitted them of seeking to destroy the constitution through the Bill. He is a reasonable man, which is a reason why he advanced that case. I am not of such charitable disposition. As I have said previously in the House, I believe that the Bill is one of a series of measures—on Scotland, the Welsh Assembly and the proposals for the European Parliament—that strike at the constitution. A constitutional arrangement that has served the people of Britain well is being systematically destroyed. That owes much to the vanity of the Prime Minister. He has no great economic issue to fight, because that was done by the Conservatives over 18 glorious years; therefore, he has turned his attention to wrecking the constitution. My hon. Friend the Member for Woking (Mr. Malins) said that people outside the Chamber would listen to the debate with great interest. I am afraid that he was joking, because our debates on the great constitutional issues, which affect the people of this country, are not being reported. We need only look to see the number of journalists taking careful note of what is said. My right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer) was right to say that the people have an interest in constitutional measures, but those issues are not being brought to their attention. As the Minister knows, people are much more interested in the Lord Chancellor's wallpaper. As the hon. Member for Sherwood (Mr. Tipping) knows, I played a small part—I should be the first to acknowledge that that is an important issue, but it is not half as important as the issues that we are debating. Consider the relative coverage that constitutional issues have been given by the media: Gazza, and Ginger Spice leaving the Spice Girls have commanded acres of coverage. One day, the people of Britain will wake up, and will see that all these changes are being made to our constitution.

Michael Martin (Deputy Speaker, Glasgow Springburn)

Order. I must ask the hon. Gentleman to confine himself to the amendment. The matters to which he is referring have nothing to do with it.

Gerald Howarth (Conservative, Aldershot)

You are very kind, Mr. Martin, but I am trying to draw attention to the importance of the issue. I think that what I am saying is pertinent to the amendment, which requires the courts, if they seek to strike down legislation on the ground that it is incompatible with a convention right, to give reasons for doing so. I think that such questions should be aired to a much wider public than they are now. The Bill strikes at the heart of the concept of the separation of powers. I do not share the benign, indeed complacent, view of the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan). He does not think it possible that judges would seek to challenge Parliament—but, as my right hon. Friend the Member for Suffolk, Coastal pointed out, judges are human beings like the rest of us. As I think my right hon. Friend said, they have a natural appetite for the extension of their powers, and that should be constrained. In this place, we should anticipate what might come to pass. There are enough eminent lawyers around—I single out just two, George Carman and Geoffrey Robertson—who quite enjoy the limelight. I cast no aspersions on them, of course—not tonight, anyway—but I think that, if the Bill becomes law, we could well be faced with a new breed of judge, who would seek—

Gerald Howarth (Conservative, Aldershot)

I am grateful for your guidance, Mr. Martin. We have been discussing the separation of powers, and how the amendments relate to it. My point is that there is a grave danger that the courts will seek to exercise new powers that the Bill confers on them. The amendments merely require them to explain why they seek to strike down laws enacted by this sovereign Parliament.

John Gummer (Conservative, Suffolk Coastal)

May I return my hon. Friend to the subject of the amendment? Its purpose, surely, is specifically to constrain the human condition. I am sorry that the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) took it so personally; I merely said that we were all heir to the same danger—the danger of wanting greater rather than lesser powers. That seems manifestly true to me, and the amendment would enable us to restrain such powers in an elegant but important way.

Gerald Howarth (Conservative, Aldershot)

My right hon. Friend has made his case eloquently, and he is entirely right. I hope that the complacency of the right hon. Member for Caithness, Sutherland and Easter Ross will be noted, because I think it extremely dangerous. It should be made clear that, unless the amendment is accepted, the courts may seek to overthrow the rights of our Parliament. In October last year, in an interesting article in The Times, Sir Brian Cubbon—formerly Permanent Under-Secretary of State at the Home Office—wrote: The redress of grievances has been a traditional role of the House of Commons. The Bill would shift that responsibility to the courts over the whole field of what are called human rights in the European Convention. This goes far beyond the present scope of judicial review … Rights under the convention cover many of the grievances which MPs receive from their constituents about public authorities. My hon. Friend the Member for Woking said that pressure groups, having failed to impress their case on Parliament, might seek to come not to this place but to the courts, where they will argue their case in the hope that they will enable the judges to strike down laws that were enacted by Parliament. My hon. Friend the Member for Beaconsfield (Mr. Grieve) wishes to participate in the debate, so I shall conclude by saying that Mr. Francis Bennion, an eminent constitutional lawyer, has said that the Bill is neither a mirror image of the Strasbourg convention nor free standing, and could enable the courts not to reflect the Strasbourg convention but to interpret it in their own way. Will judges be required to interpret the laws of the land as being consistent with the European convention on human rights or will they be free to develop their own law? It is important to establish that. The amendment is modest, and the Minister has acknowledged the case for it. If he agrees with its thrust, accepting it will do him no harm, and will clearly show the public exactly what we are trying to achieve.

Dominic Grieve (Conservative, Beaconsfield)

I do not wish it to be thought that the only speeches supporting the amendments came from those who, on broad principle, were against the Bill. As I think the Minister knows, I support incorporation, although there are some matters that I wish to scrutinise and criticise during the passage of the legislation. I appreciate the point, which I am sure the Minister will make, that one would normally expect a court, when pronouncing on a question of incompatibility, to set out the nature and the extent of that incompatibility as it arises from the nature of the case that is before the court. In principle, that is what one would expect, but, in my experience, courts occasionally do not do that. It is an indispensable prerequisite to Parliament being able to make an objective and correct judgment on incompatibility and on how it wishes to proceed for that decision to be made here. One of the anxieties that has been expressed at length during consideration of the Bill and with which I broadly disagree, although I understand its nature, is that the courts will start to substitute themselves for Parliament in ensuring the freedoms of the people. As I have said, this legislation will work and will go down in history as being great if it is subsequently perceived that Parliament and the courts are working in tandem to achieve good human rights in accordance with the convention and its incorporation in our national law. It follows that, if primary legislation is considered to be incompatible with the terms of the Bill and the incorporated convention—an event which, I hope, will rarely occur—we should be clear about what the court has said is the problem, and there should be public consideration of the matter. As I said on Second Reading, the Bill is not written in stone. On occasions, Parliament, having considered the matter carefully, might decide that, notwithstanding what has been said, it wishes to derogate from the court's decision, for sound public policy reasons. I hope that it would not have to do that, but it might. It seems that little would be lost by including amendments Nos. 15 and 16, which relate to subordinate legislation, and that something might be gained, although I would understand the Minister saying, "Normally, I would expect this to be dealt with without any specific reference to it being made." Nevertheless, if no harm would result from including the amendment—I do not see what harm would result—it could properly be put in the Bill. The matter is somewhat different in respect of amendment No. 103. It requests that a court should not make a declaration of incompatibility unless it is necessary for the purpose of determining the matter before it. I had some hesitation about that when I first considered it, because what the courts may say in obiter parts of their judgment is important for lawyers in respect of similar cases, but it would still be open to a court to reveal in the course of a judgment its anxiety over some passage relating to a case not before it, without making a declaration of incompatibility that did not relate to the matter before it. I do not think that the amendment will fetter a court's ability to make obiter pronouncements suggesting that, in some other respect, something that it is considering may not be compatible with the convention. I therefore ask the Minister to consider that amendment as well, although I would be not be as worried about it not being made as I would be about the other two amendments not being accepted.

Geoff Hoon (Labour, Ashfield)

I agree with Opposition Members to this extent. Clause 4 is central to the careful compromise that the Government propose in the Bill—a compromise between parliamentary sovereignty and the need to give proper effect to the European convention. However, the Government will resist the Opposition amendments because they will unnecessarily disturb the careful balance that the Government have sought to establish. Amendments Nos. 15 and 16 would require a court making a declaration of incompatibility to set out the nature and extent of the incompatibility in so far as that arose from the nature of the case before the court. It is important to remind the Committee of what the court will do when it makes a declaration of incompatibility by virtue of clause 4. By virtue of clause 3, the court will have done everything possible to find an interpretation of the relevant legislation that is compatible with the convention rights. If one of the courts that is specified in clause 4 is satisfied that it is simply not possible to find a compatible interpretation, it will be able to say so formally by means of a declaration of incompatibility. That is most likely to have followed the procedure that is set out in clause 5 giving the Crown the right to intervene. With great respect to the hon. Member for Woking (Mr. Malins), I believe that his description of courts suggested that they would pronounce on incompatibility almost at the drop of a hat. There will be a vigorous contest before a court, and both sides of the argument will be extensively debated and discussed before that court reaches a decision. As I have said in an intervention, it will be obvious that the matter has been explored in considerable detail and, clearly, one of the higher courts that are set out in clauses 4 and 5 will be required to explain in some detail the reasons for issuing the declaration. A declaration of incompatibility will be a statement that, in the court's view, there is a problem with a piece of legislation in terms of its compatibility with the convention, and it is not open to the court itself to rectify or to make good the legislation. That may happen because a Government may have deliberately provided in a Bill that it is not to be open to the court to strike down primary legislation. That course of action could have been considered by the Government when making our proposals. As we heard from the hon. and learned Member for Harborough (Mr. Garnier), that approach is adopted in some countries when dealing with such measures. Nevertheless, the Government decided that, in the interests of maintaining parliamentary sovereignty, that would not be the course we would commend to Parliament. Interestingly, great stress was placed on parliamentary sovereignty in our earlier discussions, but there has been a curious absence of it in this debate. We have placed parliamentary sovereignty at the centre of the proposals and we have not allowed the courts to strike down legislation. By enabling the courts to make a declaration of incompatibility, the situation can be brought to the notice of Parliament and the deficiency subsequently rectified by Parliament, whether by primary legislation or by approving a remedial order. That allows Parliament precisely the opportunity for which Opposition Members have been arguing. I am sorry that they have not accepted that during my comments. 10 pm Perhaps I should turn in more detail to the formulation offered in amendments Nos. 15 and 16. I doubt whether a requirement on the court to explain the "nature and extent" of the incompatibility would add anything to the Bill, from anyone's point of view. As the Bill stands, I would expect a court, when making a declaration, to explain what the difficulty was and why it had been impossible to overcome it by constructive interpretation of clause 3. How the declaration arose would be apparent from the judgment as a whole. A legislative provision will be either compatible or incompatible. The idea that it is possible for a court to certify the extent of the incompatibility is patent nonsense—forgive me for putting it so brutally. It is not possible to certify the extent of an incompatibility. There is either a breach of the convention or there is not. That part of the amendments is patently absurd. There will not be degrees of incompatibility, or any difference between one kind of incompatibility and another. I am not sure what is meant by the "nature" of the case before the court. Does that refer to distinctions between civil and criminal cases, between cases involving juveniles and cases involving adults, between long and short cases, or between cases with a jury and cases without a jury? Not one Opposition Member has troubled to try to explain that aspect. Even if we accepted such wording, why is the nature of the case relevant to whether legislation can or cannot be interpreted compatibly with the convention? The implication is that legislation could mean one thing in one case and another in another case. That hardly strikes me as a sound basis for judicial interpretation. Having thought more carefully about the amendment, I hope that Opposition Members will accept that they are not arguing for anything terribly sensible. That applies equally to amendment No. 103. The purpose of a declaration is to draw attention to a legislative incompatibility with the convention and to act as a trigger for a remedial order under clauses 10 to 12. A declaration of incompatibility has no effect on the case before the court. Clause 4(6) expressly provides that a declaration does not affect the validity, continuing operation or enforcement of the relevant legislative provision. This is because we think that any decision to change primary legislation should be reserved for the consideration of Parliament. Again, the Government are upholding the sovereignty of Parliament and are not in any way breaching that principle. Amendment No. 103 would prevent a declaration from being made unless that were specifically necessary to determine the case in question, yet the kinds of cases where the issues are likely to arise will almost inevitably be complex and involve different issues, each of which will have to be resolved by the court. Under this amendment, it is highly unlikely that a declaration of incompatibility would ever be made. That may be the real intention of the Opposition. [Interruption.]

Geoff Hoon (Labour, Ashfield)

Opposition Members have been anxiously awaiting these observations. I am sorry that they appear to find them less than exciting. It is important that we deal properly with incompatibility and the declaration that might follow. Amendment No. 103 simply does not deal with it, and has no place in the scheme that we have established in clause 4. The Government believe that this group of amendments is fundamentally misconceived. I do not believe that the amendments have been read carefully by Opposition Members. I therefore invite the hon. and learned Member for Harborough to seek leave to withdraw amendment No. 15.

Edward Garnier (Conservative, Harborough)

I am grateful for this brief opportunity to respond to some of the points made in this debate, particularly those made by my right hon. and hon. Friends. In a considered and cogent speech, my right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer) produced four reasons why this group of amendments should be supported: in defence of the people; in defence of the Government; in defence of the House; and in defence of the courts. Nothing that has fallen from the Minister's lips has done anything to persuade either me or my right hon. and hon. Friends that the arguments in favour of the amendments have been in any way defeated. The right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) hides within his gentle exterior a waspish tongue. I am not in the least bit surprised that his nickname across the county that he represents is "Tiger". Despite his waspish tongue, he did not say anything to knock our arguments on the head one jot. The substance of his complaint was that the language of amendment No. 15 was confusing. That is a matter for him, but it seems pretty clear to us. My hon. Friends the Members for Vale of York (Miss McIntosh) and for Woking (Mr. Malins) spoke with experience of membership of the House and, in the case of my hon. Friend the Member for Vale of York, as a Member of the European Parliament and Scottish law graduate, and, in the case of my hon. Friend the Member for Woking, as a recorder and stipendiary magistrate, with practical experience of the judicial function. Both realise the dangers of breaking down the barriers separating two of the three limbs of our constitution. My hon. Friend the Member for Woking also very carefully suggested that the incompatibility which is to be declared under clause 4 must be properly particularised. Nothing has been said by the Minister to dissuade me from the rightness of that argument. I am happy to say that my hon. Friend the Member for Aldershot (Mr. Howarth) gave a characteristically robust performance. He was certainly not put off his stride by some of the interventions with which he dealt so expertly. My hon. Friend the Member for Beaconsfield (Mr. Grieve) has become a noted star of our debates on both the Human Rights Bill and the other constitutional issues with which he has had to deal. He supported amendment No. 15 from the interesting position of someone who supports incorporation. He deserves to be listened to with particular attention. It is perhaps worth reminding the Minister of a point that he mentioned—the European Court of Human Rights does not distinguish between obiter dicta and the ratio of a judgment. The Minister promised much, but delivered nothing. He is complacent. He is always complacent—on this subject and on others—about the prospect of a constitutional collision about which we have warned. He displayed a touching faith in his own rhetoric, without understanding what has been going on in this debate. Not a single argument that he advanced has persuaded me or my hon. Friends that the matter should be left to lie. I invite my hon. Friends to join me in the Lobby in supporting the amendment.

Austin Mitchell (Labour, Great Grimsby)

I beg to move amendment No. 107, in page 3, line 24, 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'.

Austin Mitchell (Labour, Great Grimsby)

The amendments would extend incorporation of the European convention to the Isle of Man and the Channel Islands. I suppose that the only phrase to describe them is "semi-independent statelets", but they have a unique status as dependencies of the Crown, too. They are Britain's offshore anomalies, because, although they are responsible for their own domestic law, financial affairs and tax regimes, the United Kingdom has the overall responsibility for good government in the islands. The United Kingdom can legislate for the islands; it has the paramount power to do so. However, in practice, it does not do so except on matters involving international treaties and international agreements—such as the incorporation of the European convention on human rights, which we signed on their behalf at the outset. Paragraph 1472 of the Kilbrandon commission's report on the constitution, dated 1973, said Parliament does have power to legislate for the Islands without their consent on any matter in order to give effect to an international agreement"— such as the European convention on human rights. The power was used in relation to the Extradition Act 1989, which was extended to the Channel Islands as if they were part of the United Kingdom, and also in connection with the Marine, etc., Broadcasting (Offences) Act 1967, which was effectively imposed on the Isle of Man. The British Government's power to legislate is appropriate, as they have the responsibility to ensure that rights are maintained in the islands. Moreover, the British Government have to answer cases brought to Strasbourg about infringements of rights on the islands—we signed the convention on the islands' behalf. Indeed, in the birching case, the European Court ruled that convention rights applied to the Isle of Man. My argument is that the convention should be incorporated not only into British law but into the law of the islands. Rights should be protected in these small democracies and dependencies, which are intimate and closed—they are, in many respects, living loopholes from the 20th century. There is no real party democracy that could make the legislature accountable, no open government and no base for dissent. The islands have their own tax regimes, which must cost our Exchequer billions of pounds in lost revenues. They do not have clear, powerful, effective financial regulations—they have become little offshore entrepots for the manipulation of money. Powers are not separated: in Jersey, for example, the Bailiff—the Lord Chancellor—is also the Speaker of the States, the Attorney-General and the Solicitor-General sit in the States and there is no independent Director of Public Prosecutions. Women have no employment or benefits rights. The islands have all the intimacies and pressures of any small community—they are like Salem without the witches. In Jersey, which is the richest of them, power is, in effect, controlled by the wealthy island elite—the island establishment—which has a vested interest in providing services to finance. Many members of the elite are business men or maintainers of name plates for incoming companies; many are involved with Jersey banks and the offshoots of other banks in Jersey that manipulate money. The elite controls power through the parliamentary institutions. It also controls the media—Senator Walker owns the Jersey Evening Post, which is, therefore, hardly likely to be a vibrant source of dissent. The islands have been humorously described—by me—as one-party states run by the freemasons. There are no parties and no opposition, so the regimes are cloying and potentially corrupt, because, in Jersey in particular, the governing elite does so well out of the provision of facilities for financial services, which give such a rich living—£200 billion is handled in the Jersey banks and financial institutions, and financial services provide more than 50 per cent. of the gross domestic product of Jersey. If the people who control political power are also involved in the financial system, that system will be run for their interests and for those of the offshore capitalism that washes through, but leaves little residue for the people of the islands—there is no great trickle-down effect for the mass of the people. It is also possible that they will use their power to control legislation to further their own interests. In other words, legislation could be effectively up for sale. They resent any interference by the British Government or any attempt to control what is going on or to demand stricter regulation or a more effective tax regime. Two years ago, however, they were perfectly prepared to intervene in the financial affairs of the United Kingdom in respect of limited liability partnerships. Big accountancy firms, terrified of lawsuits resulting from bad audits, were lobbying the British Government, who were then of another party, to give them limited liability status. Rather than becoming joint stock companies as they were given the power to do under the Companies Act 1989—

Austin Mitchell (Labour, Great Grimsby)

Amendment No. 107 would extend the incorporation of the convention into the islands' legislation. Rights are threatened by the dominance of the financial interests. Those rights can best be protected by the incorporation of the convention. A row that resulted in a real threat to rights in Jersey was caused by the attempt two years ago to interfere in the United Kingdom financial system in respect of limited liability partnerships in Jersey. Effectively, two accountancy houses bought legislation in Jersey to limit liability. The legislation was drawn up by a London barrister at a cost of £1 million, and was promised a fast-track passage into law by the Jersey States. They sought to interfere here, as the idea was that they would force the British Government to follow suit. The protest against the rapid passage of that legislation resulted in a threat to the rights of Senator Syvaret, whose case is an illustration of the need to incorporate the convention into the legislation of the islands. Any threat to intervene there is bitterly resented. The establishment in Jersey tries to maintain good relations with the Minister—usually a peer at the Home Office—who is richly and lavishly entertained. One establishment talks rhubarb to another establishment. Not satisfied with that, it employs extensive public relations advice, which is appropriate to the modern world of spin doctors and public relations. The Max Clifford of Jersey is the Shandwick public affairs consultancy, which was paid £225,000 until the row over limited liability partnerships, when its fee was upped by another £200,000, so nearly £500,000 was paid out of the taxes of the people of Jersey to defend the interests of the elite. That involved all sorts of activities, which I shall not go into as they would divert me from the incorporation of the convention on human rights into the laws of Jersey. However, I should mention in passing that part of the £500,000 that was spent on public relations as a result of the row over limited liability partnerships was paid in writing letters to me. Shandwick reported to the Jersey States about my article, saying: I have ensured that Labour party key people have been briefed on the Jersey line which was against me. It continued: Mr. Mitchell is regarded as being a liability by the Labour party". I am sure that my right hon. Friend will want to assure the people of Jersey that that is not the case, and that I am indeed regarded as an asset by the Labour party.

Jack Straw (Labour, Blackburn)

I give my very old and honourable Friend that categorical assurance.

Austin Mitchell (Labour, Great Grimsby)

I am most grateful to my right hon. Friend. That stage-managed intervention gives me a great deal of pleasure. In contrast to what was said about me, it was said about my hon. Friend the Member for North Durham (Mr. Radice): He is not likely to be made a member of the Government but I think he is worth targeting because of his level of knowledge and because he is still listened to by those in senior positions. That is picking and choosing in the Labour party, but it is part of public relations—[Interruption.] I am leaving the topic. I want to deal with the abridgement of rights that resulted from the attempt to limit liability for partnerships of accountancy houses, which was passed, under the fast-track procedure, by the Jersey States. The problem is that, when the elite feels threatened—when there is a threat to its vested financial interests and the provision of services—whether it be by the British Government or by critics in this country, it is prepared to use all the power and resources at its disposal to beat off that threat, whether it is internal or external. That often produces abridgements of rights, which are endemic in a system where there is no separation of powers; where the Executive is also the legislature; where there is no meaningful opposition; and where there is no protection of rights. I have already referred to the lack of protection of the rights of women. I was told in a telephone conversation today that a man in Sark still has the right to beat his wife, provided that the stick is thinner than his thumb and he does not draw blood. I do not want to provoke a rush of public school Conservatives wanting to settle in the island as a result of that revelation, but it is a sign of the feudal nature of the regime in Sark and the abuses of rights that it produces. The newspapers cite numerous instances of that. In Guernsey, not long ago, there was the case of three men being locked up over a bank holiday without trial. The case did not come to court until five months later, and they were acquitted. A construction worker on the island of Brecqhou who was arrested in a drugs case was taken from Guernsey to Sark and charged, probably in the wrong jurisdiction, subjected to a trial in French—a language that he did not speak—and then told by a lawyer on the telephone, "You might as well plead guilty and get it over with." His rights were abridged. There is the case of the Barclay brothers, the owners of The Scotsman. It involved an abridgement of rights. David Barclay wrote to me saying: I have discovered by bitter experience over the past three or four years, and to my immense cost, the lack of natural justice and democratic rights in the Bailiwick of Guernsey and the island of Sark". He said that, on Sark: The Seigneur is the head of the Chief Pleas, Sark's Parliament, which is made up of 40 unelected members and he collects a thirteenth of the price of every property purchased on the island. This money is for his own personal benefit"— it is a marvellous racket— and serves no economic benefit whatsoever to the community. He appoints the Seneschal; he appoints the Prevot (Sheriff); he appoints the Greffier; he appoints the Treasurer and he approves the Constable. What defence of rights is there in such a situation? David Barclay continued: The previous owner of Brecqhou"— which the Barclay brothers now own— was forced into a legal dispute to establish rightful ownership of the island under the feudal laws of primogeniture. There was a long dispute over which court applied—Sark or Guernsey. The case was referred to Guernsey, but after six years it remained unresolved. The owner was told that the court case could go on for another six years. Justice denied is a loss of rights. There is no appeal; there is no check on that sort of excess, which is now affecting the Barclay brothers. That is an appalling situation. The Barclay brothers are wealthy enough to take care of themselves, but it is difficult to do so when there is no protection for rights. The case of Senator Syvaret arose from limited liability partnerships. When a Bill was rushed through the Jersey States, he drew attention to a conflict of interest by pointing out that Senator Reg Jeune was part of Mourant, du Feu and Jeune, which was acting for Price Waterhouse and Ernst and Young in trying to pass the Bill. There is a fascinating precedent in that Bill, which we could observe. The introduction expresses Jersey's indebtedness to Ernst and Young and Price Waterhouse for writing the Bill. Perhaps we could have sponsored legislation, too. It is a marvellous system. Thus the Bill was being handled by Mourant, du Feu and Jeune, while Senator Jeune was urging its speedy passage. When Senator Syvaret drew attention to that conflict of interest, he was suspended indefinitely, unless he withdrew his remarks and apologised. He was deprived of his rights as a legislator, and his constituents were deprived of representation. Basic rights were denied, and there was no appeal. Appeals to the Home Office Minister then responsible produced no result. I tabled an early-day motion that was well supported, and which produced a change of heart in Jersey. Senator Syvaret was allowed back without making an apology. They huddled him in by the back door. He is involved in a legal action over the deprivation of his rights, so that the case can go to Strasbourg, but that will remain a long, difficult road unless we incorporate the convention into the laws of all the islands, as my amendments would do. We have the power to do that, and we have a moral obligation to do it. If we do not, in my view, and in the view of lawyers whom I have read, we shall be in breach of article 14 of the convention, if it is read alongside article 6. We are responsible for the islands, and when Senator Syvaret's case reaches Strasbourg, it will be titled Syvaret v. the United Kingdom. What formidable odds the senator from little Jersey faces as he takes on the entire United Kingdom. We are responsible for derelictions of rights in the islands, and we have a right to act under the external agreement. The royal commission on the constitution of 1973 made that explicit. My right hon. Friend the Home Secretary is a canny man. Perhaps he is doing a nice guy, nasty guy routine, and he might portray me as a mean, moody monster who threatens the independence and integrity of the islands. My right hon. Friend knows that that is not my nature; I am warm and cuddly, and I have a vacuous smile for all, as any new Labour politician must. To portray me as some kind of brute or monster, trampling on the freedom of the islands, would be wrong. I know—I have read it in the papers, and I have been handed letters that confirm it—that the fact that the amendments were tabled encouraged the Under-Secretary, Lord Williams of Mostyn, to go to Guernsey. He did not get to Jersey, because there was a strike, so the Jersey elite paddled over in rowing boats to consult him. They agreed to pass the legislation, but I want to know why it should be done that way. Would it not be better to do it for ourselves? Then there would be no backsliding, and it would be done without delay. The legislative processes in the islands are very slow—unless they are financed by Price Waterhouse or Ernst and Young. It can take three years, and rights would still be abused in that period. I notice from the newspapers that Senator Pierre Horsfall of Jersey said that the Bailiff told Lord Williams that, when Sir Philip Bailhache was previously Attorney-General—he is now the Bailiff— Jersey was on the verge of adopting the convention but was asked not to do so by the Home Office as the UK Government did not want to be seen to be following a dependency in adopting the provisions of the Human Rights Convention. That cannot possibly be true. I should like my right hon. Friend to comment on it. 10.45 pm An editorial in the Guernsey Evening Press says, more or less, that I should mind my own business. It states: We would rather see the Labour MP turn his attention to real problems in the UK, such as the growing hospital waiting lists, prison overcrowding and drugs". That comes from an island where there is a shortage of nurses and prison staff because they are not paid enough and there is a growing drugs problem. The island cannot afford the latest medical technology, and urgent and serious cases are sent to Southampton for treatment. The British health service and all British social services are being drained of billions of pounds through the taxes and fiddles that are going on in the independent financial regime there. We shall not ratify the fourth protocol at present, for reasons that were explained to me by the Home Office Minister. I wish to put a further question to my right hon. Friend about the fourth protocol, which has been put to me from Jersey. Is it possible to include the fourth protocol in any Jersey Bill if it is not included in the British Bill—and if not, why not? Is there any reason why Jersey or Guernsey could not introduce the fourth protocol in local Bills, even if the UK does not? I am afraid that I have spoken for too long, so I shall bring my remarks to a conclusion. Many other hon. Members want to participate in the debate and give their views on offshore havens—those curious offshore anomalies. I know that my right hon. Friend is interested in and concerned about the issue. He has demonstrated his concern by initiating an inquiry into the regulatory regime. I hope that he will rush to accept my amendment, so that we can get the matter over with without delay or backsliding from the islands. If not, I hope that he has bankable assurances from the islands that they will legislate for themselves if he is anxious to maintain the convention. In my view, it is not necessary to do so because I want the rights of the masses of ordinary people in the islands—not those of the elite, who can take care of themselves—to be protected, so that we can make the islands fit for people, not just for money.

Robert Maclennan (Liberal Democrat, Caithness, Sutherland and Easter Ross)

The hon. Member for Great Grimsby (Mr. Mitchell) has raised a valuable issue. In another place, my noble Friend Lord Lester of Herne Hill gave my party's view, which is broadly sympathetic to the hon. Gentleman's objectives, and we support the principle of incorporation for the offshore dependencies. It is not necessary to go into all the circumstances that he has adduced in support of his argument, or even to adopt his reasoning. However, there is no doubt about our ability to do what he suggests.

Austin Mitchell (Labour, Great Grimsby)

I omitted to express my indebtedness to Lord Lester, who wrote the amendments and provided me with helpful support and advice. I am grateful to him. I thank the right hon. Gentleman for giving me the opportunity to say that.

Robert Maclennan (Liberal Democrat, Caithness, Sutherland and Easter Ross)

In turn, I am grateful to the hon. Member for Great Grimsby, as my noble Friend will be. This country's obligation to take the rights of those living in those dependencies seriously is undoubted. How that is done—whether in the Bill or by the legislatures of the islands themselves—is of secondary importance. What is crucial is that it be done. The hon. Member for Great Grimsby has said that it is likely that it will be done within the islands, or at least that such an intention has been expressed, and I am advised that it is at least probable. That would not necessarily have happened if the issue had not been pressed, as it has been by the hon. Gentleman, and if the House had not expressed strong concern about regularising the position. I do not doubt that one point that surprises many other countries about our adherence to the convention is that we did not long ago provide domestic remedies designed to give effect to the convention rights. Equivalent legislation was certainly passed in all the other signatory countries. It would be highly anomalous if the islands were to remain outwith the convention scheme under which domestic remedies are made available to give effect to the rights. I hope that that view will have been heard in all the islands and that we shall have no more Manx birching cases being contested in Strasbourg, because they can be handled in Douglas.

Jack Straw (Labour, Blackburn)

I am grateful to my hon. Friend the Member for Great Grimsby (Mr. Mitchell) for tabling the amendments and raising this important issue, just as the Government were grateful in the other place for the way in which Lord Lester raised the matter there. As we have heard, the amendments would apply the Bill's provisions in various ways to the Channel Islands and the Isle of Man. My hon. Friend has pointed out that the United Kingdom is obliged to ensure that the islands comply with the convention and that there is a right of individual petition to the convention institutions in Strasbourg in respect of the islands, but that the convention does not at present have effect in their domestic law. I am happy to tell the Committee that the island authorities have made it clear that they want to bring rights home to the islands, just as we are doing in the United Kingdom. Before I move on to the detail of that, it may assist the Committee if I say something about the constitutional relationship between the United Kingdom and the islands. That was set out in detail in the report of the royal commission on the constitution in 1973—the Kilbrandon report. My hon. Friend referred in particular to paragraph 1494 and the conclusions in paragraph 1513. Briefly, the conclusion of the Kilbrandon report is that the United Kingdom Government are responsible for the defence and international relations of the islands, and the Crown is ultimately responsible for their good government. It falls to the Home Secretary to advise the Crown on the exercise of those duties and responsibilities. The United Kingdom Parliament has the power to legislate for the islands, but it would exercise that power without their agreement in relation to domestic matters only in the most exceptional circumstances. A domestic circumstance that also affected all the countries that make up the United Kingdom—and, to some extent, had international effects—which was cited at length in the Kilbrandon report, was the issue, which those of us of a certain age remember only too well, of the so-called pirate radio stations that were set up off the shore of the Isle of Man in the early 1960s. Some of us still remember the catch tune of Radio Caroline. Much of the noise harassment that some of us now suffer could be said to have flowed from that experiment. Those were exceptional circumstances: legislation on domestic matters usually takes the form of laws enacted by the island legislatures, although they are subject to endorsement by me as Secretary of State for the Home Department and by the Privy Council. United Kingdom laws are sometimes extended to the islands with their agreement. We consulted the island authorities about the extension of the Bill to them. All three said that they did not wish it to be so extended, and, as we want to maintain satisfactory relations with the islands, we paid careful attention to their views, as always. The Committee will be glad to know that my noble Friend Lord Williams, the Minister with responsibility for the Channel Islands and the Isle of Man, has undertaken a series of visits to find out from the island authorities what plans they have in the human rights field. I am pleased to say that their responses have all been positive. Each of the island authorities has made clear its intentions with respect to the Bill and the incorporation in its domestic law of the European convention. I have placed copies of their public statements and letters in the Library and have made them available to the official Opposition, to the Liberal Democrats and to my hon. Friend the Member for Great Grimsby. It is worth pointing out that Jersey has fairly said that, six years ago, under the previous Administration, a proposal that the island should enact legislation to incorporate the European convention was raised with Home Office officials and was discussed informally with the Secretary-General of the Commission in Strasbourg. The island's Attorney-General was informed at that time by officials that the Home Office did not favour the island acting in advance of the United Kingdom, so the matter was shelved. Consultation goes both ways, and the previous Government, for reasons that I understand, but do not agree with, decided that they did not want incorporation of the convention in the United Kingdom of Great Britain and Northern Ireland, and asked the island authorities to follow suit. The Bailiff of Jersey has now made it clear that the insular authorities wish to confirm their previously declared intention to progress the matter of legislation to incorporate the European Convention on Human Rights into Jersey law, having regard to the particular circumstances of the Island, once the United Kingdom Bill has completed its progress through Parliament in Westminster. The Bailiffs letter goes on: The Insular Authorities confidently expect to have a draft law with the Home Office for pre audit in the normal way by the end of this year. The States of Guernsey issued a public statement on 22 May. The President of the Advisory and Finance Committee said: The States Advisory and Finance Committee intends to recommend to the States of Guernsey that legislation be enacted to incorporate the convention— having regard to the particular circumstances of the Island". He said that, once the Bill has become law, recommendations will be laid before the States of Guernsey. He added: The Committee is confident that it will be possible to submit a draft law to the Home Office for pre-audit before the end of this year. In December 1997, the Isle of Man made it clear that it intended to introduce legislation to give effect in Manx law to the convention on human rights. It says: Before any Government Bill is introduced in the House of Keys, a draft is always sent to the Home Office for their comments, if necessary after consultation with other United Kingdom Departments, and appropriate measures are taken to consult local interests. In the light of those statements, I hope that the Committee will recognise that the Governments of each of the three islands are committed to introducing legislation fully to incorporate the European convention into their own law and to consult me, my officials and the Government more widely on the precise terms of that incorporation. I believe that that is a satisfactory outcome.

Jim Cousins (Labour, Newcastle upon Tyne Central)

Will my right hon. Friend give way?

Jack Straw (Labour, Blackburn)

Of course, in a moment. I hope that, in the light of those clear undertakings, my hon. Friend the Member for Great Grimsby will see fit to withdraw the amendment. My hon. Friend asked whether any of the island authorities could incorporate into their domestic law the fourth protocol of the convention, even though it is not being incorporated into the Bill. The answer is that they cannot incorporate any part of the convention that the United Kingdom and the Crown, as high contracting party to the convention, have not accepted. That important part of our relationship with the islands gives the Crown and the United Kingdom Parliament ultimate authority over them we, and not they, enter into all international obligations, which are then binding on the islands. That said, it would none the less be open to each of the island authorities and Parliaments, should they want to, to write the terms of the fourth protocol, or of any other protocol not incorporated into the Bill, into their domestic law.

Jim Cousins (Labour, Newcastle upon Tyne Central)

My right hon. Friend's remarks have been extremely helpful—indeed, fascinating—but may I draw his attention to the fact that the third protocol of the treaty of accession to the treaty of Rome, which was passed by the United Kingdom Parliament, specifically exempts the Crown dependencies from participating in the European Union for the purposes of people, finance and capital? They participate in the EU solely for the purpose of movement of goods for trading. Is he satisfied that the rather anomalous position of the Crown dependencies within the EU provides the right constitutional foundation for fully satisfying the terms of the Bill?

Jack Straw (Labour, Blackburn)

My hon. Friend raises an interesting point. I shall not detain the Committee, because we are due to finish this business in 10 minutes, except to say that, as part of the somewhat onerous duties of the presidency of the European Union, I spent two and a half days in Brussels last week as President of the Justice and Home Affairs Council. A lot of time was devoted to the extent to which the islands were subject to various treaties under the treaty of Rome. We are dealing with a convention arising not under the treaty of Rome and the European Communities treaties, but under the Council of Europe, of which we have been a member for many more years than we have been a member of the European Communities. The position in respect of the European Union and the islands is complicated, not only because of what the islands desire, but because of difficulties for Gibraltar and other places—not dependencies of the United Kingdom—over how such territories should be dealt with in those treaties. Similar problems arise in respect of Spanish dependencies, for example, but in the Justice and Home Affairs Council last week, we agreed that a convention on a European judicial network should apply to the islands. That will not directly impose obligations on them, but will give them some discretion. As we had been unable to consult, I did not accept a proposal from other member states that the islands should, without consultation, be made subject to the Eurodac convention on the fingerprinting of asylum seekers and illegal immigrants, and to the convention on driving disqualifications. Sark has been referred to. I had to point out to some colleagues in the Justice and Home Affairs Council that, whatever else one may worry about on Sark, driving disqualifications should not keep us up all night. As I think the Committee famously knows, there is only one vehicle on Sark, which I understand is a Daimler. In the light of what I have said, and the clear undertakings given by the island authorities, I hope that my hon. Friend will seek leave to withdraw his amendment.

The rest of the debate is in Hansard.