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Scrutiny of Acts and Regulations
Committee
Eleventh Report to Parliament on Subordinate
Legislation
Annual Report
concerning
Statutory Rules Series 1998
Ordered to be Printed
By Authority. Government Printer for the State of Victoria
May 1999
No. 43 Session 1999
... Perhaps I may now express my warm welcome for the
Bill as a whole. However, I must go on to express a certain unhappiness, having been
involved in the field of human rights for some time. It has its delights, not least the
ability of every supporter of human rights to wish to get everything, including the
kitchen sink, into every step that is considered a step forward for the protection of
human rights. This Bill is designed to repatriate to this country those rights which we
currently have to go to Strasbourg to enforce ... When looking at the list of amendments,
I ask that we consider what we are trying to do with this Bill. If it is to make
enforceable in English law known rights under the covenant which are currently in force in
Strasbourg, let us do that. Let us not try to protect for the time being every human right
that anyone can think of.
(Lord Browne-Wilkinson, House of Lords, 18 November 1997,
at 498).
Our critics say the Bill will cede powers to Europe,
will politicise the judiciary and will diminish parliamentary sovereignty. We are not
ceding new powers to Europe. The United Kingdom already accepts that Strasbourg rulings
bind. Next, the Bill is carefully drafted and designed to respect our traditional
understanding of the separation of powers. It does so intellectually convincingly and, if
I may express my high regard for the parliamentary draftsman, elegantly. 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. In the very rare cases where the higher
courts will find it impossible to read and give effect to any statute in a way which is
compatible with convention rights, they will be able to make a declaration of
incompatibility. Then it is for Parliament to decide whether there should be remedial
legislation. Parliament may, not must, and generally will, legislate... But the remedial
action will not retrospectively make unlawful an act which was a lawful act – lawful
since sanctioned by statute. This is the logic of the design of the Bill. It maximises the
protection of human rights without trespassing on parliamentary sovereignty.
(The Lord Chancellor (Lord Irvine of Lairg), House of
Lords, 3 November 1997,
at 1228).
What is the doctrine of the separation of powers in our
country? It is that judges do not interfere with the parliamentary process on the one hand
and Parliament does not interfere with the judicial process on the other. That principle
has stood us in enormously good stead, certainly since the Glorious Revolution more than
300 years ago. To the extent that the judges are not reflecting the jurisprudence of the
convention but stating their own view about what the convention says, they are in breach
of that doctrine. They are initiating new legislation. Of course, it is true that
Parliament does not have to go ahead and pass that legislation. Indeed, what I fear may
flow from a judicial decision of incompatibility is a long and bitter debate in Parliament
about whether the judges were right and even if they were right, whether it is right to
legislate.
(Lord Kingsland, House of Lords, 3 November 1997, at
1237).
One of the many drawbacks of the current arrangements
is that the convention rights are cut off from people in the United Kingdom and viewed as
something alien to us. In bringing rights home, we want everyone in Britain to view the
basic principles set out in the convention as part of their national heritage. We shall
not achieve that by practising an internal system of apartheid, keeping the convention
rights as the exclusive preserve of the courts. That way, people will continue to see
those rights as separate from their daily lives, not as something intrinsic to them. It is
in keeping with that principle that tribunals as well as courts are required by clause 3
to read and give effect to legislation as far as possible in a way that is compatible with
the convention rights.
(Mr Mike O'Brien, Parliamentary Under-Secretary of State
for the Home Department, House of Commons, 24 June 1998, at 1056).
The Bill does not simply incorporate the convention
into our law; it creates an entirely new Bill of Rights. We shall not simply bring the
convention into our law and accept the jurisprudence of the European Court of Human
Rights; rather, we shall effectively give British judges the right to build up a new
volume of jurisprudence. Those are points that I have argued again and again, and they are
the points that worry particular groups. That is why I oppose incorporation of the
convention.
(Mr Edward Leigh, House of Commons, 24 June 1998, at
1073).
Like many of my Hon. friends, I start from the
standpoint that we would not necessarily have sought to incorporate the European
convention into British law. As the Bill does so, however, what should it comprise? It has
always been a matter of balance between the risk that incorporation would lead to
interference with and frustration of the intentions of Parliament, and hence the reduction
of our customary form of parliamentary sovereignty, and, on the other hand, the potential
benefit that it would strengthen the ability of individuals and non-governmental
organisations to take action against arbitrary, unreasonable, procedurally unfair or
disproportionate action by the state or public authorities. The Bill as drafted, which
restricts the rights of action to victims alone, runs the risk of not striking the right
balance, and therefore not exploiting to the full the benefit that may be derived from the
incorporation of convention rights.
...
The Right Hon. Member for Caithness, Sutherland and
Easter Ross said that breaches of fundamental rights might be relatively rare. He may be
right, but I do not think that it works like that. The cases brought will not go to the
heart of the fundamental right asserted in the convention, but will work at the
boundaries. The main issue will be not whether the right to freedom is to be transgressed
fundamentally, but what the boundary of that right is in relation to public authorities.
That is a shifting boundary, which will be subject to a lot of litigation.
(Mr Andrew Lansley, House of Commons, 24 June 1998, at
1078 and 1080).
The amendments seek to provide a right of appeal to the
European Court of Human Rights at Strasbourg for the Government and for public bodies that
are not satisfied with the decision of the final domestic court of appeal in any
particular case. The deeper purpose is to ensure that the human rights regime set up under
the Bill is one in which the human rights law that applies in the United Kingdom is
Strasbourg law – the same body of law that applies to the 30 or so other member
states of the Council of Europe – and not a separate body of human rights law
applicable only to the United Kingdom. In other words, we do not seek – nor do we
believe that it is the Government's intention – that the Bill should be used by our
courts as a substitute written constitution, against which all our legislation should be
tested and potentially struck down, notwithstanding that the European Court of Human
Rights at Strasbourg would have found no such incompatibility.
(Mr Edward Garnier, House of Commons, 24 June 1998, at
1115).
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