Orders of the Day

Human Rights Bill [Lords]

[1st Allotted Day]

Considered in Committee [Progress, 20 May].

[Mr. Michael J. Martin in the Chair]

4.42 pm

Mr. James Clappison (Hertsmere): I beg to move amendment No. 4, in page 2, line 2, leave out 'must' and insert 'may'.

The First Deputy Chairman of Ways and Means (Mr. Michael J. Martin): 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'.

Mr. Clappison: 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"--

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.

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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

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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"

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.