Professor Sir William Wade QC

When Lord Justice Henry suggested human rights as the subject of his lecture I though that he could not have given me a subject which was more topical and apposite. Since studying the Human Rights Bill and the Parliamentary debates, however, I doubt if he could have given me a subject which was more difficult. The philosopher Wittgenstein said: "Of what cannot be know, thereof one may not speak." There is much in the Human Rights Bill which cannot as yet be known, nevertheless I am obliged to speak. Consequently this lecture will be more speculative and more argumentative than I would like - and, I suspect, than you would like. The Human Rights Bills in mid-passage, having passed the House of Lords and being now before the House of Commons. Some important questions, both political and technical, still seem to be open. But before I am embroiled in them I must fill in some background.

Background

The European Convention for the Protection of Human Rights and Fundamental Freedoms was adopted in 1950 with Britain as one of the founder members. One of the curiosities of the British attitude at home was the "passionate intensity" with which it was originally opposed by the Lord Chancellor, Lord Jowett. He denounced it as "some half-baked scheme to be administered by some unknown court" and as "so vague and woolly that it may mean almost anything;" and he poured scorn on the draftsman, apparently unaware that he was an eminent official in the Home Office. Lord Lester, among his many great services to the cause of human rights, has given a fascinating account of the shaky start which we made with the Convention in 1950, despite the fact that we were the first country to accede to it Endnote 1 . But there was one comment in Lord Chancellor Jowett's cabinet paper which was more percipient than his anathemas. "We shall have to bring in legislation," he said, "applying the conditions of the Convention to our domestic law." And so at last it proves. It has taken 48 years for the legislation to come before Parliament with any chance of success. The House of Lords had three times passed Bills brought in by my cousin Lord Wade, which had no such change. But now, with the government's Bill, the signals have turned to green and we are "bringing human rights home," as the White Paper puts it.

To many people, lawyers especially, it has seemed extraordinary that it has taken nearly half a century for this necessary measure to come forward. Citizens claiming the benefit of the Convention have had to undertake slow and expensive proceedings in Strasbourg where their rights are determined by judges coming from many countries, large and small, who, whatever their merits, do not command the same confidence in British eyes as do the judges of our courts. British violations, and there have been many, are publicly exhibited on the European stage, when a decision by our own courts would have given satisfaction without international notoriety, as well as much more speedily and cheaply. Almost all the other countries in the Convention had incorporated it into their law. Unconvincing reasons for not following suit were put forward by successive governments, arguing that the judges would be drawn into politicks, would come into conflict with Parliament and would acquire too much power. But why we should distrust our own judges when so many of the other countries willingly trusted theirs was a mystery; and as for politics, as Lord Hailsham said in the House of Lords 20 years ago, "They [the ministers] are under the curious illusion that the judges are not already in politics," and he instanced some of their exploits in judicial review. ( Endnote 2 ) Since then the judges' exploits have become still more striking, and the prospect of their having to set aside Acts of Parliament, which so horrified the critics when Lord Hailsham was in office, has become a reality under the law of the European Union. The conflict with Parliament has caused no constitutional crisis and there has been no sign so far that it has politicised - or further politicised - the judiciary. The judges have come to play a more prominent part in public life without out of the disastrous consequences which used to be predicted.

One sign of this more prominent role was that a powerful group of the heads of the judiciary, following the lead famously given by Lord Scarman in his Hamlyn Lectures of 1974, publicly advocated incorporation of the European Convention. This was before the government itself had declared its hand. Judicial impatience with the failure to incorporate was also, one may surmise, what prompted some eminent judges to suggest that the common law, that is to say the judges themselves, might spontaneously find the resources for introducing and protecting at least some fundamental rights of the kind contained in the Convention. It has long been possible to say that our law recognised one fundamental right which successfully resisted Parliament's attempts to abolish it, namely the right of access to the courts. Lord Woolf has said that the same should be true of judicial review generally. ( Endnote 3 ) Lord Browne-Wilkinson suggested two lines of argument, one that the Convention rights will infiltrate into our law since they are recognised and applied by the European Court in Luxembourg, and the rulings of the court have overriding effect; and the other that powers conferred in purely general terms (such as a power to make rules for "the regulation and management of prisons") should be held to be intended not to violate treaty obligations. ( Endnote 4 ) There have been plenty of judicial dicta, from the House of Lords downwards, tending in the same direction, notably from Lord Goff and Lord Bridge. ( Endnote 5 ) Sir John Laws makes it part of his philosophy of the state to claim fundamental rights as an imperative of higher-order law, which should be binding on Parliament. ( Endnote 6 ) Before he became Lord Chancellor Lord Irvine opposed these ambitious theories, saying that they smacked of "judicial supremacism" prompted by "extra-judicial romanticism." ( Endnote 7 ) He declared his allegiance to the established constitutional order and to reform by Parliamentary legislation. And that is what we are now to have under the Human Rights Bill.

A general idea of the rights protected by the Convention may be gleaned from a brief catalogue of the rights, which Article 1 obliges the member states to secure to every one within their jurisdiction. Most of the rights have qualifications attached to them, the only exceptions being the prohibition of torture and inhuman or degrading punishment (Article 3), the prohibition of slavery or servitude (Article 3), the prohibition of retrospective criminal liability (Article 7) and the right to marry according to national laws (Article 12). The right to life (Article 2) has to be qualified so as to allow capital punishment and the prohibition of forced labour (Article 3) has to allow for military service and other obligations. The right to personal liberty and security (Article 5), which includes the right to challenge the lawfulness of detention, has numerous exceptions for lawful restraints. The right to a fair and public trial in both civil and criminal matters (Article 6), together with a list of consequential rights, allows for the exclusion of the press and the public on justifiable grounds. Articles 8 to 11 form a group, since they have one special qualification. They proved respectively for respect for private and family life, for freedom of thought, conscience and religion, for freedom of expression and for freedom of assembly and association. The special qualification which is common to all four of them is that any legal restriction upon them may only be such as is "necessary in a democratic society" for the protection of public order, health or morals or for the protection of the rights of others (I am ignoring a few differences of wording). Nothing, perhaps, in the Convention better illustrates the new world of interpretation that will confront the judicial under these clauses. How are they to establish objective standards of democratic necessity? Britain has often been in trouble in Strasbourg for laws which failed to pass the test of democratic necessity, as in the Thalidomide ( Endnote 8 ) and Spycatcher ( Endnote 9 ) cases. Only last month there was another example, when the court in Strasbourg held that the statutory limit of £5 on publications in favour of a particular candidate in the period just before an election was disproportionate and so unnecessary in a democratic society. ( Endnote 10 ) It cannot be very long now before you, the judges, will have to decide the same question.

I ought also to mention the right of property in the First Protocol, which is qualified to allow for compulsory purchase - but only in "the public interest." This was the provision under which the Duke of Westminster failed in his challenge to the uncompensated expropriation element in the Leasehold Reform Act 1967, which the Strasbourg court allowed to be "in the public interest." ( Endnote 11 ) On the other hand the Convention has o provision against unreasonable searches and seizures, except through the right of privacy under Article 8, and nothing about the rights of employees, except for the right to join, or not to join, trade unions under Article 11 (freedom of association). It does contain a full anti-discrimination clause, but that applies only to the rights secured by the Convention.

The Human Rights Bill

It has to be remembered that the Human Rights Act, as it will become, will necessarily operate under the shadow of the European Court of Human Rights in Strasbourg. A litigant whose claim might not be covered by the terms of the Act will be able to take his case direct to Strasbourg in the same way as at present. Even in a case covered by the Act and decided by a U.K. court, a dissatisfied claimant will be able to challenge the decision in Strasbourg if the U.K. court's decision can be shown to infringe his Convention rights. Nothing in the Bill exempts, or can exempt, the U.K. from its Convention obligations. The White Paper (Cm 3782) does not mention the residual Strasbourg jurisdiction, but it will always be there. In fact, to judge from the statistics published by the Commission in Strasbourg, countries which long ago incorporated the Convention into their law still send about as many cases to the Strasbourg court as does Britain. Another matter not mentioned in the White Paper is that the government is pledged to safeguard these rights. Under Article 1 "The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in section 1 of this Convention" (section 1 contains the whole list).

The problems being when we seek to ascertain the precise scope of the Bill. Is the incorporation complete or only partial? On its face the whole thrust of the Bill is against public authorities. In this it resembles the Canadian Charter of Rights and the New Zealand Bill of Rights. If we bear in mind that the original object of the Convention was to prevent the re-emergence of governments like that of Nazi Germany, it is quite natural that the Bill should be aimed at governmental authorities only. But public authorities are not the only ones who may offend against Convention rights. The right to respect for private and family life, the right to freedom of expression, the right to freedom of association (including trade union membership) and the prohibition of discrimination are all capable of being violated by non- governmental bodies. Will such misdeeds by protected in the same way as the misdeeds of public authorities? In the language now familiar from European Union law, is the operation of the Bill to be horizontal as well as vertical?

In the debates in the House of Lords the answer appeared to be in the negative. The Lord Chancellor, introducing the Bill, explained its purpose clearly in relation to clause 6, the central provision for incorporation which makes it unlawful for a public authority to act in a way which is incompatible with Convention rights. He said that a prevision of this kind should apply only to public authorities, however defined, and not to private individuals. ( Endnote 12 ) That reflected the arrangements for taking cases to the Convention institutions in Strasbourg. Someone who takes a case to Strasbourg is proceeding against the United Kingdom government, rather than against a private individual. All though the debates that followed speaker after speaker spoke in terms of public authorities, and in his final speech on third reading the Lord Chancellor said that "we have not provided for the Convention rights to be directly justifiable in actions between private individuals. We have sought to protect the human rights of individuals against the abuse of power by the state, broadly defined, rather than to protect them against each other." ( Endnote 13 )

At one/point of the committee stage, however, the government resisted an amendment designed to exclude cases where neither party was a public authority. The context was the only political issue which the Bill has so far evoked. Lord Wakeham, as chairman of the Press Complaints Commission, pointed out that the definition of public authorities in clause 6(3) included the courts, who were therefore required by clause 6(1) to act in accordance with the Convention, and that this would compel them to enforce the right of privacy under Article 8 of the Convention. ( Endnote 14 ) This right of privacy, strong in Strasbourg but weak in Britain, was feared by the media as likely to conflict to their disadvantage with the less formal self-regulation administered by the Press Complaints Commission. The Bill would introduce a "back-door privacy law" and put "an end to investigative journalism."

In reply the Lord Chancellor accepted Lord Wakeham's reading of the Bill, while rejecting his fears about freedom of the press. For the moment I will postpone the controversy over the latter and concentrate on the position of non-public authorities. The Lord Chancellor said that it was "right as a matter of principle for the courts to have the duty of acting compatibly with the Convention, not only in cases involving other public authorities but also in developing the common law in deciding cases between individuals. Why should they not?" In preparing the Bill the government had taken the view that it was the other course, that of excluding convention considerations altogether from cases between individuals, which would have to be justified. The government did not think that that would be justifiable; nor, indeed, did they think it would be practicable. ( Endnote 15 )

I have quoted verbatim, with Pepper v. Hart ( Endnote 16 ) not far from my mind, because of the significance of this passage in ascertaining the effect of the vital clause 6. That clause provides that a court or tribunal is a public authority and that "It is unlawful for a public authority to act in a way which is incompatible with one or more of the Convention rights." In other words, a court cannot lawfully give judgement in any case in which Convention rights are in issue except in accordance with those rights as set out in Schedule 1 of the Bill. In other words again, the court must recognise and apply the Convention rights, and it must also, under clause 2, follow the case-law and jurisprudence of the Strasbourg institutions, which extends to the award of compensation and costs. There is nothing to confine those provisions to cases brought against public authorities. I see no escape from the conclusion that clause 5 incorporates the scheduled human rights as equally applicable in all proceedings, in the same sweeping way as European Union law is incorporated by section 2 of the European Communities Act 1972.

Suppose, for example, that a paparazzo, with his telephoto lens, photographs an ordinary householder in his home in activities which may be embarrassing, or perhaps suspicious, and then publishes the pictures with impertinent comments. Let us suppose, also, as may well be the case, that this offends against the law of privacy in Strasbourg but is not actionable in Britain. The householder then brings proceedings against the photographer, and perhaps the newspaper behind him, for infringement of his human right of privacy. No public authority is involved. Yet the only lawful judgement that the court can give is one which is compatible with the Strasbourg law, recognising and enforcing the Convention right of privacy. Clause 2 of the Bill, which is not limited to public authorities, requires the court to take into account the whole of Strasbourg case-law and jurisprudence, which provides for compensation and costs. No element of reparation seems to be lacking.

It would, indeed, be a poor sort of "incorporation" which exempted private individuals and bodies from respecting the fundamental rights of their fellow-citizens and drove them back to Strasbourg with all its cost in time and money - the very evil which "incorporation" is supposed to remedy. Yet all through the debates in the House of Lords, with their preoccupation with public authorities, the evident effect of clause 6 was observed only by Lord Wakeham, who pointed out the dangers, as he saw them, of a right of privacy becoming enforceable against defendants who were not public authorities, such as newspapers and my hypothetical paparazzo.

Yet it is obvious that this simple, or simplistic, interpretation of clause 6 is inconsistent with the whole design and structure of the Bill. If the clause had been intended to bear its apparent meaning, there would be no need for any definition of public authorities, or for any special provisions about the, since all parties, public and private alike, would be equally affected. There would have been no need for all the discussion about which authorities were public and which were not, or for restricting the remedies provided in clauses 7 and 8 to proceedings against public authorities only. Nor would it be necessary to dichotomise the functions of authorities into those which were public and those which were private. The Lord Chancellor gave two examples of this dichotomy: doctors with both NHS patients and private patients would be public authorities in respect to the former but not of the latter; and Railtrack, which would have public functions in relation to railway safety but private functions as a property developer. ( Endnote 17 )

In the time of the Public Authorities Protection Act 1893, before its repeal in 1954, the courts do not seem to have found much difficulty in applying the statutory definition of them. It was the injustice of the very short period of limitation, rather than any problems of definition, which caused the repeal of the Act. Now, however, it is evidently going to be necessary not only to define public authorities but to distinguish between their public and private functions. Furthermore, there are now several competing tests in the field: there is the vague "public element" test which sets the boundary for judicial review, and there is the equally vague test in EU law which limits the "vertical effect" of directives to governmental or quasi-governmental bodies. ( Endnote 18 ) Much the best scenario will be if there is no need for definition at all and the endless difficulties of case by case elucidation are eliminated.

Let us return to the Lord Chancellor's example of a doctor with both NHS and private patients. If such a doctor should publish intimate details about the illnesses and private lives of two of his patients, one NHS and one private, will it really be tolerable that the private patient is told to make the long, slow and expensive journey to Strasbourg while the NHS patient gets efficient protection from the High Court? Just as in my earlier example of the paparazzo, I think that the court would avoid this absurd result by deciding, as clause 6 requires, in compatibility with Convention rights and providing the remedies which would be available in Strasbourg. Although the Bill contains nothing to give effect to Article 13 of the Convention, by which everyone whose Convention rights are violated "shall have an effective remedy before a national authority", a provision which is conspicuous by its absence in the rights scheduled to the Bill, the court should have plenty of power in its elbow under clauses 6 and 2.

Some evidence that this point is now appreciated by the government is to be seen in the concessions to the press announced by the Home Secretary in the House of Commons on 16 February, when the Bill came up for second reading. ( Endnote 19 ) I will give details in a minute, but for this moment the point of interest is that there is to be an amendment to the Bill giving certain defences in cases involving journalistic, literary or artistic material. If one thing is certain in this cloud of uncertainties, it is that newspapers are not public authorities. The government must therefore have been persuaded that not only public authorities but also private parties will have liability under the Bill - the point made by Lord Wakeham from the beginning.

Are we then to conclude that the Bill was drafted in terms of public authorities only, but has let in private liability by the back door? And may we not ask another question? Why must there be all this doubt? Why may we not have something clear?

Press Freedom Versus Personal Privacy

What then of the supposedly dire consequences for the freedom of the press and Lord Wakeham's prediction of "an end to investigative journalism"? The Lord Chancellor replied to him in the second reading debate: ( Endnote 20 )

"I understand your concerns, but let me assure you that press freedom will be in safe hands with our British judges and with the judges of the European Court. I add this, you know that, regardless of incorporation, the judges are very likely to develop a common law right of privacy themselves. What I say is that any law of privacy will be a better law after incorporation, because the judges will have to balance Article 10 [free speech] with Article 8 [privacy], giving Article 10 its due high value."

And in Committee he also said: ( Endnote 21 )

"as I have often said, the judges are pen-poised regardless of the incorporation of the convention to develop a right to privacy to be protected by the common law. This is not me say so, they have said so. It must be emphasised that the judges are free to develop the common law in their own independent judicial sphere. What I say positively is that it will be a better law if the judges develop it after incorporation because they will have regard to articles 8 and 10, giving Article 10 its due high value...."

And he added that: ( Endnote 22 )

"the right to privacy is a basic human right. That right can be infringed by a neighbour, an intrusive commercial agency, private investigators, the police and all manner of other people." The little man needs protection against these bodies."

In the debates the Lord Chancellor reiterated his belief that effective self-regulation was the way forward for the press, and that the courts would look to the Press Complaints Commission "as the pre-eminently appropriate public authority to deliver effective self- regulation fairly balancing Article 8 and 10." ( Endnote 23 ) In other words, the judges would endeavour to leave the filed clear for the Commission. It is not easy to see just how this might work, since if a complaint is taken to court the court will have no option but to adjudicate.

No doubt it is true that the "little man" will prefer to complain to the PCC and so save the expense of going to law. But what about the bigger man, perhaps with the bigger reputation, who may wish to go to the court for the sake of its more powerful remedies? The PCC can neither issue injunctions nor award compensation. If a newspaper should commit an outrageous invasion of privacy, would the European Court accept a complaint to the PCC as the "effective remedy before a national authority", as required by Article 13 of the Convention, an obligation which has no place in the Bill" If the victim went to the court in England and asserted his Article 8 right to "respect for his private and family life" he could be awarded damages for the outrage and an injunction against its repetition. The court's armament is so manifestly superior to the PCC's in respect of giving satisfaction to the victim that it is hard to see how he can justifiably be denied legal remedies. The answer may be that the PCC can bring such pressure to bear on the offending newspaper that it can secure the payment of compensation and prevent repetition of the offence as effectively as could the court. But this as yet seems to be far from the case. Lord Lester said in the debates that the PCC's enforcement and remedial powers needed to be enhanced by the media in accordance with a new and strengthened code of practice. A "beefed-up PCC" is evidently what is needed. ( Endnote 24 ) However much the court allows discretion to the PCC in the balancing act of reconciling press freedom with personal privacy, there can be no substitute for effective remedies. The press cannot avoid the fact that incorporation of the Convention inevitably includes the right of privacy and that they will have to live with it - just as they do now with the recourse to Strasbourg.

The government's new concessions, announced by the Home Secretary in the House of Commons on 16 February, are apparently claimed to have averted the threat of a backdoor privacy law. ( Endnote 25 ) It is proposed that in cases involving journalistic, literary or artistic material the court must take account of the public interest, including the question whether the defendant has acted fairly and reasonably and has abided by the PCC's code of practice. That code, incidentally, contains the right of privacy in exactly the same words as the Convention. Then it is to be proved that in privacy cases under Article 8 the court must have particular regard to the countervailing freedom of expression under Article 10. Finally, there are to be no ex parte injunctions which could cause late-night raids on newspapers: the newspaper must be represented. It is not clear, however, that these amendments will amount to very much. The judges are very well aware of the importance of free speech and of Article 10 and of the public interest in upholding them. Perhaps there will be some effect by giving the system a bias in favour of press freedom, but this is hardly the same as eliminating the "backdoor privacy law" of which they are so fearful.

Effects on Primary Legislation

The Bill proposes a unique solution to the problem of conflict with legislation. It should not be supposed that conflicts between the Convention rights and Acts of Parliament are unusual events. The railwaymen dismissed for refusal to join a closed-shop union, ( Endnote 26 ) the air force officer convicted by court martial, ( Endnote 27 ) the homosexuals in Northern Ireland acting in private and with consent, ( Endnote 28 ) and (as I have already related) the pamphleteer allowed electoral expenses of only £5, ( Endnote 29 ) all won their cases in Strasbourg in defiance of express provisions of Acts of Parliament. There are bound to be more such cases.

The Human Rights Bill follows none of the numerous models which might have served as guides. The most stringent of these models are the bills of rights, generally similar to those of the European Convention, which are incorporated in the constitutions of many British Commonwealth countries. These are entrenched with full constitutional protection, they prevail over all legislation, past or future, and they can be changed only by constitutional amendment. Next in stringency comes our own European Communities Act 1972, which gives overriding effect to directly applicable European Union law, making it paramount over all the legislation of Parliament, irrespective of date. Next after that comes the Canadian Charter of Rights and Freedoms embodied in the Constitution Act 1982, which likewise gives constitutional protection but which allows the federal or a provincial legislature to exempt any particular enactment by a "notwithstanding" clause, so that an enactment which is held void for conflict with the Charter may be re-enacted "notwithstanding the Charter", and so prevail. Least stringent of all are bills of rights which have no effect on legislation, but which merely allow the courts to give effect to them in case of doubt or ambiguity. Such are the earlier Canadian Bill of Rights of 1960 and the New Zealand Bill of Rights of 1990. These last specimens rely upon judicial powers of interpretation only. An intermediate possibility, as the White Paper mentions, is to make no specific provision about effect, so that inconsistent past legislation is automatically repealed but future legislation is not. This was the solution favoured by the Hong Kong Bill of Rights of 1991 and, if I understood it correctly, by Lord Lester's Bill of a year ago.

If without excessive presumption I may give my own preference, I would have voted for the Canadian model. Human rights are fundamental, and fundamental rights ought to be as secure as the law can make them. I do not see why we should suppose that our own judges should not do what is routinely done by the judges of many Commonwealth countries, and often, where the right of appeal still exists, by our own judges in the Privy Council. But the Canadian system of allowing opting out by a "notwithstanding" clause of irreconcilable conflicts is to my mind a good one. Of course, also, there is the analogy with European Union law, which itself acknowledges fundamental rights similar to those of the European Convention, as Lord Browne-Wilkinson has pointed out. ( Endnote 30 ) In cases under EU law, therefore, the judges may have to disapply Acts of Parliament as they did in Factortame, ( Endnote 31 ) while in purely domestic cases, as noted below, they will have no such powers. This makes a very stark contrast between cases which ought, in principle, to be judged similarly.

Before coming to the novel procedure proposed by the Bill, we should notice the provision about the interpretation in clause 3. This enacts that legislation, both primary and subordinate and whenever enacted, must be "read and given effect" in a way which is compatible with the Convention rights "so far as it is possible to do so." It has a close similarity to the central provision of the New Zealand Bill of Rights Act 1990, which enacts that "whenever an enactment can be given a meaning which is consistent with" the specified rights and freedoms, "that meaning shall be preferred to any other meaning." In both case the judges are given a new task, to interpret uncertain or ambiguous provisions not according to what they think is the true meaning, but according to the meaning which best accords with the Convention rights. Lord Cooke of Thorndon, with his unrivalled knowledge of the New Zealand law, said in the debate that the formula of the Bill was if anything slightly stronger than the New Zealand formula, and that it would require a very different approach to interpretation from that customary in this country. ( Endnote 32 )

That, however, is only the "weak" part of the Bill. The "strong" part, and the Bill's unique feature, which has no analogy in New Zealand or, as far as I know, elsewhere, lies in its provisions about declarations of incompatibility. Under clause 4 a declaration of incompatibility may be made by the court if it is satisfied that there is an unavoidable conflict between Convention rights and primary legislation; and the same is to apply in the case of subordinate legislation if it cannot be made compatible because of primary legislation. The declaration is not to affect the validity, continuing operation or enforcement of the offending provision, nor is it to be binding on the parties. But it may lead to a "remedial order" amending the offending legislation which may be made by a minister of the Crown and must be approved in draft by positive resolution of each House of Parliament. There are, however, certain escape clauses. In case of urgency the Parliamentary resolutions may be dispensed with for up to forty days. Furthermore, a minister may make a remedial order without a declaration by the court if it appears to him that a finding of the European Court of Human Rights produces an incompatibility with the UK's Convention obligations - a provision comparable to that of the European Communities Act 1972 under which ministers may amend legislation by Order in Council or regulations for the purpose of reconciling it with EU law.

A remedial order, like the provision of the European Communities Act, is an exceptionally drastic form of Henry VIII clause, of the kind that has recently worried the House of Lords' Delegated Powers Scrutiny Committee. It may well be the most drastic example yet seen, since it is expressly made capable of operating retrospectively, subject only to a ban on retrospective criminal liability. There is wide power to include "such incidental, supplemental, consequential and transitional provisions" as may be thought appropriate by the minister and it may amend or repeal legislation, whether primary or subordinate, other than that containing the incompatibility. These extraordinary powers were the subject of protests in the House of Lords, Lord Simon of Glaisdale say "we cannot have Henry VIII trampling through the statute book in this way." ( Endnote 33 ) But, inevitably, such powers have to be accepted, however grudgingly, as part of the mechanism for adopting an external system of law, and in default of new and speedy Parliamentary procedures.

Reverence for the sovereignty of Parliament was the motive behind this remarkable amalgam of judicial and executive powers. But the sovereignty of Parliament is not what it was, having suffered severe diminution by its subjection to EU law. Lord Lester's earlier private member's bill had provided for the Convention rights to prevail over inconsistent legislation without intervention by the executive, but now he declared a change of mind and accepted the government's plan as "an ingenious and successful reconciliation of principles of Parliamentary sovereignty and the need for effective domestic remedies" ( Endnote 34 ) though only, he added, "after a good deal of arm- twisting by some members of this place rather more noble and learned than myself." It is not surprising if some degree of intellectual harassment was thought justified in order to secure the support of Lord Lester, with his immense experience and authority in this field.

If, then, a declaration of incompatibility is granted in some case, what is the likely result? A litigant has established that he ought to win his case because of the infringement of his human rights, but yet he loses it since the declaration does not affect the validity of the offending statute or regulation, or its enforceability. The appropriate minister must then consider whether to make a remedial order. It would seem inevitable that the court would grant a stay of execution while the minister considers whether to make an order, and whether it should be retrospective. If he makes a retrospective order, he deprives the victorious party of the fruits of his judgement. If he does not, he leaves the other party to suffer a violation of his human rights; and it is the same if the minister makes no order at all. The minister's position between these two fires is far from enviable. There may be a lot of money at stake and the government itself may be a party, so that it is compelled to be judge in its own cause. In such cases there is likely to be trouble in Parliament and the positive resolutions may be opposed. It is hard to think of a more invidious position for a minister.

And what about the rule of law? To allow questions of personal legal right to be decided by executive discretion in this way is contrary to the rule of law in its most basic sense, the rule of law as opposed to the rule of discretionary power - an aspect which does not appear to have been mentioned in the House of Lords' debates. Remedial orders will, indeed, be subject to judicial review, and the Bill makes no attempt to exempt them. But the taking of human rights cases so far out of the course of ordinary law does not seem to be an adequately constitutional solution.

Finally there is another possible pitfall. Article 6 proves that in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. It is clear from Strasbourg jurisprudence that this Article, which of course embodies the rule of law, requires a judicial determination of a party's civil rights. But the civil rights of litigants, where declarations of incompatibility have been issued, are to be determined by ministerial orders plus Parliamentary resolutions - anything but judicially. It would be the ultimate paradox if our Human Rights Act itself were to violate the Convention. Yet how can it avoid doing so? And does this not underline the inherent contradiction of attempting to reconcile the irreconcilable - fundamental rights and Parliamentary sovereignty?

Effect on Subordinate Legislation

Subordinate legislation, in so far as incompatible with Convention rights, is to be brought into line by judicial decision or by ministerial order. There is to be no declaration of incompatibility, save in the case of subordinate legislation which cannot be amended because of primary legislation. Therefore a court or tribunal, faced with an incompatible regulation, and in accordance with its duty under clause 6 to decide in accordance with Convention rights, must disapply the offending regulation. There may of course be cases where the incompatibility cannot be removed by a clean cut, and then a ministerial order may be necessary.

A ministerial order is a remedial order with wide powers under clause 11, including retrospective operation and power to make supplemental or consequential provision. It requires confirmation by affirmative Parliamentary resolutions in both Houses. But the power to make it in respect of subordinate legislation arises only where it appears that, "having regard to a finding of the European Court of Human Rights" the legislation is incompatible with a Convention obligation. This looks as if it were intended for occasions when some new decision emanates from Strasbourg and requires some urgent adjustment. In other cases the minister responsible for the subordinate legislation will normally have power to revoke it independently and if necessary replace it.

Other features of the Bill

A minister in charge of a Bill in either House of Parliament must, under clause 19, make a written statement, to be published as he thinks best, before Second Reading saying either that in his view the Bill is compatible with Convention rights or else that, though he cannot make such a statement, the Government wishes to proceed with the Bill. Where the court is considering whether to make a declaration of incompatibility the Crown is entitled by clause 5 to be given notice in accordance with rules of court. A minister or his nominee is then entitled to be joined as a party. In a criminal case, a person so joined may appeal to the House of Lords against any declaration of incompatibility.

As regards locus standi, the Bill in clause 7 follows settled Strasbourg law by confining the right to sue a public authority to the "victim" of the unlawful act. This doctrine excludes claims by conservation groups, amenity societies and other public interest groups - one case in which the Strasbourg law is less generous than our own.

The Lord Chancellor explained in Parliament that the government viewed proposals for a human rights commission as premature. ( Endnote 35 ) They were now rules out, but would need consideration in relation to other bodies such as the Equal Opportunities Commission and the Commission for Racial Equality. A motion by Lord Lester for power to appoint a Human Rights Commissioner was defeated by the government on Third Reading.

The Secretary of State is given wide powers to give effect to any protocol accepted by Britain and to amend the derogations and reservations, relating to terrorism in Northern Ireland and to the right to education which are reproduced in Schedule 2.

Finally, as this audience will well know, judges of the court of Appeal and the High Court and Circuit judges (and their equivalents in Scotland and Northern Ireland) may be appointed to the Court of Human Rights at Strasbourg, retaining their offices but not their duties. The Lord Chancellor or a Secretary of State may make orders concerning pensions and terms of service.

The Future

The incorporation of the Convention on Human Rights into our own law must certainly be regarded as one of our great constitutional milestones. It makes a quantum leap into a new legal culture of fundamental rights and freedoms, something that Britain was once proud to be able to do without, but which has now become indispensable in the rapidly developing European legal world into which we are more and more tightly drawn. It will confront the judges with many new problems and it will call for new techniques. Value judgements will have to be made on imponderable questions of public interest, democratic necessity, and the protection of health or morals and similarly ill-defined matters. These rights and freedoms will often pull in different directions and delicate balancing exercises will be demanded. It does not seem too much to say that the judges will be forging a new constitutional framework within which the citizen will enjoy his rights and liberties. It will need to be done boldly and in a spirit of liberal interpretation.

Inevitably there will be criticism of the increased powers and duties being given to the judges. But it is only because of our national constitutional myopia that such criticism is common. We do not seem to realist that, in comparison with many other countries our conception of the judicial function is a narrow one. All through the half-century since we joined the European Convention the case for incorporation has been dogged by this fallacy about judicial power - even Lord Mackay, the former Lord Chancellor, opposed it on the ground that it would drag the judges into politics and make their appointments controversial like those of the American Supreme Court justices.

In the second reading debate in the House of Lords the Lord Chief Justice, Lord Bingham of Cornhill, dealt faithfully with these objections. ( Endnote 36 ) He thought it highly desirable that we in Britain should help to mould the fundamental law by which we are governed, and that there should no longer be thought to be a superior form of justice beyond our shores which our own judges were not allowed to administer. Incorporation should strengthen public confidence in our democratic and judicial institutions. As for dragging the judges into politics, they were of course there already, and there had been no dire consequences either in Britain or in the other countries which had incorporated the Convention.

Perhaps I should end by confronting that familiar old adversary, the floodgates argument. Doubtless there will be a spate of human rights claims in the early days of the new Act, particularly since, as I have ventured to observe, such important questions seem to be open. Much will be heard of Pepper v. Hart, I think, as guidance is sought from Parliamentary statements. But things should soon settle down, just as they did in Canada after the initial overload caused by the Charter of Rights. There is so much common ground between human rights and English law that they will surely co-exist harmoniously.

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