ASSISTANCE TO INDIVIDUALS (Hansard, 27 July 1998)

§ Mr. McNamara
I beg to move amendment No. 45, in page 26, line 29, at end insert

'; or

(c) which an individual has commenced, or wishes to commence, under section 62 or 63 of this Act; or

(d) which an individual has commenced, or wishes to commence, by way of judicial review which raises relevant issues within the general remit of the Commission.'.

The amendment deals with assistance to individuals. As the Bill stands, it does not permit the commission to assist complainants who want to commence proceedings under the anti-discrimination provisions. The application of the clause is limited to paragraphs (a) and (b), and I want to extend it to include (c) and (d), to make it possible for the commission to help individuals in such cases.
I should also be grateful if the Minister would clarify whether the commission will be able to assist litigants who want to go to judicial review when such issues are raised.

§ Mr. Paul Murphy
As I have made clear, the Government have received many proposals to enhance the powers of the commission, in the form not only of amendments but of representations by interested bodies in Northern Ireland and elsewhere. We have taken those proposals seriously and want to consult colleagues and interested parties further before reaching a final view. We are open to the possibility of tabling amendments in another place to give effect to some of those representations. Although we would not want to accept the amendment at this stage, we will not reject the arguments behind it until we have looked into it more carefully and consulted. The judicial side will be dealt with later.

§ Mr. McNamara
I am grateful to my hon. Friend, and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ Mr. McNamara
I beg to move amendment No. 46, in page 27, line 4, at end add— '(5) The Commission may, with the permission of the court, submit its opinion as amicus curiae on the substance of the proceedings before the court, irrespective of whether the Commission is either a party to the proceedings, or has granted assistance in relation to proceedings under subsection (2).'.

The First Deputy Chairman
With this, it will be convenient to discuss the following: Amendment No. 47, in clause 57, page 27, line 12, after 'Ireland', insert 'the Equality Commission for Northern Ireland, the Northern Ireland Human Rights Commission, any organisation with a legitimate interest,'. Clause 57 stand part.

§ Mr. McNamara
The sad thing about the clause is that it mentions restrictions on applications that may be made. My amendment would extend the rights of the commission so as to extend the rights of citizens in general. It would clarify the commission's position in litigation to which it is not a party or acting to assist a complainant, but in which it has an interest in issues that have been raised. The commission should have the power to submit amicus curiae arguments to courts in which litigation is of relevance to its mandate. It should be able to submit legal arguments on the interpretation of matters before the court even if it is not a party to the litigation, as that would enable it more effectively to carry out the advisory and educational functions envisaged in the agreement. When push comes to shove, the commission will be able effectively to conduct its important responsibilities only if it is able to appear before the courts.
Amendment No. 47 seeks to add to the list of people who are not subject to restrictions on applications of rights the Equality Commission for Northern Ireland, the Northern Ireland Human Rights Commission, any organisation with a legitimate interest". The amendment is tabled in the broad public interest to prevent discrimination. The ability to challenge discrimination should not be confined to the Government, but should be opened out to include those organisations. During our debates on incorporation of the European convention on human rights in United Kingdom domestic law, there were arguments about the powers of people to intervene as third parties in class issues or other cases in which they might have an interest. As we are to have a commission, I believe that that power should be given to the organisations that I have mentioned, and should not be limited only to law officers, whose interests may not always coincide with those of the other organisations.

§ Mr. Peter Bottomley (Worthing, West)
I support the amendments. Without such amendments, the commission would have to work through Ministers, and it needs the ability not to do only what Ministers want. It needs to be able to do what it wants, even if Ministers are not convinced of the arguments.
Amendment No. 46 deals with amicus curiae. Do organisations have the power to act in that way without the amendment? If not, I hope that the Government will consider it carefully. Such a power has been important in cases away from Northern Ireland. While Louise Woodward's plight attracted much attention in the United States, there was no attention for a man who is black, 79 British, a business man and old. He is exactly the opposite to Louise Woodward, who is a young white woman. Mr. Krishna Maharaj won a re-hearing of part of his conviction because two people were able to be amicus curiae in the Florida supreme court. British Members of Parliament asked to be amicus curiae, and the resulting hearing got Mr. Maharaj off death row. The same thing applied when Geoffrey Robertson QC and Philip Sapsford QC applied on behalf of the human rights group of the English Bar. We should learn lessons from outside our jurisdiction to ensure that we do not restrict ourselves within it.

§ Dr. Godman
The Belfast agreement states that the commission may be in appropriate cases, bringing court proceedings or providing assistance to individuals doing so. As the hon. Member for Worthing, West (Mr. Bottomley) said, it would be extremely helpful if the court could receive the assistance of an amicus curiae. The Latin term can be interpreted as meaning one who, as a bystander when a judge is doubtful of or mistaken on a matter of law, may inform the court. It ordinary use implies the friendly intervention of counsel to remind a court of some matter of law that has escaped its notice and in regard to which it is in danger of going wrong. The amendment makes good sense. Courts may require the friendly intervention of the commission, and I urge the Minister to consider the amendment seriously. The commission could be seen to be playing an important, if rare, role, and that should be provided for in the Bill.

§ Mr. Öpik
All that talk about Latin into English reminds me of my Latin teacher. We all remember a good teacher, and it is thanks to Jed Rothwell that I understand "amicus curiae". He used to give an exercise in which a phrase was translated from English into Latin, then to Greek and back again. I am told that when "out of sight, out of mind" is subjected to that exercise, it comes back as "invisible lunatic".
I strongly support the amendment as it would clarify the commission's position in litigation to which it was not a party or in assisting a complainant, but in which issues were raised on which it could helpfully give guidance. The commission should have the power to submit amicus curiae arguments to courts in such cases. Given the spirit of the agreement, it is likely to be enormously beneficial in ensuring an appropriate outcome to such an investigation. The commission should have the power to submit legal arguments on interpretation of legal issues before the court, even if it is not a party to the litigation. Furthermore, that would enable it more effectively to carry out the advisory and educational functions envisaged by the agreement.
I emphasise the importance of the commission's objectivity in relation to such a power. Any suggestion of sectarian behaviour, or any imbalance in the commission, would be enormously harmful to an organisation that is encouraged to provide an independent perspective as a third party. I am sure that that will not happen, as enough safeguards exist to make the commission objective. 80 However, we must have at the back of our minds the importance of ensuring not only that the commission is objective but that it is seen to be objective and fair.

§ Mr. Temple-Morris
I, too, support the amendments, particularly amendment No. 46. The point is technical, but it would be a brave Secretary of State or Government who tried to prevent the commission from offering itself as an amicus curiae if it decided to do so. One could argue that it would be within its rights to do so under several clauses. However, the amendment seeks to clarify the position against a background in which specific functions have been alluded to and in which there are financial considerations. It would be best to have clarification in the Bill, although I dare say that the practice could occur without that.
I underline what was said by the hon. Member for Worthing, West (Mr. Bottomley). The amicus curiae procedure is useful to the court. It would be a classic exercise for the commission to offer itself in that capacity to help the court. With the wealth of experience that we hope the commission will rapidly gather, I am sure that any court would be grateful for that assistance.

§ Mr. Paul Murphy
I am told that legal Latinists pronounce amicus with a long "i", but I do not believe that that is the right way. I know that my hon. Friend the Member for Hull, North (Mr. McNamara) was using ecclesiastical Latin in pronouncing it with a short "i". No one has used the English yet: friend of the court. It is to that purpose, and the principle behind it, that amendment No. 46 refers.
The commission can already assist a court as an amicus in the normal way without the need for special legislation. We recognise the force of the argument that it might be useful to make that clear in the Bill, but the wording of the amendment is not quite right. For example, an amicus does not normally act in cases in which it has an interest, and its role is to advise on the law rather than on the substance of a case. We will reflect further on this matter and return with an amendment if necessary, as we will on amendment No. 47. We cannot accept it at this stage, but the Government have received many representations on the proposal. Like several other proposals that we have considered this evening, we will reconsider it in the next few weeks.

§ Mr. McNamara
I am most grateful to my hon. Friend the Minister for his three quarter promise on the first amendment and his half promise on the second. I beg to ask leave to withdraw the amendment.