European Convention on Human Rights

Lord McCluskey Excerpts

Thursday 19th May 2011 Lords Chamber

[The Lord Speaker (Baroness Hayman)]

The Question is that this Motion be agreed to.

[Lord McCluskey]

My Lords, before the noble and learned Lord sits down, will he comment on the matter of the judges doing what Parliament instructed them to do? He will recall—

[Baroness Hayman]

The Question has been put. We are now into the debate. The noble and learned Lord could, of course, speak in the gap if necessary, if he is not on the speakers’ list.

--- Later in debate ---

[Lord McCluskey]

My Lords, first, I apologise to your Lordships and to the House for being out of order in seeking to intervene at an early stage, which was plainly the wrong time to do so. If I may, I will now put a brief question to my noble and learned friend Lord Irvine of Lairg—indeed, I hope it will also be addressed by the Minister. The noble and learned Lord referred in his speech to the judges doing what Parliament instructed them to do. He will recall, as the noble Lord, Lord Faulks, and the noble and learned Lord, Lord Scott of Foscote, and others reminded us, that when the clause that became Section 2 of the Human Rights Act 1998 was before Parliament, he and his fellow Ministers repeatedly advised the legislature that it meant what it said—the noble and learned Lord, Lord Scott of Foscote, has referred to this—that the courts of the United Kingdom had to “take into account” any relevant judgment or opinion of the Strasbourg court. Ministers, including my noble and learned friend, said that those judgments and opinions were not to be treated as a strictly binding precedent for the United Kingdom courts.

My question is this: is the noble and learned Lord—and is the Minister—able to reconcile that advice with certain recent judgments of both the House of Lords and the Supreme Court that hold that the UK courts had no alternative but to apply definitive judgments of the Strasbourg court? As the noble and learned Lord, Lord Rodger of Earlsferry, put it in a case in 2009, which was quoted with unanimous approval by the judges in Horncastle:

“Strasbourg has spoken, the case is closed”.

My question is: is that what Section 2 of the 1998 Act must now be taken to mean?

[Lord Irvine of Lairg]

My Lords, I believe the advice that I gave to the House at the time of the passage of this Bill was correct, but I am not going to be drawn into a commentary on subsequent decisions.