RIGHT OF CROWN TO INTERVENE

HC Deb 17 June 1998 vol 314 cc391-9 4.46 pm

The Parliamentary Under-Secretary of State for the Home Department (Mr. Mike O'Brien)

I beg to move amendment No. 120, in page 3, leave out lines 33 and 34 and insert—

1. '(a) a Minister of the Crown (or a person nominated by him);
2. (b) a member of the Scottish Executive.'.

The Chairman of Ways and Means (Sir Alan Haselhurst)

With this, it will be convenient to discuss the following amendments: No. 19, in page 3, line 33, leave out from 'Crown' to end of line 34.

No. 20, in page 3, line 34, at end insert 'or (c) any other public authority which can show that it would be affected by such a declaration of incompatibility.'. Government amendments Nos. 121 to 124.

Mr. O'Brien

In moving Government amendment 120, it may be convenient if I also speak to the amendments grouped with it, starting with Opposition amendments Nos. 19 and 20. However, it may be helpful if I first explained the intention behind clause 5.

The purpose of clause 5 is to give the Crown the right to intervene in proceedings in which the court is considering whether to make a declaration of incompatibility. The need for the Crown to be given that right flows from the importance of such a declaration. It is right that the Government—who answer for the United Kingdom in proceedings at Strasbourg and will have responsibility for considering whether to propose to Parliament the amendment of legislation in respect of which the declaration is made—should have the opportunity to make any relevant arguments to the court before it decides whether to make a declaration. The need for the Government to be able to make such arguments is the reason why clause 5(1) entitles the Crown to be given notice of such a case, and why paragraph (a) of clause 5(2) entitles a Minister to be joined as a party to the proceedings.

Paragraph (b) of clause 5(2), which amendment No. 19 seeks to remove, currently permits a person nominated by a Minister of the Crown to be joined to the proceedings. There is good reason for including that provision, and therefore for opposing the amendment.

It will sometimes be more appropriate for a person nominated by a Minister, rather than the Minister himself, to be so joined—for example, when there is a public interest in relation to a private Act. It may be more appropriate also in cases relating to—to name but a few—Measures of the Church Assembly or Measures of the General Synod; regulators of public utilities; or, perhaps, the Director General of Fair Trading. In such cases, the appropriate person to intervene—the person who is best able to make arguments on the legislation in question—may well not be the relevant Minister.

However, I see several difficulties with the alternative proposed in amendment No. 20. First, it focuses not on those who are primarily responsible for and familiar with the legislation, but on those whose actions are governed by it. Secondly, it is ambiguous. What does it mean when it refers to a public authority being "affected by" such a declaration?

As we explained in Committee, a declaration does not affect the validity, continuing operation or enforcement of the relevant legislative provision. It is only if Government and Parliament decide to amend the legislation that anyone would be affected. So interested parties should take up their cases with them rather than with the courts.

Alternatively, if "affected" were construed in another way—for example, to cover anyone affected by the provision of legislation rather than the prospect of a declaration —innumerable organisations might satisfy the requirement. Clearly, that would create an impossible situation. Arguments over who was eligible to be joined would be interminable, and the proceedings might grind to a halt with so many parties involved. That might not be bad for the Opposition, but it would be bad law and bad for the courts. Why do the Opposition think that the entitlement to be joined should be confined to public authorities? Legislation can affect non-public bodies, and courts can make declarations of incompatibility in cases that do not involve a public authority.

The amendment may be intended to elicit information, and in due course the hon. Member for Hertsmere (Mr. Clappison) may describe it as such,. However, its effect would be to undermine the Bill. In the light of my comments, I hope that, in due course and after full consideration, the Opposition will not press amendments Nos. 19 and 20.

I turn now to Government amendment No. 120. Clause 5 provides that, where the court is considering whether to make a declaration of incompatibility, a Minister of the Crown or a person nominated by him is entitled to be joined as a party to the proceedings. It is envisaged that that will remain the position in all cases, but in Scottish cases which relate to devolved matters, Scottish Ministers should also be entitled to be joined as a party.

The purpose of amendment No. 120 is therefore to enable a member of the Scottish Executive to be joined as a party to proceedings in addition to a Minister of the Crown or a person nominated by him where the court is considering making a declaration. The detailed arrangements for notice to be given will be set out in the rules of court that are provided for in clause 5.

Government Amendments Nos. 121 to 124 are technical amendments to clause 5. Clause 5(1) entitles the Crown to be notified when a court is considering making a declaration of incompatibility. Clause 5(2) currently provides that a Minister of the Crown or a person nominated by him is entitled to be joined as a party to proceedings on an application made to the court". As the Crown is entitled to be joined as a party, there is no need for an application to be made. Amendment No. 121 accordingly amends clause 5(2) so that the requirement is simply for the Crown "giving notice" to the court. Amendments Nos. 122 and 123 make consequential changes to the wording of clause 5(3). Amendment No. 124 likewise makes consequential changes to clause 5(4).

Mr. James Clappison (Hertsmere)

The Minister was quite correct to anticipate the exploratory nature of amendments Nos. 19 and 20. It was useful to have had the opportunity to listen to his remarks before making my case for the amendments. His speech was helpful, and clarified some of the issues.

The Minister was right to say that clause 5 gives the Crown the right to intervene in proceedings when a court is considering whether or not to make a declaration of incompatibility. We agree. It is right that the Crown should be able to be party to the proceedings in such cases, not least because, as the Minister said, the Crown would ultimately be responsible if the case went to Strasbourg.

We agree that, when a court is considering making a declaration of incompatibility, it is right that the Crown should be a party to those proceedings so that its views may be heard before the court makes that determination. Our concerns arise out of our agreement on that point—I do not want to put it too strongly, as these are exploratory amendments —and are reflected in amendment No. 19. We wish to know a little more about the persons who may be nominated by the Crown to represent the Crown.

I listened carefully to the Minister's opening statement. It is true that he gave some examples of cases in which persons would be nominated by the Crown in these proceedings. However, I have two questions arising out of his comments. First, will the Minister spell out clearly what criteria will be used to decide whether a Minister should be a party to the proceedings or a person should be nominated by the Crown? He provided some examples, but it was not entirely evident on what principle that decision would be based.

My second point also flows from our agreement on the fundamental right of the Crown to be joined to the proceedings. When a person is nominated by the Minister in the circumstances envisaged by the clause, upon whose behalf will that person act? Will such people take their instructions from the Crown? Will they reflect the Crown's concerns in the submissions that they make? What other interests may such people represent? What will happen in the event of a conflict of interest? Could a Crown nominee also represent another party to the proceedings?

We seek reassurance that the person nominated by the Crown will act both on the instructions of the Crown and clearly on its behalf. There must be no other conflict of interest; the Crown's views must be heard when the court decides whether to make a declaration of incompatibility. We seek to explore those concerns in amendment No. 19.

The Minister has not fully satisfied our concerns outlined in amendment No. 20. We want to explore whether other public authorities can be part of the same proceedings. At this stage, I do not want to anticipate the debate that we shall have on clause 6 regarding the definition of public authorities. Suffice it to say, for the purposes of the discussion on this clause, that that definition could range widely.

Many bodies may be deemed public authorities for the purposes of the Bill. We envisage that, if a breach of a convention right is alleged against a public authority, it might affect many other public authorities of the same nature. An obvious example that springs to mind is the Churches. A Church may be a party to the proceedings, and the principle applying to it may affect many other Churches, faith communities and so on. We are concerned to explore whether their voices should also be heard as parties to the proceedings.

I take the Minister's point about seeking to avoid complexity, and joining many plaintiffs to the proceedings. However, he will know that it is commonplace in civil proceedings for one plaintiff to represent a number of others in cases where there is a common interest. For example, in personal injury cases, one victim may represent many other victims whose cases have broadly the same factual background.

We want to explore whether the same procedure could be employed here, so that we could hear the voices of all public authorities that may be affected by a particular decision. At the end of the day, such decisions could be very significant for the public authorities concerned. A great deal could be at stake, and we are concerned to explore whether their voices may be heard also. On that basis, I commend our amendments. I should like the Minister to explain those issues before I respond.

5 pm

Mr. Andrew Lansley (South Cambridgeshire)

I am grateful for the opportunity to add a little in support of amendments Nos. 19 and 20. I was interested in what the Minister said, but it may be sensible to ask several more questions, which he has not yet adequately answered.

I understand that the prime purpose of amendment No. 19 is to find out a little more about the circumstances in which the Government anticipate that Ministers will nominate other persons to be joined as a party to proceedings. The Minister gave some examples. One can understand that some of the regulators—the Director General of Fair Trading and the like—may have such an important status. The debate raises the question of the extent to which the Government anticipate that public authorities comprise bodies beyond a Minister's ambit. On that rests quite an important question.

If the Government believe that bodies outside a Minister's ambit are very often likely to require to be joined to proceedings, and therefore will require nomination by Ministers, would it not be better—linking to amendment No. 20—to clearly define a public authority for these purposes? I understand that we should not anticipate the debate on clause 6, and that, to an extent, that point takes us on to clause 6, but if one were to use the term "public authority" in clause 6 more definitively, the point would relate to clause 5. Rather than leaving the point vague, there should be a clearer definition.

Very often these days, Ministers proceed by way of enabling legislation. In this context, the provision is not even enabling. It simply gives Ministers discretion to nominate persons —apparently without any definition of scope—to be joined to proceedings. As far as I can see, such persons are not even defined as those who have the character of a public authority. It would be useful if the Minister explained how widely the Government expect the power to be used.

The debate also raises the question of how many times Ministers expect that it will be necessary to seek to join proceedings, and in what circumstances. How regularly would Ministers need to be part of those proceedings? If other bodies were to be joined to such proceedings only very infrequently, it would be perfectly possible for Ministers to act on behalf of public authorities—if the definition of them is narrowly drawn. There is no doubt that, in order to protect the powers of the Director General of Fair Trading, which derive from legislation and which would, as the Minister said, have to be amended by order, the President of the Board of Trade or Ministers would be perfectly competent in acting on behalf of the director general.

The Minister has not adequately explained under what circumstances it would be necessary for persons other than the Minister to be entitled to act on his behalf. I understand that it would be much more convenient for Ministers to rely on public authorities to do the job if such instances occurred frequently. However, if we are considering relatively few instances, Ministers could perfectly possibly act on behalf of public authorities, especially if such authorities were relatively narrowly constrained.

A second aspect of what the Minister said seemed to be quite wrong. If I understood it correctly, the heart of his argument was that anybody who may have an interest and be affected by proceedings before a court seeking a declaration of incompatibility would have recourse to the process by which any declaration of incompatibility is followed up by the introduction of an order subject to affirmative resolution. The Minister rightly said that a declaration of incompatibility does not in itself lead to prevention of activity under the legislation to which it applies.

I may be misunderstanding that point, but it seems possible for a court to act directly on secondary legislation; to declare where it is not compatible with the European convention by virtue of primary legislation. As the Bill states, the court can quash or intervene in respect of secondary legislation in order to make it compatible with the European convention without a subsequent statutory instrument or order coming before the House.

My understanding is that, if that is the case, there are many instances in which the detail of the application of legislation under statutory instruments could potentially be declared incompatible by a court, and, in effect, amended in its working practices to bring the secondary legislation into line with the terms of the European convention directly, without subsequent recourse to Parliament through further statutory instruments.

I acknowledge that, in that context, we would be dealing not with the high policy of legislation but with its detail, but it is precisely in relation to such detail that bodies other than Ministers—perhaps a wider range of public authorities that operate under the detail of legislation, especially under the detail of secondary legislation made in pursuance of the intentions of Ministers—may often have detailed reasons to want to intervene and be joined as a party to proceedings, so as to explain how the declaration of incompatibility would affect them.

We have not arrived at that debate yet, but, if a wider definition could be made of the public authorities affected by a substantial amount of the secondary legislation that could be directly subject to the decision of a court on a declaration of incompatibility, my hon. Friend the Member for Hertsmere (Mr. Clappison) will have raised an important issue with our amendments—an issue to which the Minister has not yet given us an adequate response.

Mr. Mike O'Brien

I am grateful to the hon. Member for Hertsmere (Mr. Clappison) for telling us that the intention behind his amendments is, by and large, to explore the issues raised by clause 5, and that he broadly agrees with the proposition that the Crown should be able to be a party to the proceedings in relation to a declaration of incompatibility.

The hon. Gentleman asked me to go beyond the examples I cited, and to give a few more. During his submission and that of the hon. Member for South Cambridgeshire (Mr. Lansley), reference was made, for example, to the Church. I know that some hon. Members have raised the idea that, at some stage, an issue might be raised in relation to the General Synod, or to the Church Assembly, which was its predecessor, and that it might then be possible for a Minister to decide that it was not for the Government but for another body to provide the information.

In making a nomination, the Government would have to consider the criteria as to what was the public interest in the Government's deciding to nominate a particular organisation to be present during the proceedings. Is there an interest in the court's being better informed, in that that organisation could perhaps put forward information to the court that may allow it to make a better decision?

Mr. Clappison

rose—

Mr. O'Brien

Let me explore the argument a little further; then 1 will give way to the hon. Gentleman on that point.

The issue for the Minister is fairly narrow: what is the public interest in having a person nominated by the Minister as a party to the proceedings giving information to the court? That person is there not so much to challenge one side of the argument or the other, as to ensure that the court makes the right decision, with all the necessary information and arguments before it.

The person nominated will speak, in a sense, in his or her own capacity. Such people will be joined by the Minister who regards it as being in the public interest, and in the interests of a proper examination of the issues, that that person be joined. The Minister will decide who the person should be. The criterion is simply who the best person is to raise the arguments about whether legislation is compatible. A nominated person will be joined in his own capacity and would be acting on his own behalf—not on behalf of the Government. If the measures of the Synod were being considered, it is expected that the Synod itself would be nominated by the Minister if it were decided that that was in the public interest. The judgment would be made on those criteria.

Mr. Clappison

I was going to ask the Minister about that precise issue. If a case involved the Churches, would one of the existing parties to the proceedings—such as a Church—be nominated and, if not, what other organisation would be nominated? What happens if there is a conflict of interest between that of the party that the Minister has nominated to represent the Crown, and the Crown's own view?

Mr. O'Brien

It is anticipated that, in considering whether to nominate a particular individual or organisation, the Minister will take into account whether it is in the interests of the Government, Parliament and the nation that the issues should be aired before the court. The issue is not to join the party as a partisan in the case. We want to make sure that all the arguments which need to be put are put before the court, and information which may be relevant should be made available to the court.

It is not expected that the Government or the Minister would take such action on a large number of occasions. Having the power there—particularly in the sort of cases I have mentioned, and in cases such as that mentioned by the hon. Member for South Cambridgeshire (Mr. Lansley), who referred to the Director General of Fair Trading—is important. It is quite proper for such people to be nominated by the Minister.

Mr. Dominic Grieve (Beaconsfield)

The amendments from the Government and the Opposition are incompatible. The Government are trying to widen the ability to intervene, or to nominate somebody to intervene, and to remove the discretion of the court to prevent such a nomination from being acceded to. Previously, it had to be by application, and it will now be by notice. We are seeking to widen the criteria of people who might be able to intervene if they feel that their rights are affected.

What concerns me is that there may well be occasions when individuals or groups feel that a judgment will impinge on them very much. They might have an entitlement—certainly under the ordinary rules of court—to intervene and to be allowed to be joined. How will they be affected by this position?

Mr. O'Brien

The hon. Member for South Cambridgeshire also raised those points, and was concerned that persons who might be affected by a declaration of incompatibility and any subsequent change would be able to be a party to the proceedings. Our view is that it should be a matter for the Government, the Minister and those nominated by him to inform the court's arguments and decisions. It should not be the right of persons who would not otherwise be able to be joined to the proceedings—merely because a declaration of incompatibility has been considered—to make themselves a party. If they have another locus to join in the proceedings, they can pursue that in the normal manner. We do not propose to create new mechanisms for parties to be joined.

The hon. Member for South Cambridgeshire explored that matter further, and asked about primary legislation and secondary legislation. In terms of primary legislation, he is right to say that we envisage that an individual or organisation would approach the Government, as it is a decision for the Government whether to act on the declaration of incompatibility. In a sense, nobody is affected until the Government have made that legislative change.

Quite rightly, the hon. Member for South Cambridgeshire asked about secondary legislation. Our view is that, if we were to create the circumstances in which anyone who might be affected by a decision could somehow parachute in and create a new situation in the court, it would lead to chaos. If they have the right to be a party to the proceedings, they should, in the normal course of a civil case, become a party to the proceedings. That would not be the effect in a criminal matter. We must be careful not to create new opportunities for persons to become involved in criminal matters.

The best way for persons interested in the outcome of a secondary legislation matter to proceed is that the Government will have to consider how they deal with any decision in relation to secondary legislation by a court. At that point, it is right that any person or organisation interested in any change that the Government may or may not be considering should deal with the Government and Ministers.

5.15 pm

The opportunities are there. It may be that those involved have the ability to become a party to a civil proceeding. They almost certainly would not, and should not, have the ability to become a party to a criminal proceeding. In the normal course of events, if they are able to become a party to a proceeding, it is a matter for them to do so. Those who would not have the ability to become a party to a proceeding must deal with the Government afterwards.

The hon. Member for South Cambridgeshire also touched on the matter of definitions of public authorities. We are moving to that matter, and—if he will forgive me—it is probably better if we deal with it later. I think that I have dealt with most of the points raised, and I hope that the hon. Member for Hertsmere will not press his amendments.

Mr. Clappison

I have listened carefully to the Minister, and I am grateful for his full response. This has been a useful exercise, and we have taken matters a little further through this exploratory amendment. However, I am still not entirely satisfied with where matters stand. We have found out a bit more about the circumstances in which the Government envisage the power to nominate somebody being used, but we are not clear why they want to do so.

I am also not entirely satisfied about why it would not be simpler for the Minister simply to nominate someone to represent the Crown in all such proceedings. I draw some reassurance from the fact that the Minister said that there will be few proceedings in which it is envisaged that someone will be nominated to act on behalf of the Crown. However, even in those few proceedings, there may be a risk of a conflict of interest arising. The Minister knows full well that, in such litigation, it is not always possible to foresee where a conflict of interest will arise. There are occasions when there appears to be no conflict of interest at the beginning of litigation, but one develops during litigation.

We are concerned that the Crown's voice is heard, and that it represents the public interest when a court is considering whether to make a declaration of incompatibility. The public interest, as represented by the Crown, must not be affected by any other considerations which another party to the proceedings might well have. We are speaking up for the public interest in this matter. I have listened to what the Minister has said, and, to make progress, I do not propose to press the amendment.

Nor do I propose to press amendment No. 20, although the question of litigation affecting large numbers of public authorities—the Church is a classic example—should be dealt with. We have heard concerns expressed in this House and elsewhere about vexatious litigants who are queuing up to bring charges against the Churches. 1 do not want to go too far down that road at the moment, but I take that as justification for the amendment. However, in the interests of making progress, I beg to ask leave to withdraw the amendment.

The Chairman

Order. Procedurally, that is not necessary, as I am about to put the Question on a Government amendment on which the others hang.

Amendment agreed to.

Amendments made: No. 121, in page 3, line 35, leave out 'an application made to the court'

and insert 'giving notice'.

No. 122, in page 3, line 37, leave out 'An application' and insert 'Notice'.

No. 123, in page 3, line 37, leave out 'made' and insert 'given'.

No. 124, in page 3, line 40, leave out 'an application under this section'

and insert 'a notice under subsection (2)'.—[Mr. Mike O'Brien.]

Clause 5, as amended, ordered to stand part of the Bill.