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Sir Nicholas Lyell: I do not want to be tedious, but the Home Secretary will recognise that clause 2(1) concerns
- "any . . . judgment, decision, declaration or advisory opinion",
Mr. Straw: Let me try again to answer the point. The convention has been international law for 50 years, and any tribunal will consider the bare text of any original convention by considering the way in which its application has developed--there is, indeed, a requirement to do so--so, in practice, the courts must take account of the large body of convention jurisprudence when considering remedies. Obviously, in doing so, they are bound to take judicial notice of article 13, without specifically being bound by it.
That is my judgment about the way in which the law will work. I wish future Judicial Committees of the House of Lords luck in working through these debates. One sometimes wonders about the wisdom of the Pepper v. Hart judgment in terms of the work that it has given the higher judiciary. It is a fine point, but since we saw that there was no purpose, and indeed that there were some dangers, in including article 13, we thought that it was best omitted.
Mr. Robert Maclennan (Caithness, Sutherland and Easter Ross):
Surely, if the Government had wished no consideration to be given to the jurisprudence that has developed on article 13, it would have been necessary to include a specific derogation from the provisions of clause 2(1). Without that derogation, it seems inevitable that how the courts have developed article 13 rights will be a matter that the court not only may consider, but ought to consider.
Mr. Straw:
With respect, that is the point that I sought to make. The distance between us is small.
Mr. Garnier:
If the Home Secretary agrees with the point just made by the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan), why not
Mr. Straw:
We think that it would create doubt. We believe that we are adequately covering the issue of remedies in clauses 3, 6, 7 and 8. We are specifically providing remedies that are understandable in English and Scots law. In determining whether a particular remedy is to be granted in respect of any action, the courts must interpret convention rights as laid down in clause 2.
If I may labour the point, we do not believe that incorporating article 13 adds anything positive to the Bill that is not already there; that covers the point about the courts having to take judicial notice of article 13 as a basic text without being bound by it. We believe that it could create unnecessary doubt, and that is why it is not sensible to accept the amendment, which I respectfully invite the right hon. and learned Member for North-East Bedfordshire to withdraw.
Mr. Denzil Davies (Llanelli):
I see the logic in the arguments of both my right hon. Friend the Home Secretary and the right hon. and learned Member for North-East Bedfordshire (Sir N. Lyell). Let me refer first to my right hon. Friend's logic by saying that the convention is about rights, but has one article that says that courts should give effective remedies. Courts usually give whatever remedies they can. As far as I know, the county court cannot provide prerogative orders--at least, it did not used to be able to; perhaps it can now and I do not know it. There are certain cases in which injunctions can be granted under statute in the county court, but prerogative orders such as certiorari or mandamus are not normally issued by county courts.
Presumably, if an issue of convention rights appeared in a county court action, an English county court would not be able to grant certiorari or mandamus, although that would be an effective remedy under article 13. I understand why my right hon. Friend says that each court will grant the remedy that that court has the right to grant, but if there is a judicial review, it is unusual for the divisional court or, in civil cases, the High Court, to award damages. It can happen, but--I have not looked at the white book over the past 24 hours--it is very rare. Yet much of the work for lawyers that the incorporation of the convention will create--if it does--will be in judicial review. The High Court might declare in a judicial review case that an act contrary to the treaty was unlawful. That might not be an effective remedy. Damages might be more effective. Today, it is generally not possible to obtain damages. It may be that the declaration of unlawfulness is sufficient.
I am as baffled as--I do not say this in a derogatory sense--the right hon. and learned Member for North-East Bedfordshire was. I have read the House of Lords debates. I, too, am baffled as to why article 13 has been left out, if it does not make any difference.
My right hon. Friend the Home Secretary muttered something about the public purse and lots of money. He said that it might cost a lot. I understand that argument, but I cannot follow its logic because, according to the notes on clauses, people cannot receive more than £15,000 from the courts in Strasbourg, if anything at all. So damages are pretty restricted. I am not sure why my
right hon. Friend is worried on that front, unless damages over and above the normal remedies that would be given by a court, such as prerogative orders in the case of judicial review, could be sought as an effective remedy. In cases of trespass of land, one can obtain a judgment and penny damages. That might not be an effective remedy in some cases.
Does the provision mean that I cannot normally obtain more than a penny, but that if article 13 is incorporated, I can obtain at least up to £15,000, if that is thought to be an effective remedy? I am not sure whether the word "effective" means anything at all. I have not studied the jurisprudence of the convention or the cases. Perhaps it does.
We are told that we are not incorporating the convention into English law, but we are. If we are incorporating the convention into English law, I can well understand that if an action goes through the normal English, Welsh or Scottish courts, it is tidier to say that the court can grant only the remedy that that court can give in the generality of cases. It makes the position rather complicated perhaps, and fussy--I do not know--to enable, say, a county court to give a remedy in a case under the convention when the court cannot give the remedy normally.
Perhaps all this is a consequence of the Government's fiction. It is a fiction. We shall return to this subject later, but it is a fiction. The Government say that they are not affecting the sovereignty of Parliament; that they are not incorporating the convention; that they are not doing anything at all. It is a clever fiction. Lawyers understand fictions. We approve of fictions. We think that fictions are great things because lawyers have made a lot of money over the centuries from fictions. This is a fiction and a clever one.
I can see the logic of what my right hon. Friend the Home Secretary is saying within the terms of the fiction--that parliamentary sovereignty is not affected, we are not really incorporating it and that it will all be done under English law. If we look at the interpretation provisions, we have to interpret according to the statute unless it is clearly contrary to the terms of the convention. It is very well done, and we all understand that.
All that I am asking my right hon. Friend in this rambling, short intervention is what he means when he says that he is worried about the public purse. Is he worried that all those lawyers--all those fat cats who sit every day in the judicial review courts and make a lot of money--will obtain damages against local authorities, damages for misfeasance, damages against the Home Office and other Government Departments, over and above any mere declaration that might satisfy pride but does not help the pocket of the litigant?
I do not know whether my right hon. Friend intends to speak again. If he tells me that I am talking nonsense, I shall not be happy, but I shall accept it, so perhaps he could deal with the point that I have made.
Mr. Dominic Grieve (Beaconsfield):
I listened carefully and with great interest to the comments of the right hon. Member for Llanelli (Mr. Davies). Although I approach the matter from a slightly different angle, I agree with him. I find a lack of logic behind the decision to
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