Mr Chairman, Distinguished Members of the Legal Affairs and Human Rights Committee, Ladies and Gentleman, there are at least two very good reasons why I am delighted to be in Strasbourg today.
First and foremost, it gives me the opportunity to talk to you and to see at first hand something of the operation of the Court of Human Rights.
Second, my visit to Strasbourg to-day coincides with the opening for signature of the Criminal Law Convention On Corruption. After this session, I will have the honour of signing this Convention on behalf of the United Kingdom Government. The Convention is an ambitious document, which provides for criminalisation of a broad range of corruption offences. Tackling corruption is not just a domestic issue, and I greatly welcome the renewed co-operation across boundaries which the Convention will bring.
We are approaching the 50th Anniversary of the signing of the Council of Europe Statute in London. The United Kingdom looks forward to welcoming representatives of the Council of Europe states to London to mark this important anniversary on 5 May. Her Majesty The Queen will be attending a reception in St James Palace, where the Statute was signed, and the Lord Chancellor will be giving a key speech in the Royal Gallery of the Palace of Westminster. It is right that from time to time we should remind ourselves of our history and celebrate the real achievements of the last fifty years.
I am delighted to confirm today that the United Kingdom is in the process of ratifying the Sixth Protocol to the European Convention on Human Rights. The death penalty has not been used in the United Kingdom for many years and until last summer remained on our statute book for only a handful of offences. Parliament has now determined that the death penalty should be abolished in both peace and wartime. Ratification of the Sixth Protocol signals our determination that capital punishment should not be re-introduced.
This is an important and very welcome development, which has come about largely due to the hard work and tenacity of members of the UK Parliamentary Delegation, and in particular of Kevin McNamara who had a leading role in introducing the necessary changes to our legislation.
I should also acknowledge the valuable work that Lord Kirkhill has carried out as Chairman of this Committee. In particular, I know that he played a key role in the appointment of new judges to the Court, and I am sure that we all look forward with interest to how the new Court will settle into its role.
With your permission Mr Chairman, I should also like to take this opportunity to pay tribute to the work of our late colleague Geoffrey Finsberg. He worked in the Council of Europe for more than twelve years and held office in most, if not all, the posts your Assembly can offer. He was involved in many ways - and I understand that he was, for example, a driving force on technical issues such as electronic voting. I am sure that his contribution is sadly missed
Many of you will know that since the Government of which I am a member came to office, the UK has witnessed some important developments concerning human rights.
You will all be aware that events in Northern Ireland have been moving at a very fast pace in the last few months. Rights, safeguards and equality of opportunity formed a central theme in the Agreement signed in Belfast on Good Friday 1998.
The Agreement recognised the legitimate aspirations of both traditions, to ensure that "rigorous impartiality on behalf of all the people in the diversity of their identities and traditions and shall be founded on the principles of full respect for, and equality of, civil, political, social and cultural rights, of freedom from discrimination for all citizens, and of parity of esteem and of just and equal treatment for the identity, ethos, and aspirations of both communities."
I am sure that you all share our hopes for a better future for the people of Northern Ireland.
One of the most important statutes enacted by the United Kingdom Parliament since the 1997 general election is the Human Rights Act 1998. This statute fulfils the commitment in our election manifesto to incorporate the European Convention on Human Rights into domestic law.
Of course, the United Kingdom played a major part in drafting the Convention and was the first country to ratify it, in March 1951. Since 1966 it has been possible for an individual person, as well as another State, to bring a case against the United Kingdom in Strasbourg.
Successive administrations in the United Kingdom have maintained these arrangements, and the United Kingdom has a good record in complying with the judgments of the European Court of Human Rights.
So the Convention has been binding on the United Kingdom under international law for many years. But it is not binding in domestic law. People do not have access to their Convention rights in the courts of the United Kingdom. In order to enforce those rights they must bring a case against the United Kingdom in Strasbourg and they may do so only when they have exhausted all domestic remedies.
Since 1993 it has been the policy of the Labour Party that people should have access to their Convention rights in our domestic courts. That policy was implemented by the Human Rights Act which completed its passage through Parliament in November 1998.
As far as I know, ours is the most recent example of a country legislating to provide statutory protection for human rights in its domestic legal system. We did of course consider the ways in which other countries had done this, but the particular scheme of incorporation we have chosen is designed to reflect our own constitutional traditions.
The Act operates in two main ways. First, it requires all primary and subordinate legislation to be interpreted as far as possible in a way which is compatible with the Convention rights. This will apply to existing and future legislation. It is a radical new rule of construction. At present, courts can apply the Convention in interpretation of statutes only if the meaning is ambiguous. The new rule may well result in statutory provisions being given a different meaning in future from the meaning they currently bear.
Subordinate legislation which is held to be incompatible will generally be quashed or not enforced. Incompatible primary legislation will continue to be enforced, but the higher courts will be able to make a formal declaration of incompatibility. It will then be for Parliament to amend the legislation to bring it into line with the Convention rights. Although fresh primary legislation will be the normal course, the Act also provides a fast track procedure for Parliament to amend incompatible legislation by order if there are compelling reasons for doing so.
The Convention rights will take priority over our common law. Precedents will be disregarded if they are incompatible with the Convention rights.
Second, it will be unlawful for a public authority to act in a way which is incompatible with the Convention rights - unless it is acting to give effect to incompatible primary legislation. The expression "public authority" is deliberately left at large. It will certainly include all central and local government, and courts and tribunals. It will also cover a non-government body to the extent that it acts as a "public authority".
A person who believes that his or her Convention rights have been breached by a public authority will be able to seek redress in the courts. He or she will be able to sue the authority under the Act, or rely on his or her Convention rights in any other proceedings involving the authority.
Only a person who claims that his or her Convention rights have been breached will be able to bring proceedings under the Act. This is designed to reflect the position in Strasbourg, where cases may be brought only by those claiming to be a victim of a violation of the Convention rights. Other bodies such as trade unions and civil rights organisations which are not victims will of course be able to advise and assist those bringing proceedings.
A court or tribunal finding that a public authority has breached a person's Convention rights may award whatever remedy is open to it and seems appropriate. This may include damages. In deciding whether to award damages and if so, how much, the Act requires courts to take into account the principles applied by the European Court of Human Rights.
More generally, the Act requires that we import not only the Convention rights themselves but the associated jurisprudence also. The new rule is that in determining any question which has arisen in connection with the Convention rights, the courts must take into account any relevant judgments and decisions of the Convention institutions.
To underpin the main provisions, the Act requires every Minister in charge of a Bill to make a written statement before Second Reading in either House of Parliament about its compatibility with the Convention rights. The Minister will have to say either that he or she believes the provisions of the Bill are compatible with the Convention rights, or that although he or she cannot make such a statement the government nevertheless wishes Parliament to proceed to consider the Bill. This is designed to enhance the scrutiny of the human rights aspects of legislation within Government.
We have already brought this provision of the new Act into force. All Government Bills introduced this session have borne a statement of compatibility with the Convention rights.
The Human Rights Act contains powerful provisions with powerful consequences. Consistent with our tradition of Parliamentary sovereignty, the courts will not be able to set aside Acts of Parliament. But subject only to that constraint, this is the strongest scheme of incorporation possible. The provisions will weave the Convention rights deep into the fabric of decision making in law and government. They should also help to create a human rights culture in our society, in which the rights and responsibilities of individuals are properly balanced.
We expect to bring the remaining provisions of the Act into force in the year 2000. This is designed to provide enough time for a comprehensive programme of training and preparation. For example, all courts and tribunals will need training to enable them to deal confidently with the Convention points that come before them. And public authorities will need to review their legislation and practices for compatibility with the Convention rights.
What does the Act imply for the relationship between the United Kingdom and the Convention institutions? I want to make three preliminary points and then say a word or two about the doctrine of the margin of appreciation.
First, people will be able to seek a remedy in the domestic courts for a breach of their Convention rights. They will not be required to bring a case in Strasbourg - although they will be able to do so if they are not satisfied with the outcome of their case in the United Kingdom. This may result in fewer cases going to Strasbourg. On the other hand, the passage of the Act should increase public awareness of the Convention rights. So there may be more litigation overall - and more cases going on to Strasbourg after the domestic courts have given their judgment.
Second, given that the Human Rights Act provides a system of remedies for a breach of the Convention rights, the admissibility provisions of the Convention may require people to seek those remedies in the domestic courts before going to Strasbourg. People may for example need to bring proceedings against a public authority in our courts. Or they may need to show that they have sought to rely on their Convention rights in the course of criminal proceedings brought against them.
Third, there will be British jurisprudence on the Convention rights for the Convention institutions to consider. In examining a case brought against the United Kingdom, they will be able to see how British judges have approached the interpretation of the Convention rights. I feel sure that the contribution to be made by our judges will be of real value in developing the case law of the Convention.
I turn now to the margin of appreciation. The doctrine reflects, of course, the long-standing view of the European Court of Human Rights that national authorities (including national courts) may be better placed to make an assessment of local conditions, while remaining subject to its supra-national supervision. The margin of appreciation is, in short, "…the amount of latitude left to national authorities once the appropriate level of review has been decided upon by the Court." Operating as it does at the international level, the doctrine is, strictly speaking, not directly transposable in terms into the domestic sphere.
But, because the domestic courts will be required under the Human Rights Act to take into account the Strasbourg case law, in which the margin of appreciation will necessarily have been applied by the Convention institutions, the doctrine is likely to have at least an indirect impact through the domestic courts' interpretation and application of the Strasbourg case law.
Moreover, the United Kingdom courts have traditionally recognised, in certain situations and contexts, a not dissimilar doctrine of a discretionary area of judgment for the legislature and the executive. And so it is, particularly in relation to decisions on political matters and on sensitive issues of social and economic policy, the domestic courts have tended to "defer to" the executive or legislature. It is likely that the domestic courts will continue to allow some degree of latitude to public authorities in such areas following the coming into force of the Act.
The level of judicial scrutiny or deference, and the consequential extent of any margin of appreciation, will vary from case to case. The extent of the margin of appreciation will depend on the context, and on the subject-matter, facts and circumstances of each case. It may be that a lesser degree of margin of appreciation will be allowed where there is substantial interference with fundamental human rights than where a pure policy matter is in issue
As I have explained, under the Human Rights Act the domestic courts will have to take into account the Strasbourg case law - including the application of the margin of appreciation - in determining Convention points arising under the Human Rights Act. And, as public authorities themselves, they will also have to act in a way which is compatible with the Convention rights. What all this means is that the European Court of Human Rights can have a much better assurance than it does now that the UK domestic courts have already given full consideration to ECHR points before a case goes to them. And that should help the operation of the margin of appreciation.
There are some interesting times ahead - for the United Kingdom domestically, and for our relationship with the Court of Human Rights. My colleagues and I look forward to continuing to work with our Council of Europe partners and I am grateful to have had the chance to share these developments with you today.
With your permission Mr Chairman, I would be happy to try to answer any questions which the Legal Affairs Committee may have, and to hear your views, about these issues.