Coroners and Justice Bill

My Lords, my name is attached to the amendments, and I have tabled a couple of my own, Amendments 106A and 107A. I shall concentrate on why I consider that the Bill is not fit for purpose because Part 7 does not comply with the European Convention on Human Rights. Before I do that, perhaps I may say how much I agree with what the noble Lord, Lord Soley, has just said. The concerns that he expressed are very important and place this House in something of a dilemma, because we are faced today with the problem that Part 7 was not properly debated in the other place—which is a matter of great regret—that we are the scrutineers and the revising Chamber, and that, plainly, Part 7 as it stands is not satisfactory. Somehow we need to try to stimulate the Government to reflect on what the noble Lord, Lord Soley, and others have said. First, I thank the Minister and his advisers for having met the noble Lord, Lord Borrie, and me to discuss the possibilities of Amendments 106A and 107A, which I tabled in the hope—foolish optimist that I am—that there might be some way of making Part 7 convention-compliant. I am grateful for that. One of the points that Her Majesty's Official Opposition make in their scepticism about aspects of the Human Rights Act is that it does not allow Parliament to do its job sufficiently and leaves too much to the courts to repair legislation enacted by us. I have some sympathy with that, even though I think that I am one of the architects of the Human Rights Act. It has come to be seen as an easy get-out for Governments, who can simply say, "The courts have an obligation to read and give effect to legislation if they possibly can to make it convention-compliant, so it does not really matter if the legislation enacted does not really get it right on its face". One of the attractive points made by the Opposition is that it is really important for Parliament to do the best it can to pass legislation that is fit for purpose in being convention-compliant. Yesterday evening, in a short debate on Section 5 of the Public Order Act, the noble Lord, Lord Bach, perfectly correctly referred to the fact that the European Court of Human Rights has held that Article 10(1) of the convention, the free speech guarantee, applies, ""not only to ideas that are favourably received, or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb".—[Official Report, 28/10/09; col. 1190.]" That is the starting point for Article 10. There is a right to freedom of expression which can be interfered with only where there is legal certainty and necessity—proportionality. I am sure that that is common ground and that Ministers would not dissent from that basic position. There is also the right to property, the right to the peaceful enjoyment of one’s possessions in Article 1 of protocol 1. The Explanatory Notes to the Bill, although they do not explain why the Government think that the provisions are convention-compliant, repeat the fact that they think that they are convention-compliant. I do not understand how a Minister could have been advised to come to that view. In the first place, the criteria in the Bill, which the court will be expected to exercise, are not only incommensurable—you cannot weigh one properly against the other for the reasons explained in our previous debate—but they are so vague that, even without the "offence to the public" provision, which will now happily be removed if Part 7 stands, as to have the chilling effect to which the noble Lords, Lord Soley and Lord Borrie, have referred. Therefore, the first vice in these provisions is that they are vague and lack legal certainty. That would be quite enough to cause the European Court of Human Rights to say that they are in breach of Article 10. Secondly, they also sweep too broadly; they are disproportionate. The Minister will no doubt say in his reply that all that may be, but it is for the judge to make sure under the Human Rights Act that the provisions of Part 7 can be read and given effect in a way that cures the vices of legal uncertainty and overbreadth. The courts cannot cure the vice of lack of legal certainty. That vice can be corrected only by Parliament. As the Joint Committee on Human Rights, on which I serve, has repeatedly pointed out, it is quite wrong to use the Human Rights Act, which I strongly favour, as a substitute for proper legislation. The safeguards have to be in the Bill. In Amendment 106, especially, and Amendment 107A, I have endeavoured, in a rather pathetic way, to find some way of writing something into the Bill, not very satisfactorily, that might deal with this. Obviously, the Minister will wish to explain whether he is willing to accept that or something very similar to it. It is important that we know that. It is also important to know whether there is any Strasbourg case that Ministers can point to in this debate that supports their belief that this satisfies either legal certainty or proportionality in the context we are talking about. I know of no basis in Strasbourg case law that could possibly support a view that these provisions as they stand are convention compliant. I very much hope that the Minister will be able to enlighten us because the legal advice he will have received about why it is compatible will surely have pointed to whether there are any Strasbourg cases—I bet there are not—and I reserve the right, if I may, having heard that to reply to him later in the debate. I hope that when the official Opposition come to decide what to do they will join those of us who want to get legislation passed that is fit for purpose and not leave it to the courts to give a declaration of incompatibility in future or to try to rewrite the statute instead of us having done so.