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Ports of Entry (Special Status) (No. 2)
Mr. Gwyn Prosser accordingly presented a Bill to make provision for special status for ports of entry to the United Kingdom so far as the law affecting local government and policing is concerned; and for related purposes: And the same was read the First time; and ordered to be read a Second time on Friday 3 July, and to be printed [Bill 192].
Orders of the Day
Human Rights Bill [Lords]
Sir Nicholas Lyell (North-East Bedfordshire): I beg to move amendment No. 1, in page 1, line 8, leave out '12 and'.
The Chairman of Ways and Means (Sir Alan Haselhurst): With this, it will be convenient to discuss amendment No. 99, in schedule 1, page 18, line 23, at end insert--'Article 13--
Sir Nicholas Lyell:
The amendments are exploratory. They would insert into the Bill article 13 of the convention. The reason why we wish to explore the omission of that article from the Bill and the difference that might be made if it were inserted relates to our primary aims for this legislation, which I hope the Home Secretary will say the Government share. However, even if they do share them, we doubt whether they have achieved them yet.
We have already expressed our doubts about the wisdom of incorporation of the convention, but, if there is to be incorporation, I hope that these three points are uncontroversial. First, one of the benefits of incorporation is that British judges would have an opportunity to have input into the fashioning of convention law. Some time ago, I wrote that I believed that, whatever my other reservations, that was an advantage of incorporation.
Secondly, the fashioning of convention law and its expression in our domestic law should be the combined efforts of the judiciary and Parliament. It is for the judiciary to state where and how our existing laws, procedures or remedies are inadequate in law or incompatible with the convention, but it is then for Parliament to decide, in cases where legislation is involved--either primary or secondary--how the matter should be properly corrected. That is why we broadly support the Government's approach to judicial remedies and the power to take remedial action that is contained in clauses 8 and 10.
Thirdly, we do not want the judiciary creating a separate body of law for the United Kingdom which may go further than would the commission or court at Strasbourg. Although we sometimes grumble at the Strasbourg institutions, and there are judgments that we respectfully criticise and seek to alter, we should recognise that they are usually careful and cautious in their approach to interpreting the convention. In recent
years in particular, they have given a great deal of weight to margin of appreciation, which they and our own judiciary should be careful to do, and we respect the way in which they do so.
To help achieve those three objectives, we shall concentrate later in the debate on, for example, our dislike of the fast-track procedure and on the fact that the Bill lacks any device--I use that word carefully--that would enable the Government or a public authority, if aggrieved by a ruling of our domestic courts, to cause the issue to be taken on to Strasbourg. Such a device would effectively give a right of appeal not only to the citizen, who already has such a right, but to government and public authorities, which currently lack that right. We hope to hear in due course that the Government agree with us on those aims and that approach, and that they will allow us to assist them in amending the Bill in that way.
To revert more narrowly to the amendments, I ask the Government to clarify what they see as the difference, if any, between article 13 being expressly contained in the Bill and it being left out, as it now is. I invite Ministers to listen and watch carefully, because I suspect that we are about to start dancing on the head of a pin.
When the question was asked by Lord Lester in another place, on 18 November, the Lord Chancellor, commencing his dance--if I may put it that way--first replied:
Sir Nicholas Lyell:
My hon. and learned Friend anticipates accurately the points that I am about to expand. The simple answer to his question is no, but let me seek, for the benefit of the Home Secretary and the Minister, to explain why, in the hope that at least here, in the light of a summer's day, we may have some elucidation from the Government.
As I said, when the question was raised in the Lords, the Lord Chancellor gave two seemingly inconsistent answers within about 15 lines of debate. He went on to rebuke, if that is not too harsh a word, Lord Ackner, a former Law Lord, for "nourishing suspicions"--a delightful expression--on the issue. However, he then purported to comfort my noble Friend Lord Kingsland, the shadow Lord Chancellor, by stating:
The point about Pepper v. Hart is that in it, it was ruled that one may examine a Minister's comments. Lord Lester--always astute on such points--has decided for himself that, having heard the current Lord Chancellor expatiating on the meaning of clause 8(1), he could take it that judges, having read the debate in the other place, would arrive at the simple conclusion that it was Parliament's intention that the courts could have regard to Article 13 of the Convention.
For completeness, one notes--as the Lord Chancellor pointed out--that, under clause 8(4),
The Home Secretary might again be able to enlighten us on whether there is any difference between the meaning of the words "taking into account" and "having regard". I think that, by now, I have made good my point that the head of the pin on which we are dancing is not all that large.
I conclude with two simple questions. Does it make any difference whether article 13 is expressly contained in the Bill? If so, what difference does it make, and why?
The Secretary of State for the Home Department (Mr. Jack Straw):
I congratulate the right hon. and learned Member for North-East Bedfordshire(Sir N. Lyell) on a very elegant, well-informed and entertaining speech. However, in the course of this short debate, I hope to show that--on the omission of
Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.'.
"the courts may have regard to Article 13."
Some 10 lines further on in the Official Report, in answer to my noble Friend Lord Campbell of Alloway, the Lord Chancellor said:
"to incorporate expressly Article 13 may lead to the courts fashioning remedies about which we know nothing".--[Official Report, House of Lords, 18 November 1997; Vol. 583, c. 477.]
Mr. Edward Garnier (Harborough):
My right hon. and learned Friend has been discussing the opinions of their lordships. Has he learnt anything from reading the Official Report of the other place that tells us the substance of the reasoning, if there is any reasoning, behind the Government's approach as set out by the Lord Chancellor?
"I believe that the English law is rich in remedies and I cannot conceive of a case in which English law under Clause 8(1) would be unable to provide an effective remedy."--[Official Report, House of Lords, 18 November 1997; Vol. 583, c. 479.]
The House will instantly recall that Lord Lester said that he won Pepper v. Hart, but I was on the other side. Pepper v. Hart was not exactly a case that one won or
lost, but one in which the House of Lords--which was straining at the leash to do so--decided that it would be illuminating to their Lordships, in their judicial capacity, and to the courts generally if they were able to examine the words of a Minister in cases of ambiguity in a Bill, to determine whether they could ascertain how to resolve that ambiguity.
"In determining--
the Bill already provides that
(a) whether to award damages, or
the amount of an award",
"the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under article 41 of the Convention."
The Home Secretary will have instantly realised that, as the Bill seems to say that courts can take those points into account in awarding damages, applying another legal principle--expressio unius est exclusio alterius--presumably they are not entitled to take them into account in other circumstances. However, the Lord Chancellor did not go into that particular detail. Nevertheless, as I said, it seems to suggest that, in other respects, one does not take article 13 into account.
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