Mr. Edward Gamier (Harborough)
I beg to move amendment No. 47, in page 4, line 39, leave out 'or tribunal'.
§ The First Deputy Chairman of Ways and Means (Mr. Michael J. Martin)
With this it will be convenient to discuss the following amendments: No. 48, in page 5, line 2, leave out 'or tribunal' and insert 'sitting with a jury'. No. 49, in page 5, line 13, leave out 'or tribunal'.
No. 60, in page 5, line 13, at end insert'and (c) any criminal proceedings'.
§ Mr. Garnier
I have a suspicion that this will be a longish evening. It my well be that the Under-Secretary and I will have a great deal to say to each other. I trust that we can remain polite and courteous, because, although the issues that he and I will be discussing are complex and deserve full consideration by the House, there will be times when we will become fed up with the sound of our own voices, let alone each other's. I hope that he will be patient with me, and I will endeavour to be courteous and patient with him. I am sure that the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan), who leads for the Liberal Democrats on this aspect of our legislative programme, will listen with his usual care, and will want to contribute at the appropriate point.
I do not want to take up the time of the Committee unduly. I want to concentrate on amendment No. 60, which relates to a matter on which I want clarification from the Government. However, I first remind the House that amendment No. 47 would delete the words "or tribunal" in subsection (1)(a); No. 48 would do the same in subsection (2); and No. 49 would do the same in subsection (5)(b).
Amendment No. 60, which is the more interesting amendment, would add after subsection (5)(b) the wordsand (c) any criminal proceedings".
If one looks at clause 7 to see how the amendments fit in, it is clear that there is at least a doubt, which I hope the Minister will be able to resolve, about the full extent of the definition of "legal proceedings" in subsection (5).That subsection states:'legal proceedings' includes—(a) proceedings brought by or at the instigation of a public authority;and(b) an appeal against the decision of a court or tribunal.
1055 Will the Minister say whether subsections (5)(a) and (b) are merely examples of what constitutes legal proceedings, and are not to be taken as an exhaustive list, or whether I have got it the wrong way round and no other categories of legal proceedings can fully be described as coming within the definition?
Will the Minister also tell us whether the proceedings referred to in subsection 5(a)—proceedings that are brought by or at the instigation of a public authority—could include criminal prosecutions brought by prosecuting authorities or bodies entitled to initiate proceedings other than, for example, the Crown Prosecution Service or Her Majesty's Customs and Excise? They are what I would loosely call-I underline the term "loosely"—Government prosecuting agencies.
Do the proceedings referred to in subsection (5)(a) include, for example, private prosecutions brought by supermarkets against shoplifters? I also have in mind the fact that the Royal Society for the Prevention of Cruelty to Animals has the power to initiate prosecutions in the courts. The Minister will correct me if I am wrong, but I think that the gas, electricity and water supply companies can still, with their privatised status, bring prosecutions independently of the police and the Crown Prosecution Service.
To take the example of the supermarket, would Marks and Spencer, Tesco, Sainsbury or any shopkeeper who wanted to bring a private prosecution for shoplifting be deemed to be a public authority under the definition in clause 6, for the purposes of clause 7(5) and the instigation of proceedings?
I hope that my questions to the Minister have been reasonably clear, and that he has been able to take note of them. In our submission, clause 7(5) needs clarification. Can he give me that clarification now? I will not hold him to it, because he may need to take advice, but I should be grateful if he could give us some indication. If he wants to write to me or to signal the Government's attitude on clause 7(5) in some other acceptable way, I should be happy for him to follow that course. I hope that he will accept these inquiries in the spirit in which they are intended, which is to bring a degree of clarification to this subsection.
§ The Parliamentary Under-Secretary of State for the Home Department (Mr. Mike O'Brien)
I shall deal first with all the amendments, and then with some of the more detailed points put before us by the hon. and learned Member for Harborough (Mr. Gamier).
The general intention of amendments Nos. 47, 48 and 49 seems to be to exclude tribunals from taking account of the convention rights. To the limited extent that the amendments would achieve that end, we oppose them.
I remind the Committee that one of the Bill's key principles is that all courts and tribunals should take account of convention rights whenever they are relevant to the case before them. Otherwise, people would have no access to their rights unless they went to the European Court of Human Rights or to the Commission. We shall ensure that individuals can rely on their convention rights and have access to them at the earliest opportunity. We shall also make the convention rights an integral part of our legal system.
1056 One of the many drawbacks of the current arrangements is that the convention rights are cut off from people in the United Kingdom and viewed as something alien to us. In bringing rights home, we want everyone in Britain to view the basic principles set out in the convention as part of their national heritage. We shall not achieve that by practising an internal system of apartheid, keeping the convention rights as the exclusive preserve of the courts. That way, people will continue to see those rights as separate from their daily lives, not as something intrinsic to them.
It is in keeping with that principle that tribunals as well as courts are required by clause 3 to read and give effect to legislation as far as possible in a way that is compatible with the convention rights. It is also in keeping with that principle that tribunals should be able to take account of the convention rights when a person alleges that he or she has been the victim of an unlawful act by a public authority. Against that background, I shall deal with the detail of the amendments.
Amendment No. 49 is concerned with the definition of "legal proceedings" in clause 7(1)(b). It is our expectation that the great majority of cases in which the convention arguments are raised will fall within the scope of such proceedings. That is because, in most cases, it is likely that a victim of an act made unlawful by clause 6(1) will have available to him an existing course of action or other means of legal challenge, such as a judicial review.
Furthermore, in a significant proportion of such cases, a tribunal, not a court, will be the forum in which a case is brought. Social security, employment, housing and immigration are but a few of the many areas where tribunals handle the bulk of cases.
Amendment No. 49 seeks to amend the definition of legal proceedings so as to exclude appeals against the decision of a tribunal. Whether intended or not, the amendment does not preclude tribunals themselves from taking account of convention rights. For reasons that I have already explained, that, in a sense, is a point in its favour.
To prevent individuals from raising convention points in tribunals would cause unnecessary delay, expense and frustration. How would they be expected to raise them on appeal? However, the amendment might prevent a court hearing an appeal from a tribunal from having regard to the convention rights. However, given the inclusive definition of clause 7(5), that is not at all clear.
That may be a non-intended set of outcomes. If one has concerns about the ability of tribunals to deal with convention issues, one should surely wish people to be able to rely on their convention rights when the matter is appealed up to the appropriate court.
Amendments Nos. 47 and 48 relate to cases brought under clause 7(1)(a)—that is, cases brought solely on convention grounds. As I have said, we expect that such cases will be relatively infrequent, but where they do arise, it is likely that a tribunal will sometimes be the most appropriate forum for hearing the case.
If the case concerns a subject which is usually heard, in the first instance, by a tribunal, there is a good prima facie case for assuming that a tribunal will be the correct place in which to hear the convention case. The two amendments will prevent a tribunal from being designated for such a purpose. 1057 Amendment No. 48 goes even further, by requiring that the venue must be a sitting court with a jury. Such a requirement seems so bizarre that I do not think that it is intended to be taken entirely seriously. The hon. and learned Gentleman did not put it strongly, and made it clear that he is merely trying to ascertain some information rather than to press the points. If the Opposition were to press the amendment seriously, I could only imagine that they were trying to make proceedings under clause 7(1)(a) unwieldy, making it a wrecking amendment.
The Government are fully aware that the Human Rights Bill will bring about major changes for the legal professions.
We do not for one moment underestimate the amount of preparatory work that will have to be undertaken to ensure that both courts and tribunals are able to handle the convention issues that will come before them. I assure the Committee that the training issue is being taken very seriously, and that we will not bring the Bill into force until we are confident that the legal system is in a position to cope with the changes.
Amendment No. 60 would amend the definition in clause 7(5) of the term "legal proceedings", as used in clause 7(1)(b), by stating specifically that the term should include "any criminal proceedings". The amendment is unnecessary, because the wording of clause 7(5) already covers such proceedings. It uses the word "includes", and is therefore not—in answer to one of the questions asked by the hon. and learned Member for Harborough—an exhaustive definition. As "includes" is in the clause, we think that the matter is already covered. I hope that that deals with the first of his questions.
The vast majority of criminal proceedings will be caught directly by clause 7(5)(a), as they areproceedings brought by or at the instigation of a public authority".The very few private prosecutions that are undertaken will also be caught by clause 7(5)—as it is an inclusive definition, and such prosecutions would be regarded as legal proceedings. In such cases, the private prosecutor would not be a public authority, although the court, as a public authority, would be required to act not incompatibly with the convention rights. Therefore, Tesco, for example, would not become a public authority. The court itself will be required to take account of the convention rights.
If the hon. and learned Gentleman's concern is whether clause 7 covers criminal proceedings, I can assure him that it does. It will be possible for individuals to rely on their convention rights in criminal proceedings as in other proceedings.
I should make it clear also that the RSPCA—which the hon. and learned Member mentioned—will be performing a public act when that act has a statutory basis. Although it will be a matter for the court to decide whether it is behaving as a public authority, it may be doing so if it is acting on a basis conferred by statute. Tesco, for example, would not be acting as a public authority, although, as I said, the court must take account of the convention in reaching any decision.
In view of those comments, I invite the hon. and learned Gentleman to seek leave to withdraw amendment No. 47.
§ Mr. Garnier
I thank the Minister for that very helpful response to my inquiries, and I trust that we can proceed 1058 throughout today in such a manner. It will be of value to supermarket companies and similar bodies to read his comments on the public authority point. Supermarkets will not be deemed to be public authorities, unlike the court in which they bring private prosecutions.
The Minister correctly assessed my opinion of the amendments by pointing out that I did not spend much time on amendments Nos. 47, 48 and 49, but spent most of it on amendment No. 60.
In view of the Minister's reply, I beg to ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Mr. Garnier
I beg to move amendment No. 50, page 4, line 42, at end insert'or he can demonstrate that he is acting on behalf of a victim or potential victim of an unlawful act'.
The First Deputy Chairman
With this, it will be convenient to discuss the following amendments: No. 42, page 5, line 4, leave out lines 4 to 6 and insert—'(3) Nothing in subsection (1) shall prevent an applicant from bringing an application for judicial review provided that the court considers that he has a sufficient interest in the matter to which the application relates.'
No. 52, page 5, line 6, at end insert`or he can demonstrate that he is acting on behalf of a victim or potential victim of an unlawful act'.
No. 141, page 5, leave out lines 7 to 9 and insert'(4) Nothing in subsection (1) shall prevent an applicant from bringing a petition for judicial review in Scotland provided that the court considers that he has a sufficient interest in the matter to which the petition relates.'.
No. 53, page 5, line 9, at end insert'or he can demonstrate that he is acting on behalf of a victim or potential victim of an unlawful act'.
No. 43, page 5, line 14, leave out 'this section' and insert 'subsection (1)'.
§ Mr. Garnier
I hope that the Committee is now entering into a discussion that will be of wider interest, not only to the Minister and me but to other members of this very popular Committee. It is perhaps a pity that we are rather thinly attended today, as some of the matters that we will be debating are supremely important to the future of the United Kingdom constitution.
The Minister and I know each other quite well. We have travelled as far as the Falklands together in pursuit of knowledge of military affairs. We almost spent a night together in a tent on Salisbury plain, but that is another story. However, from my time spent with him, both in this Committee and on other occasions, I know that both he and I take the development of our constitution with great seriousness. Although we may differ on the way in which the Government are dealing with the constitution at the moment, we are men of good will and respect each other's views. However, we shall have more between us during the discussion that we are about to begin.
I shall speak to amendments Nos. 50, 52 and 53. I shall leave the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) to develop his own arguments in support of amendments Nos. 42, 141 and 1059 43, which were tabled by him and his right hon. and hon. Friends. I suspect that he will do it rather better than I could.
The right hon. Member and I share the desire to widen the clause to allow a rather more flexible approach to the question of who may bring proceedings under the Bill. When similar amendments were discussed in another place on 24 November 1997, the lead speech was made by Lord Lester of Herne Hill. Let me place on the record my gratitude for the way in which he expressed these matters in another place. I should also like to place on the record my thanks to Mr. Francis Bennion for the assistance that he has given me, although he may not realise it, and to my right hon. and learned Friend the Member for North-East Bedfordshire (Sir N. Lyell), who unfortunately cannot be here today.
If I should say anything that conflicts with the views of Lord Lester, my noble Friend the shadow Lord Chancellor, Lord Kingsland, my right hon. and learned Friend the Member for North—East Bedfordshire or Mr. Francis Bennion, that is my fault and not theirs. I do not wish anything that I say to be taken as a reflection of their views; none the less, I found all they have said and written in the recent past extremely helpful in developing my arguments in support of the amendments.
Let me briefly outline the amendments of the official Opposition before seeking to develop my submission in support of them. Amendment No. 50 invites the Committee to amend clause 7 by inserting at the end the words:or he can demonstrate that he is acting on behalf of a victim or potential victim of an unlawful act".That phrase fits in very neatly at the bottom of page 4, which sets out who may bring proceedings under the Bill.
Clause 7(1) reads:A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may—The clause adds the following words, which the right hon. Member for Caithness, Sutherland and Easter Ross and I jointly find too restricting:(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or(b) rely on the Convention right or rights concerned in any legal proceedings,but only if he is (or would be) a victim of the unlawful act".
We wish to add after that:or he can demonstrate that he is acting on behalf of the victim or potential victim of an unlawful act.
Amendment No. 52 would add the same words to subsection (3), which says:If the proceedings are brought on an application for judicial review, the applicant is to be taken to have a sufficient interest in relation to the unlawful act only if he is, or would be, a victim of that act.Amendment No. 53 would add the same words to the end of subsection (4), which deals with the equivalent procedure in the courts of Scotland. It says:If the proceedings are made by way of, a petition for judicial review in Scotland, the applicant shall be taken to have title and interest to sue in relation to the unlawful act only if he is, or would be, a victim of that act.1060 We want to liberalise the regime under which proceedings can be brought under the Act by persons other than the victim of the unlawful act complained of.
The amendments tabled by the right hon. Member for Caithness, Sutherland and Easter Ross broadly reflect those tabled by Lord Lester, as, to some extent, do the Conservative amendments. Lord Lester's amendments were designed to remove what he regarded asthe unnecessarily legalistic restrictions in Clause 7 on the standing"—
that is, the legal standing or the locus—needed to apply for judicial review where convention rights are at stake.He added:They are, I hope, in accordance with the Bill's philosophy; namely, that of seeking to confer collateral advantages rather than to undermine the principles of the Bill.
I should like to borrow Lord Lester's sentiments in support of the Conservative amendments. We hope that the Government agree that we are not trying to put words in the Bill that would destroy its effect or undermine its principle. In no sense should the amendments be seen as an attempt to wreck the clause, still less the Bill. I am glad to see the Minister nodding and accepting our good faith.
Lord Lester continued:There is a curious anomaly in the Bill as it stands. It is traditionally British in its main principles respecting both the English constitutional doctrine of parliamentary sovereignty and the need to provide effective British judicial remedies for breaches of convention rights. The Bill is also British in empowering all our courts and tribunals to interpret and apply the convention rather than to establish a special constitutional court. The Bill is British, too, in requiring our courts to take into account the European jurisprudence from Strasbourg but not to be ruled by it."—[Official Report, House of Lords, 24 November 1997; Vol. 583, c. 823.]
Clause 2(1) says:A court or tribunal determining a question which has arisen under this Act in connection with a Convention right must take into account—It does not say that UK courts must be bound by a decision, judgment, declaration or advisory opinion of the European Court of Human Rights. Under the Bill, we retain for our courts an ability to develop their own jurisprudence, although they will be guided by the judgments and so on of the European Court.(a) any judgment, decision, declaration or advisory opinion of the European Court of Human Rights".
Having said all that, the problem we see is that the clause—
§ Mr. John Bercow (Buckingham)
For the avoidance of doubt, will my hon. and learned Friend confirm that there is a substantial difference between a requirement to "take account of' and a requirement to be "guided by"? I do not wish to quibble with my hon. and learned Friend's use of language, which is always exemplary, but I should be grateful for that clarification on this occasion.
§ Mr. Garnier
One always has to be careful about loose language when dealing with complicated concepts of law. My hon. Friend the Member for Buckingham (Mr. Bercow), who is a man of huge intellectual capacity, need not be frightened of not being legally qualified. Anyone with a first-class degree from an English university deserves to be listened to with care. His point is, I hope, a good one. 1061 I am seeking to draw the Committee's attention to the provisions of clause 2(1). I do not want to go too far down that route, because, sadly, we moved on from that clause several days ago. My point is that English courts—I use the word "English" as shorthand for the United Kingdom—are required only to "take account". The Bill says that theymust take into account any—(a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights.That is what the law will say, because the likelihood is that the Bill will be enacted.
I talked about guidance. I do not know that there is a great deal of difference between the phrases "take into account" and "guidance". If my hon. Friend the Member for Buckingham thinks that there is, I will be happy to give way to him again. I do not want to get too hung up on that semantic discussion, because we have a certain amount to do in trying to persuade the Government of the cogency and good sense of our amendments, which I know that my hon. Friend will want to support with all the vigour at his command.
§ Mr. Garnier
My hon. Friend the Member for Solihull (Mr. Taylor) is right. Vigour is not a commodity of which my hon. Friend the Member for Buckingham is short.
I want the Government to explain why they have drafted clause 7 in such a way as to create an anomaly. Instead of relying on the well-developed public law concept—the judicial review concept—of legal standing for judicial review and other proceedings, the Bill seems to import a test of legal standing derived from the concept of a victim to be used by the European Court of Human Rights in interpreting and applying article 34 of the convention, as it will be when it is amended by the 11th protocol.
In the notes on clauses prepared by the Home Office or the Lord Chancellor's Department, the explanation of clause 7(3) suggests that the purpose of the sufficient interest test in judicial review proceedings is that an applicant can seek judicial review of the act of a public authority on the grounds that the act is unlawful under the Billonly if he is, or would be, a victim of that act.The notes on clauses also say:This means that the ability to apply for judicial review on convention grounds, which is narrower than for judicial review application, otherwise corresponds to the standing or locus test under Article 34 of the convention itself for bringing complaints to the European Court of Human Rights".Sadly, the notes on clauses do not explain the reasons for that, and the mischief that we perceive is not dealt with.
The Government seem to have narrowed the well-developed English public law and Scots judicial review concepts of sufficient interest, which were adopted by Parliament and developed by our courts.
It is not in the least controversial to say that the convention is a treaty. Domestic law requires our courts to construe a treaty in the same way as courts in other 1062 countries. As the right hon. Lord Browne-Wilkinson said in a speech before the Judicial Committee of the Privy Council, in the case "Re H and others (minors) (abduction: acquiescence)", which is reported in volume 2 of the 1997 All England reports:an international convention, expressed in different languages and intended to apply to a wide range of differing legal systems, cannot be construed differently in different jurisdictions. The convention must have the same meaning and effect under the laws of all contracting states.The Bill is confused on that point. It refers throughout to "the Convention rights" and defines those as the rights and fundamental freedoms set out in articles 2 to 12 and 14 of the convention,as read with articles 16 to 18.If the convention rights are to have the same meaning as that found by the Strasbourg Court, the cited articles must be read along with the entirety of the convention, not merely articles 16 to 18. Our courts will have to make sense of the specified articles.
I respectfully suggest that Government spokesmen on the Bill have constantly diverted questions about its legal meaning by saying that they must be left to the courts to decide. However, the courts cannot successfully operate in a vacuum. What are they to conclude when they are told that they must not consider the1 entire convention?
Those articles need to be read with the preamble, which invokes the universal declaration of human rights and explains the convention's purpose. They also need to be read with article 1, which demands:The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1",making it clear that it is the European states themselves—and no one else—which have the duty of obeying the obligations imposed by the convention.
The articles also need to be read with article 34, which the Minister will know used to be article 25, which states that the court may receive applicationsfrom any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in this Convention.The effect of that has been described by three of the leading academic lawyers on the European convention—Messrs Harris, O'Boyle and Warbrick—in their well-known textbook, "Law on the European Convention on Human Rights", published in 1995. On page 630, they say, as I am sure the Minister will be aware:While 'non-governmental organisations' and 'groups of individuals' are broad categories they do not cover, for example, bodies such as municipalities, other local government organisations or semi-state bodies.Even the word "person" in article 34 does not include one of those bodies, which therefore cannot object that the United Kingdom has infringed its rights.
Because the presumption from the wording of clause 1 of the Bill is that the specified articles are not to be read with the rest of the convention, it seems—at least to me—that our judges are meant to have a free hand in construing them. That is confirmed by clause 2, which requires a court applying a convention article to take into account rulings on its meaning given by the Strasbourg Court, without being bound by them. That is in line with the civil law, which has no doctrine of binding precedent. It permits allowance to be made for the margin of 1063 appreciation that is permitted under the convention jurisdiction. The Lord Chancellor said on that subject in the other place:Our courts must be free to develop human rights juris prudence by taking into account European judgments and decisions, but they must also be free to distinguish them and to move out in new directions in relation to the whole area of human rights".—[Official Report, House of Lords, 24 November 1997; Vol. 583, c. 835.]
We seem to be considering a free-standing Bill. Will the rights that it protects be exactly the same as the rights protected at Strasbourg? The answer, on that analysis, must be no. Will the Bill become a mirror-image Act? Who will be able to apply to our courts to have their rights protected? Not everyone is entitled to go to Strasbourg, so will the same exclusionary rules govern an application under the Bill?
If the Bill were intended to be a mirror image of the convention, one would expect clause 7 to be equivalent to article 34 of the convention, but we do not see that. Instead, clause 7(1) states—with one caveat—that any person with a claim will be entitled to pursue it. Person is used in its wide English law meaning to include all natural and artificial persons; it does not have the narrower meaning that is applicable to article 34.
The caveat is that the applicantis (or would be) a victim of the unlawful act.We are told in clause 7(6) what that means:a person is a victim … only if he would be a victim for the purposes of Article 34 of the Convention",which is not exactly helpful. We are finally brought back to article 34, but the position is not as clear as it could be.
The Government's notes on clauses say of clause 7(6):This attracts the Convention jurisprudence on 'victim'. In particular, the person must be directly affected by the act.The suspicion is that the talk of a victim is intended to exclude persons indirectly affected, such as interest groups, but that it does not have in mind the exclusion of directly affected persons of the wrong type, such as local authorities. That reading is borne out by the Lord Chancellor's remarks in the other place. He said:The wording of clause 7 therefore reflects the terms of the convention, which stipulates that petitions … will be ruled inadmissible unless the applicant is the victim of the alleged violation."—[Official Report, House of Lords, 24 November 1997; Vol. 583, c. 831.]For a certain answer to that, we may have to wait until some body such as a local authority tries—as no doubt one will-to bring a claim under the Bill. I hope that the Minister will be able to deal with that point.
Under the English judicial review system, as set out in section 31(3) of the Supreme Court Act 1981, the jurisdictional requirement for an applicant to apply for judicial review of administrative action is simply one of sufficient interest. That test of sufficient interest is included in the order 53, rule 3, of the rules of the Supreme Court. As I understand it, the test also applies in Scottish law, although the right hon. Member for Caithness, Sutherland and Easter Ross will no doubt tell us about that.
Our courts have wisely interpreted the test of sufficient interest to allow public interest groups—they are all well known to us—to bring cases in their own name on behalf 1064 of the class of people who are directly affected by laws and regulations. That has the advantage of enabling all the relevant matters at issue to be determined together and at an early stage to clarify whether there has been a misuse of public powers, including an abuse involving a violation of human rights.
§ Mr. Andrew Lansley (South Cambridgeshire)
I am listening with care to my hon. and learned Friend, who is explaining the amendments with great clarity, but I want to be sure that I understand him correctly. Does he agree that what is to occur will not in practice give a mirror image of what the European Court would do? It is part of the structure of the European Court that there should be a margin of appreciation on the application of convention rights inside each of the member states that are parties to the convention.
Is my hon. and learned Friend saying that courts in the United Kingdom should develop that margin of appreciation, and that that margin of appreciation will sometimes best be developed where public interest groups that have a sufficient interest are able to bring proceedings?
§ Mr. Garnier
My hon. Friend is exactly right. The position is even worse than he and I feared. The Bill as drafted leaves the public authority, or the UK Government, with no right of appeal to Strasbourg, whereas the citizen has such a right. There is inequality of access to Strasbourg. The problem will be made worse if the British courts create a jurisprudence defined by their understanding of the margin of appreciation which differs from the understanding handed down by Strasbourg, and there will be nothing that the public authority or the Government can do. Eventually, a series of conflicts will build up. [Interruption.]Let me put aside my bleeper, and switch off my Mandelsonian character development machine. I must not allow myself to be put off by Government propaganda.
I fear that a jurisprudential conflict will develop between Strasbourg and the English courts. We have heard that clause 2(1) does not require English courts to accept by rote the jurisprudence of Strasbourg. As I said a few weeks ago, there seems to be great potential for conflict between the courts and Parliament. I shall come later to the conflict between both Houses of Parliament and the Executive. We are lining up constitutional struggles of some importance.
§ Mr. Bercow
I have no doubt that my hon. Friend the Member for South Cambridgeshire (Mr. Lansley) has fully understood that exchange, but, to avoid doubt, may I establish whether my hon. and learned Friend is telling us that there are circumstances in which a public authority, having suffered an adverse judgment in the domestic courts, could ignore that judgment and, if criticised for doing so, could say that it should not be criticised because it had no right of appeal in Europe?
§ Mr. Garnier
I shall, if I may, avoid answering that question on the hoof.
We confront a series of collisions, which we all want to avoid. That is why I responded as I did to the previous intervention. My hon. Friend the Member for Buckingham ought to be aware of the danger. Under the judicial review 1065 proceedings available in the divisional court, a wide group of applicants are entitled to apply to demonstrate a proper and sufficient interest. Under clause 7, a whole host of interest groups—it does not matter whether my hon. Friend or I agree with their aims—will be denied access to the courts. Consequently, a great many of the disadvantaged in our society, who have until now been protected by those interest groups, will be denied access to the courts.
In the other place, the Lord Chancellor said that we should not worry about that, because he had no doubt that the courts would allow the individual victim to be assisted by interest groups. He also said that individual victims might be assisted not only by interest groups paying for lawyers to present their cases but by such groups being allowed to put in written briefs to the court. In response to an intervention from, I think, my noble Friend Lord Coleraine, he said that it might be possible for interest groups to make brief oral submissions.
In our submission—I hope that my hon. Friend the Member for Buckingham agrees—that is unnecessarily clumsy. If we want the convention, once introduced into British law, to do what the Government say that they want it to do and bring human rights home—I disagree with the underlying premise—we must build into the Bill sufficient machinery to allow the people whose rights will be trampled on to gain access to the courts to test the question.
§ Mr. Lansley
My hon. and learned Friend makes an interesting point. He will forgive my ignorance if I expose it in this question, but if, as proposed, only the victim of an unlawful act were unable to bring proceedings under clause 7, would that circumscribe the extent of the proceedings that the victim could bring? Under the construction proposed by our amendments, where a sufficient interest was proved by, for example, a public interest group, that group might be able to explore the full bounds of potential incompatibility between UK legislation and convention rights, rather than being circumscribed to something narrower.
§ Mr. Garnier
My hon. Friend puts his finger on the point. As drafted, the Bill could lead to an unnecessary multiplicity of cases. If interest groups such as Liberty or Justice back and present a case, they can not only deal with the case of the immediate victim but go beyond that and explain to the court the implications of the breach of the convention right involved. Mr. Jones is interested only in Mr. Jones's problem. In dealing with Mr. Jones's problem, the court will be strict to consider only his problem and not wander too widely into the broader issues. Groups such as Justice can come at a case with a far wider perspective and knowledge, and—although the court need not necessarily take account of it—they can do so with the human, intellectual and financial resources to ensure that every aspect of the case is dealt with properly and adequately.
§ Mr. Bercow
My hon. and learned Friend makes a powerful point. Is there not another argument to support his amendments? If an individual brought proceedings under clause 7, but passed away before they had commenced or before they were concluded, a wider 1066 category of persons would be needed to pursue the proceedings to a conclusion. Is that not another reason why these amendments are of the utmost importance?
§ Mr. Garnier
I heard my hon. Friend say sotto voce that that was a duff point. I trust that he will be able to explain to my hon. Friend the Member for Buckingham why he used such unkind language. The points made by my hon. Friend the Member for Buckingham are certainly worthy of consideration, and I am delighted that he is here to put them before the Committee.
I shall attempt to bring some finality to my remarks, at least on this subject, so that other Members can contribute. I know that the right hon. Member for Caithness, Sutherland and Easter Ross wishes to make some points on behalf of the Liberal Democrats, in addition to the ones that I have stolen from them.
I want to return to the reasonable and workable nature of the sufficient interest test as it has been developed by our courts, and look at the other side of the question, which is the somewhat obscure position that will be created if the European convention test of victim is imported for cases under clause 7, but not for other judicial review proceedings. It will then be necessary for our courts to have regard, not to our well-tried and tested case law on the sufficient interest test, but to a complex body of Strasbourg case law developed for the quite different purpose of interpreting a provision of the convention that will disappear next year, when protocol 11 brings into existence the new court with new procedures.
As Lord Lester said in Committee in the other place:The Bill deliberately excludes the procedural rules of the European Court of Human Rights which allow third party interventions by bodies such as the Post Office Engineering Union (in Malone), or MIND (in Ashingdane), or the International Press Institute (in Lingens), or Justice (in Monnell v. Morris), or Amnesty International …, or the Northern Ireland Standing Advisory Commission for Human Rights, Liberty, and the Committee on the Administration of Justice (in Brannigan and McBride), or the Society for the Protection of Unborn Children (in Open Door and Dublin Well Woman).It is well established that a public authority such as the EOC"—that is, the Equal Opportunities Commission—has no standing to bring a case as a victim under the convention. What that means is that the EOCor any other representative bodywill be prevented by clause 7 from intervening as an amicus curiae, or third party, to represent the wider public interest if they seek to rely on convention rights in any legal proceedings.I agree with Lord Lester. He said:that anomaly is highlighted by the fact that, under Clause 5, the Bill gives the Crown the right to intervene where a court is considering whether to make a declaration of incompatibility. Yet other public authorities or public interest organisations are to have no such right of third party intervention. I do not see any justification for placing the Government in that uniquely privileged position, depriving the courts of the benefit of other third party interventions."—[Official Report, House of Lords, 24 November 1997; Vol. 583, c. 825-26.]
The problem does not stop there. The existing Strasbourg jurisprudence on what constitutes a "victim" is not at all clear, and the Lord Chancellor did not give an answer of anything like the quality expected of a 1067 lawyer of his eminence. In effect, his answer consisted of, "I have said what I have said, and that will do." Why are the Government following European case law, rather than using the well-understood English statutory test of sufficient interest, when, as Lord Lester demonstrated, there is insufficient uniformity of view in Strasbourg about what constitutes a victim?
Will the Minister provide the Committee with a clear and, if not convincing, at least respectable explanation for the decision to exclude certain persons and to narrow the category of applicant before the court in cases under the Bill to persons described as victims of the unlawful act; and the decision not to allow, as they should, persons who can demonstrate that they areacting on behalf of a victim or potential victim of an unlawful act.to come before the court to argue, to explain and to reveal to the court the widest implications of the case?
§ Mr. John M. Taylor
I apologise for not being able to attend all the debate; I had commitments in the Committee Corridor. I am probably the least knowledgeable Member in the Chamber about the matters that we are debating.
If we are talking about rights of access to a judicial forum, it is important to have great certainty about who may be a party and who may initiate proceedings. I should like my hon. and learned Friend the Member for Harborough (Mr. Gamier) to tell me from the Opposition Dispatch Box whether he feels that there is enough definition or whether he thinks there is potential for aggrieved parties who should be heard before the appropriate tribunal to be excluded and not have the access that they should? Is my hon. and learned Friend satisfied? It is very likely that if he is satisfied, I shall be. If he is not satisfied, I shall return to the charge.
§ Mr. Garnier
I think that my hon. Friend may have provided me with a way out in responding to his intervention. He candidly admitted that he has not been able to attend the entire debate. It may well be that you, Mr. Martin, would explode if I were to repeat what I have said over the past half hour. I have only a moderate affection for the sound of my own voice. I am about to demonstrate that by resuming my place.
My hon. Friend was perfectly right to ask the question, and I hope that he will not think me offensive if I suggest that, if he reads tomorrow's Hansard, he may find an answer somewhere that deals with his point. His intervention will become all the more telling if we do not get a proper explanation from the Government about why they are not prepared to accept my amendment or the amendments of the right hon. Member for Caithness, Sutherland and Easter Ross. In my view, the Lord Chancellor failed to give an explanation. Having been rude to the Lord Chancellor, perhaps I should conclude my remarks. I know that the right hon. Member for Caithness, Sutherland and Easter Ross and others will be wishing to catch your eye, Mr. Martin.
§ Mr. Robert Maclennan (Caithness, Sutherland and Easter Ross)
I must begin by expressing my gratitude and appreciation to the hon. and learned Member for Harborough (Mr. Garnier) for his speech, not least for the fact that he openly stated, with due acknowledgement, 1068 that he was plumbing or drawing heavily on the arguments used by my noble Friend Lord Lester of Herne Hill in another place. As he has done so, he greatly simplifies my task.
The hon. and learned Gentleman was kind enough to imply that there was a penumbra of Liberal Democrat argumentation that had not been developed either in his speech or in that of my noble Friend. The Committee will be relieved to hear that that is not the case. It will not be necessary, as a result of what the hon. and learned Gentleman has said, for me to take anything like as long as he thought it right to do. I make no complaint about that, because I thought his points were very well taken.
The only risk in our treatment of this subject, which is the right to bring proceedings, and in following the close legal argumentation that the hon. and learned Gentleman deployed, is that the public might consider that there is simply an arcane lawyer's point at issue. I would wish to make the strong political point that the purpose of my amendments, and I believe that of the hon. and learned Gentleman, is to make an important public interest point. It is to ensure that the rights of the convention are readily available to all who may have suffered by having their rights ignored or flouted by a public authority. In seeking to determine issues. the courts should have in front of them the best possible arguments from the public authority and those who have a reasonable or, in the normal language of administrative law, sufficient interest in the issue before those courts.
I have tried to understand what lies behind the Government's strange departure from the normal British rules governing standing in administrative law cases. It is hard to understand, because the matter was not fully explained in another place in that important debate. As the hon. and learned Member for Harborough pointed out, this is a very British Bill. It seeks to offer British judicial remedies for breaches of convention rights. It seeks to allow the courts to consider European jurisprudence, but not to be governed by it. However, it allows public law concepts of the domestic laws of Scotland and England not to be the rule that will be applied here.
Clause 7(3) imports into our law a vague concept from the jurisprudence of the courts of Strasbourg. Anything that makes it more difficult to determine whether there is an interest is contrary to the Government's underlying intention, as I perceive it, to bring rights home and to provide British remedies for their infringement. One might speculate that the reason for using that concept is that the Government are afraid of the involvement of interest groups in these actions leading to a raft of test cases increasing the work of the courts where those interest groups perceive a possible public wrong and wish to have something done about it. In other words, they might seek to stir up apathy, to use the memorable words of Lord Whitelaw.
§ Mr. Bercow
I do not know whether the right hon. Gentleman's analysis of the Government's motives in drafting the Bill is correct, but does he, as a distinguished advocate, agree that, if the Government's objection is that they fear a proliferation of what he describes as test cases and of public interest group agitation, that is not a good reason for the Government to oppose the amendments? 1069 They appear to be saying that the outcome would be all too time-consuming, troublesome and costly, and they want none of it. That is not a very democratic attitude, is it?
§ Mr. Maclennan
The hon. Gentleman made what might have been, had he not spoken, the next paragraph of my speech. I am only too delighted on this occasion, as I was earlier, to acknowledge my debt to members of the official Opposition for making my case for me.
There is concern in the Government that, bearing in mind the difficulties faced by the legal aid fund and the uncertainty of what is opened up by this new and all-embracing law, they should be as cautious as possible in approaching these remedies.
I disclaim the compliment from the hon. Member for Buckingham (Mr. Bercow); I am not, in any sense, a great advocate. I am a barrister by training who has long ceased to practise, and I no longer view these matters with the practitioner's cast of mind. However, in my opinion, the risk is precisely the converse of that which seems to motivate the Government. The risk is that more actions will be taken by individuals, with or without the advice of the interested and informed interest groups that are capable of giving advice, and that from the Bill's enactment will flow a proliferation of litigation that might have been avoided had the full range of issues pertinent to the consideration of a specific case, such as those mentioned by the hon. and learned Member for Harborough, been deployed by an interested party.
§ Mr. John M. Taylor
The right hon. Gentleman is on the threshold of one of the most worrying aspects of modern litigation. Since Pepper v. Hart, no civil action is brought before all parliamentary stages of legislation have been minutely examined. Nowadays, it seems that no piece of litigation is complete until each side has reported the other to the Law Society. Now the right hon. Gentleman is giving us the prospect that no litigation will be complete until it has had its lap in Strasbourg, or, under this law, had that lap translated back into the UK, and it has had its human rights aspects duly examined. Are we, on a wide general front, on something of a slippery and expensive litigious slope?
§ Mr. Maclennan
I profoundly hope not, because part of the purpose of incorporating the convention in the Bill is to discourage activity that would give rise to a claim that a right had been infringed. Indeed, I would not expect that there would be a great number of violations of people's fundamental rights and freedoms in this country. I believe that our public authorities are alive to these issues. They are becoming more alive to them, and it is unlikely that they will lay themselves open to charges of having infringed fundamental rights and freedoms.
I would acknowledge this much, however. Possibly, in the early years, before the courts have come to terms with some of the bigger issues that arise, there may be many cases. A certain amount of attention is being given to the need to train our judges to manage those matters; money is spent on that.
§ Mr. Taylor
I am grateful to the right hon. Gentleman for giving way a second time. I admire the respect for our institutions that leads him to expect that there would not 1070 be many frivolous or vexatious cases. I admire his approach, and I wish that we lived in such a world. Does he agree that our recent experience of the sunburst of judicial review is not very comforting to his line of argument? It tends pretty much in the opposite direction. People will dispute matters with public authorities, and will waste no time in doing so; they will throw the kitchen sink at them.
§ Mr. Maclennan
I do not accept the hon. Gentleman's line of argument on that, and I would distinguish between the matters that have come under judicial review and matters that might come under review as a result of the Bill's passage. The breach of a fundamental right and freedom is not a small matter which may flow from wrong use of a discretionary power by an authority, which would currently be likely to be considered. Fundamental rights and freedoms are very substantial and visible. It is not easy to breach someone's fundamental right and freedom in the dark and without deliberation. I believe that, because of that element of deliberation, it will be anticipated where such conflicts may arise. I do not expect that there will be a large expansion in the work of the courts, certainly after the first few years of people, as it were, having a go.
It would be particularly advantageous if it were possible in those first years for interest groups such as Liberty—the National Council for Civil Liberties—and Justice, and organisations such as Victim Support, Amnesty International and the Northern Ireland Standing Advisory Commission on Human Rights to have the right to come forward as interested parties. A peculiarly unhappy result of what is proposed is that they might even be excluded from roles as amicus curiae.
Amendment No. 42 would not only reinstate the existing law of this country with regard to standing in judicial review matters; it is a conservative amendment which would ensure that the provisions of section 31(3) of the Supreme Court Act 1981 were maintained in the new circumstances and reinstate what I understood to be the Labour party's position on these matters before it took office. The consultation paper "Bringing Rights Home" intended that public interest cases should be taken by bodies such as those that I have mentioned.
The importance of that is, if anything, made greater by the Government's reluctance to acknowledge the case for a human rights commissioner, which is one departure from an agreement entered into by my party and the Labour party before the general election, and about which I am particularly regretful. The issue cannot be discussed during debates on the Bill because of the tight drafting of the long title, but it is germane to the importance of the amendment. If there is no human rights commissioner and it is necessary for individuals to establish that they are victims—not just that they have a substantial interest—I fear that we may find that, in bringing rights home, we have narrowed the safeguards, rather than widened them.
I hope that that is not a position to which the Government wish to stick for a long time, and that the months since the debate in November, to which the hon. and learned Member for Harborough referred, have passed with fruitful deliberation on what was said. If so, we shall hear tonight that the Government are prepared to reconsider. For reasons of administration of justice, it would be wise to do so. 1071 The policy behind what the Government are putting forward has never been made clear in any way. Legal argument about the importation of article 34 of the European convention on human rights into our rules has been deployed, but it seems strangely out of key with the approach to the procedural and substantive rules, which, in the rest of the Bill, rely heavily on the procedures and practices of our common law and statute law, not on the procedures of Strasbourg.
§ Mr. Lansley
The right hon. Gentleman has explored the reasoning behind the Government's approach. It may, in their terms, inhibit a number of public interest cases, or prevent what they might regard as an excessive number of such cases from being brought. As the Lord Chancellor said in the other place, the Government have not presented such an argument; their view is that a sufficient number of public interest cases would be brought on behalf of victims or by virtue of some separate public interest fund. To reinforce his argument, does he agree that one wonders what is their argument? The Government do not treat that as the argument. One wonders what their argument is.
§ 5 pm
§ Mr. Maclennan
The hon. and learned Member for Harborough mentioned the Lord Chancellor's statement that he did not envisage those interest groups being absent from the proceedings, because they might be there to assist individuals. My view is that they should be there in a different role—to assist the court. That, in itself, would help the proceedings. Of course, in some cases, if they took a case because they had a sufficient interest, they would be in adversarial proceedings. However, in the wider context of the settlement of an issue or a point of law, the exclusion of interest groups is most unfortunate, both for the individual whose case might be taken up and for our system of justice.
I do not want to speak for even half as long as the hon. and learned Member for Harborough. He made an excellent speech and I found it entirely possible to adopt his reasoning on points that I do not want to raise myself.
The speech by Lord Lester of Herne Hill was a classic of its kind. He deployed his arguments with great beauty and force. He referred to one or two matters that should be noted in this House. Of particular interest was his quotation from the fifth edition of the authoritative work "Judicial Review of Administrative Action". On the question of sufficient interest in our law, Lord Woolf and Professor Jeffrey Jowell's observations in their book effectively bring home what this is all about. They said that the sufficient interest testhas to receive a generous interpretation. It has to be treated as a broad and flexible test … A great variety of factors are capable of qualifying as sufficient interest. They are not confined to property or financial or other legal interests. They can include civic (or community), environmental and cultural interests"—
§ Mr. Maclennan
Not in the middle of a quotation.
The authors continued:
"The gravity of the issue which is the subject of the application is a factor taken into account in determining the outcome of questions of standing. The more serious issue at stake the less significance will be attached to arguments based on the applicant's alleged lack of standing."
§ Mr. Taylor
I apologise for interrupting the right hon. Gentleman in the middle of a quotation. He is the only Member of Parliament who is able to speak in paragraphs. The late Victor Borge was able to speak in paragraphs.
The right hon. Gentleman, with all his knowledge, seems still to take a pretty limited view of the number of people who will come and help themselves to this process. He courteously allowed me to intervene earlier on the issue of judicial review. Judicial review is a huge growth industry, and there is a distinct read across to these provisions. When I was in the Lord Chancellor's Department, the Lord Chancellor was judicially reviewed about three times by the Law Society. The Department for Education and Employment is frequently judicially reviewed.
I reckon that I have about 35 constituents, who write letters to me in green ink, who will burst through the door the moment the Bill has Royal Assent. I dare say that many other hon. Members have similar constituents. The point that has not been clarified is the number of people who will assail this process the moment they are given the chance. I do not think that the right hon. Gentleman has any sense of the scale.
§ Mr. Maclennan
I shall make three quick points in response to the hon. Gentleman, but perhaps I had better not give way again. First, I do not have many constituents who write to me in ink, never mind in green ink. Secondly, I am speaking in support of the amendment tabled by Conservative Members, who do not want people whose fundamental rights and freedoms have been denied to be deprived of a remedy in our domestic courts even if, as a result, the litigation dealt with by our courts increased.
Thirdly, we can merely speculate about the consequent volumetric increase in litigation. I have tried to distinguish between the position in the wide area of administration law, with the expansion of judicial review, and the position with regard to fundamental rights and freedoms. I do not believe that in this country—the hon. Member for Solihull (Mr. Taylor) has already agreed with me on this point—we live in a society in which fundamental rights and freedoms are breached with great regularity or frequency. At the beginning of the process, some people may believe that they are breached more often than occurs.
I rest my case on the argument that we should not narrow the right of access to the courts artificially, and in so doing utilise a procedural rule to bring about such an 1073 undesirable end that is as uncertain as are the interpretations of who, under Strasbourg jurisprudence, are victims.
§ Mr. Bercow
The right hon. Gentleman referred earlier to the way in which the criterion of sufficient interest in amendment No. 42 could be satisfied. Does he agree that, in seeking to bring a case, a family member would almost certainly satisfy the criterion of sufficient interest?
§ Mr. Maclennan
I suspect that that is so, but the issue which we must address is who would satisfy the test of victim under the Government's proposals. That is where the anxiety lies. How narrowly will this new procedural arrangement be interpreted?
I have made the main points that I wanted to make. I am rather eager to hear the Government's views, so I shall draw my remarks to a conclusion.
§ Mr. Leigh
The Committee owes a debt to my hon. and learned Friend the Member for Harborough (Mr. Gamier) for raising this matter, because it has shed light on a vital part of the Bill. Why do I say that? In our debates last week, I drew attention to an anomaly in the Bill. Clause 7(3) is specific about who can sue, whereas clause 6 is unclear about who can be sued. As I have previously argued, the Government have given insufficient attention to the definition of a "public body". As my hon. Friend the Member for Solihull (Mr. Taylor) has well argued in his interventions, that is vital to the bodies, many of which are small, quasi-public bodies, that are worried that they could be the subject of expensive litigation.
The argument is important. The Bill does not simply incorporate the convention into our law; it creates an entirely new Bill of Rights. We shall not simply bring the convention into our law and accept the jurisprudence of the European Court of Human Rights; rather, we shall effectively give British judges the right to build up a new volume of jurisprudence. Those are points that I have argued again and again, and they are the points that worry particular groups. That is why I oppose incorporation of the convention.
I have summarised the general worry; we are now exploring a strange dichotomy. I can understand why the Government are specific about who can sue, and I support their position this afternoon, for the reasons given by my hon. Friend the Member for Solihull. There is a grave danger that, unless we tie down carefully who can sue, we could open the floodgates to various campaigning organisations that want to use the Bill as a vehicle to sue quasi-religious or quasi-public bodies.
§ Mr. John M. Taylor
My hon. Friend and I clearly have similar thoughts on the matter. Will he be so good as to give me and the Committee the benefit of his reaction to the prospect of the proliferation of bodies such as the Consumers Association, the citizens advice bureaux, the Gas Consumers Council, or perhaps one of the more politically motivated law centres? One does not want to job back to Monday night in the House, but is my hon. Friend as frightened as I am about the possible proliferation of parties?
§ Mr. Leigh
These are probing amendments for the good reason that Conservative Members, coming from 1074 where we do in the political firmament, should be concerned about organisations—particularly organisations such as Liberty, which I am not aware is a natural Conservative organisation—which are pressing such amendments. Liberty and similar organisations are hopping mad with the Government for restricting so narrowly the definition of who can sue. Such campaigning organisations, many on the left with their own agenda, wanted the right to pick up an individual and run with that individual's case. That is what concerns us.
The Government's notes on clauses are correct, and sum up the situation quite well. They state:The ability to apply for judicial review on Convention grounds would thus be narrower than for judicial review applications otherwise, but would correspond to the standing or locus test under Article 34 of the Convention … for bringing complaints to the European Court of Human Rights.Some of my hon. Friends may be suspicious of the European Court of Human Rights, but the jurisprudence on moral, social or ethical matters is conservative; it comes from the continental tradition of conservative jurisprudence. Therefore, it is wise to base the test of who can sue on that narrow jurisprudence, which has built up during the past 50 years.
§ Mr. Maclennan
I am interested in the hon. Gentleman's conversion to things European. I want to be clear that his argument is that it is not conservative to prefer the British rules on standing to the European ones.
§ Mr. Leigh
Usually, I would prefer to adopt British jurisprudence, but I am worried by precisely the arguments raised by my hon. Friend the Member of Solihull this afternoon. If we start with a completely blank sheet of paper—if we say to our judges that they can start afresh—the many organisations that we know are out there waiting to sue pose an alarming prospect. That is why I want to limit the definition tightly.
§ Miss Julie Kirkbride (Bromsgrove)
Will my hon. Friend help someone who is not a lawyer and not as well versed as him in such arguments? I seem to recall that, when the homosexual couple who were below the age of 21 took their case to the European Court of Human Rights, they did so with the backing of Stonewall. Although they were individuals who were aggrieved by the situation and who felt that their rights were infringed, they nevertheless took their action with the backing of a well-known interest group.
Therefore, I should be grateful if my hon. Friend could explain to me, as I have not followed the matter as well as he has, why it is not the case, even under the Government's proposition, that any aggrieved individual can have their case backed—
The First Deputy Chairman
Order. Before the hon. Member for Gainsborough (Mr. Leigh) returns to the amendment, I should say that some interventions, not just that of the hon. Lady, have been far too long. There is no opportunity to make a speech during a speech.
§ Mr. Leigh
My hon. Friend makes a worthwhile point. We well know that, although individuals sue as victims, they are invariably backed by an organisation. My hon. 1075 Friend's point is precisely that made by the Lord Chancellor in the other place. He said that one should not be too worried about the restriction, because, although a victim will sue as an individual, he could be backed by an organisation. Having said that, at least there is some restriction; the weapon is not simply being handed on a plate to organisations such as Liberty. At least such organisations have to find a victim. They cannot just raise wide general propositions and bring them to our courts. That is what concerns us.
§ Mr. Bercow
I follow the thrust of my hon. Friend's argument. Is he therefore saying that only the aggrieved party—that is to say, for the purposes of the Bill, the victim—should be able to bring proceedings?
§ Mr. Leigh
That is precisely my position, and that is the Government's position. It grieves me to support the Government, but occasionally one has to do so in the interests of good law making. We should not be unduly party political about this point; we can have a perfectly civilised debate. If I have to support the Government, so be it.
The right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) supported the learned tome by Lord Woolf.
§ Mr. Leigh
Perhaps not by all of my hon. Friends.
The right hon. Gentleman quoted from the book the words:has to receive a generous interpretation. It has to be a broad and flexible test".It is precisely such words—"generous", "broad", "flexible"—that fill me with alarm. How far shall we extend matters if we adopt that wide definition of who can sue?
We know, because examples were given in the other place, of the organisations that are waiting to sue if an amendment such as this is passed—the Child Poverty Action Group, the Joint Council for the Welfare of Immigrants, the Equal Opportunities Commission and trade unions. Are my hon. Friends really sanguine about the prospect of such organisations—not victims; these are the precise organisations referred to in debates in the other place by people who were moving amendments such as this-being given carte blanche to sue anyone they like? I am certainly not sanguine.
§ Mr. Garnier
Would it assist my hon. Friend if we were to make it a requirement that someone who was not a direct victim within the context of clause 7(1), but who wanted to bring an action—an additional person, if I may describe him in that way—should seek the leave of the court before he was able to persist in those proceedings? My hon. Friend will appreciate that, for judicial review, one cannot appear before the divisional court without the leave of the court. Will my hon. Friend think about that suggestion, perhaps in the period before we reach Report?
§ Mr. Leigh
The Minister—on whose shoulders the matters rest rather more heavily than they rest on mine, 1076 sadly—will have heard that intervention and can ponder it. The suggestion seems to be a perfectly fair one and is perhaps a reasonable compromise. I have not had sufficient notice of it to make up my mind whether it would solve the problem. It may well do so.
§ Mr. Bercow
I am sorry to interrupt my hon. Friend so soon after my previous intervention. He is arguing a rigorous case in favour of allowing only the victim to bring proceedings. However, as he is also an extraordinarily strong supporter of the family-in fact, a supporter without equal in the Committee-would he be prepared to concede that a family member might be considered to have a sufficient interest in a case to satisfy the sufficient interest criterion in amendment No. 50?
§ Mr. Leigh
Yes; that is a fair point. I see no reason why, if there is genuine outrage—which, in the context of this week, may not be a particularly good word to use; it is one of those rather good old-fashioned English words that seems to have been taken over in an unpleasant way—in such cases, a family member should not be allowed to sue. It is a fair point, which I accept.
§ Mr. Lansley
If not only victims, but organisations, were able to bring actions, does my hon. Friend agree that not only the organisations that he mentioned, but other organisations, could use convention rights-especially in pursuance of article 8, on the right to respect for private and family life-in the United Kingdom jurisdiction, perhaps to bring cases to protect family life?
§ Mr. Leigh
That may be. One must not fall into the trap—as I perhaps naturally tend to do, for which I apologise—of assuming that all the organisations that will be queueing up to sue under the provisions will be left-leaning ones. I accept that very conservative, pro-family organisations could do the same.
In moving similar amendments in the other place, Lord Lester said:It will then become necessary for our courts to have regard not to our well tried and tested case law and the sufficient interest test, but to a complex body of Strasbourg case law developed for the quite different purpose of interpreting a provision of the convention".—[Official Report, House of Lords, 24 November 1997; Vol. 1712, c. 825.]Although he seemed to think that that view was mistaken, I think that he has put his finger on the point. It is wise for us to base our jurisprudence on the convention—which was the purport of amendments that I spoke to last week.
Lord Lester also said that he felt that the Equal Opportunities Commission or the Fair Employment Commission would not be able to move an action. The Minister may want to comment on that view. However, I would not be filled with particular alarm if those bodies could not themselves move an action, but had to rely on a victim to do so.
I should like to quote one case, which was referred to also in the other place, to illustrate the point. The case of Open Door and Dublin Well Women v. Ireland turned on the wish of the Irish courts, Irish Government and Irish people to preserve strong laws on abortion. The European Court of Human Rights considered that women of child-bearing age could claim to be victims as they 1077 belonged to a class of women that might be adversely affected by the restrictions. So, in that case, the court drew fairly widely the class of those who might be able to sue.
Another interesting case concerned the then Harriet Harman—who is now the Secretary of State for Social Security—when she was working for a civil liberties organisation.
§ Mr. Leigh
Yes, but I cannot call her Harriet Harman in Committee. In that case, it was ruled that David Leigh, the journalist concerned, could complain, but that the newspaper companies could not. In that case, the European Court drew the definition quite narrowly.
The Lord Chancellor is not someone with whom I tend to agree on all cases. However, I thought that in his summing up of the debate in the other place, his words were wise. Moreover, we should observe his words with particular care, as he is the oracle for these purposes—although he cannot participate in our debate, this is primarily his Bill. He said:The purpose of the Bill is to give greater effect in our domestic law to the convention rights. It is in keeping with this approach that persons should be able to rely on the convention rights before our domestic courts in precisely the same circumstances as they can rely upon them before the Strasbourg institutions. The wording of Clause 7 therefore reflects the terms of the convention".
Our debate today is not about whether we want to incorporate the convention. The Government and the House have decided that matter. However, surely we want to be rigorous in incorporating it. If we want to incorporate the convention, that is what we should seek to do. We should not try to create an entirely new class of potential victims. As my hon. Friend the Member for Bromsgrove (Miss Kirkbride) said, the Lord Chancellor confirmed that interest groups would still be able to provide assistance.
I was worried about one aspect of the Lord Chancellor's comments, and I should be grateful for the Minister' s comments on it. The Lord Chancellor said that he wasgiving serious consideration to Sir Peter Middleton's proposal that there should be a separate fund for public interest cases, including those involving convention rights."—[Official Report, House of Lords, 24 November 1997; Vol. 1712, c. 830-31.]Why should public moneys be involved in supporting groups that may or may not have a grievance? Why should they be supported by public funds? Although I may have misunderstood the point, it is nevertheless important.
I hope that the Committee thinks that I have made an at least arguable case, which can I summarise by quoting Liberty. It stated:Despite the suggestion in the earlier Labour Party consultation paper Bringing Rights Home that the rules of standing might be widened (or at least maintained as they are), the Government proposes to reduce the scope of standing to bring proceedings invoking the European Convention. We believe that there is no justification for such a retrograde step and that it is essential that statutory bodies such as the EOC, and NGOs, continue to be able to bring proceedings in the circumstances already established by the High Court. Such organisations can play a vital role in bringing matters of important public interest before the courts. The proposals would mean that an organisation such as the EOC would have standing to bring proceedings in which domestic and/or European Community law was invoked, but not if the Convention were invoked. That would be a nonsensical situation.1078 That was Liberty's view. I hope that my hon. Friends, having heard that view, will take precisely the opposite view. I hope that, like me, they believe that—although the Government have fallen down in their duty of restricting or defining very carefully what constitutes a public body in clause 6—in clause 7, the Government have taken the right and firm view that only a victim and not groups seeking self-publicity may sue. I do not know why Ministers have taken that view, although I suspect it was because they were worried about the number of cases that might come before the courts.
§ Mr. Lansley
Although I am not a lawyer, I support amendment No. 50, moved by my hon. and learned Friend the Member for Harborough (Mr. Gamier), and amendment No. 42, which was spoken to so well by the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan).
I have listened with interest to this debate—which, helpfully, has been accessible to non-lawyers—and, unlike my hon. Friend the Member for Gainsborough (Mr. Leigh), have been persuaded of the merits of making this group of amendments. It might be helpful if I explain why. Unless my hon. and learned Friend tells me otherwise, I have construed them not as probing amendments, but as substantive ones that would improve the Bill. They have given us a helpful opportunity to discuss some important issues. I shall not delay the Committee long, as I know that others wish to hear the Minister's reply.
Like many of my hon. Friends, I start from the standpoint that we would not necessarily have sought to incorporate the European convention into British law. As the Bill does so, however, what should it comprise? It has always been a matter of balance between the risk that incorporation would lead to interference with and frustration of the intentions of Parliament, and hence the reduction of our customary form of parliamentary sovereignty, and, on the other hand, the potential benefit that it would strengthen the ability of individuals and non-governmental organisations to take action against arbitrary, unreasonable, procedurally unfair or disproportionate action by the state or public authorities. The Bill as drafted, which restricts the rights of action to victims alone, runs the risk of not striking the right balance, and therefore not exploiting to the full the benefit that may be derived from the incorporation of convention rights.
My hon. Friend the Member for Gainsborough was generous enough to concede that, whatever our particular political views, hon. Members can envisage circumstances in which organisations that are not necessarily themselves the victim of an act might none the less seek to use the convention rights incorporated in the legislation to pursue action against what they regard as arbitrary or unreasonable acts by public authorities. However, my hon. Friend appeared to be arguing that confining the rights of action to victims will minimise the extent to which actions will be brought that frustrate the intentions of Parliament and give rise to convention-led, judge-made law rather than Parliament-laid law.
I do not agree. The right hon. Member for Caithness, Sutherland and Easter Ross was right to say that it is simply a question whether such cases will be brought in a more substantive way in the first instance, embracing 1079 the range of public policy issues that arise, or whether there will a large number of cases relating to the narrow circumstances of individual victims.
I shall not re-run the discussion that I had with my hon. and learned Friend the Member for Harborough, but it is clear that, if the legislation is confined to victims, there will be more and narrower cases, probably over exactly the same time scale. Organisations will use a range of cases in order to achieve the same effect, but they will do so in relation to particular victims. I find that an undesirable way of proceeding.
As the objective is to secure the compatibility of UK legislation with convention rights, it may be better to do so using particular instances but elaborating their public policy implications, rather than resting upon what may be a rather haphazard and arbitrary selection of cases relating to specific victims which may proceed through a series of intermediate stages, and the incompatibilities that are exposed may not cover all the implications and potential difficulties.
For those reasons, the legislation should go beyond the victims themselves. The amendments seem to work on two levels. My hon. and learned Friend's amendments incorporate what appear to be the Government's intentions. In another place, the Lord Chancellor seemed to suggest that it was the Government's belief that various organisations would assist victims of unlawful acts in bringing cases. The amendments seek only to make explicit that which the Government regard as implicit-that bodies should be able to act on behalf of and not simply assist victims.
I understand that there is a difference of substance before the courts, but if the Government's intention is not to frustrate bodies bringing cases in respect of victims of unlawful acts, why not allow them to act on behalf of a victim of an unlawful act, rather than simply assisting, as the Government seem to imply?
The amendments in the names of the right hon. Member for Caithness, Sutherland and Easter Ross and his right hon. and hon. Friends go further. They seek to extend the rights of action beyond victims to all those with sufficient interest. I shall not elaborate on the arguments, as they were well presented by my hon. and learned Friend the Member for Harborough.
The right hon. Member for Caithness, Sutherland and Easter Ross raised a question to which the Government have to respond. Why are they sticking on this point? It is perfectly clear that they do not intend to strengthen the hand of public authorities and limit the circumstances in which incompatibilities between UK law and the European convention are exposed. That would be contrary to their intentions. Presumably they want convention rights incorporated into UK legislation. That is the purpose of the Bill. If public interest bodies that are not necessarily themselves victims of an unlawful act can demonstrate to a court that there is incompatibility, why should the Government seek to prevent that? If that is not the reason, what is it?
My hon. Friend the Member for Gainsborough put his finger on it when he quoted the Lord Chancellor saying that the Government wanted to bring into UK legislation precisely the same circumstances as apply when a case is presented to the European Court of Human Rights. It 1080 is perfectly clear from the debate that precisely the same circumstances will not do. There is a need not only to provide an opportunity for British courts to incorporate European convention rights, but to establish a margin of appreciation in respect of UK legislation. The British courts would be assisted in establishing that margin of appreciation by virtue of public interest actions being brought by bodies other than the victims.
In addition, there is a body of jurisprudence relating to sufficient interest that will make clearer and more helpfully available to courts a basis upon which to determine who ought to have rights of audience. No one would suggest allowing excessive or frivolous cases to be brought. All the normal and reasonable tests would apply, and a party would have to obtain the leave of the court in order to bring a sufficient interest case. Such a case would embrace not only all those who were victims of unlawful acts, but those who could assist the Government in their intentions, and secure clarification of where there might be incompatibilities.
§ Mr. John Burnett (Torridge and West Devon)
Does the hon. Gentleman believe that, after an initial significant increase in litigation, the incidence of litigation will decrease once the matters had settled down, and that judges will be considerably constrained in giving leave to take judicial review proceedings by precedent and the fact that there had been a greater body of litigation previously?
§ Mr. Lansley
The hon. Gentleman raises an interesting point. In the first instance, there must of necessity be a number of cases that have not been brought because of the procedural difficulties involved in taking a case to the European court and the relative ease—nothing is easy in these terms—of bringing a case before the UK courts, so there is likely to be more litigation to start with. I hope that the hon. Gentleman is right to suggest that the number of cases will settle down, but bearing in mind the exchange between my hon. Friend the Member for Solihull (Mr. Taylor) and the right hon. Member for Caithness, Sutherland and Easter Ross, it is likely that it will not settle at a low level. A good deal of litigation may follow.
The right hon. Member for Caithness, Sutherland and Easter Ross said that breaches of fundamental rights might be relatively rare. He may be right, but I do not think that it works like that. The cases brought will not go to the heart of the fundamental right asserted in the convention, but will work at the boundaries. The main issue will be not whether the right to freedom is to be transgressed fundamentally, but what the boundary of that right is in relation to public authorities. That is a shifting boundary, which will be subject to a lot of litigation.
The Government's proposal will result in more cases, because, to pursue the point of public policy, one has to keep finding the particular circumstances in which victims of unlawful acts can be used as a basis for securing a declaration of incompatibility. Beyond that, because some cases involving victims of unlawful acts will be rooted in particular circumstances rather than acting on the basis of a public interest group trying to secure a declaration of incompatibility on public policy grounds, we may find that the merits of the case become meshed with the extent to which incompatibility exists.
That may lead to a plethora of cases that argue two ways on public policy and may go different ways according to the public policy implications drawn from 1081 cases decided on their merits, rather than public policy cases. As my hon. Friend the Member for Gainsborough said, there is a risk with the amendments that interference with the will of Parliament will go too far in the first instance, but we shall get to the heart of the Government's aim of securing more definitive judgments on incompatibility earlier rather than going through what may turn out to be a haphazard, lengthy and tortuous series of litigation to arrive at the same point.
On that basis, and having listened to the debate, I strongly support the Conservative and Liberal Democrat amendments.
§ Mr. John M. Taylor
The right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) spoke, in a good-natured leg pull, about the unexpected enthusiasm of my hon. Friend the Member for Gainsborough (Mr. Leigh) for certain European matters. My hon. Friend did not rise to that, which is typical of the dignity that he has brought to the debate, but I should like to comment on it in the same spirit. I am quite a high-mileage politician, and one of the few people to have been a directly elected Member of the European Parliament—I was elected in the first direct elections and served there between 1979 and 1984—and a delegate to the parliamentary Assembly of the Council of Europe, which is the forum that acts as the political custodian of the European convention on human rights.
My hon. Friend the Member for Gainsborough and I have misgivings about many things that emanate from the treaty of Rome, which is the root treaty of the European Union, and subsequent treaties, as well as the various institutions that attend those treaties—the European Commission, the European Parliament and the Council of Ministers.
§ The Chairman of Ways and Means (Sir Alan Haselhurst)
Order. The hon. Gentleman is dilating somewhat too far from the kernel of the matter that we are discussing.
§ Mr. Taylor
I had hoped that I might have some sympathy from you, Sir Alan, in attempting to distinguish between the parliamentary Assembly of the Council of Europe and the European Parliament. I shall dwell no longer on the issue, save to say that those of us who are acquainted with the institutions know that they are as different as chalk and cheese.
I hope that you will find me in order, Sir Alan, if I speak about parties who can bring proceedings. I face a problem that I shall have to think hard about before Report stage. I share the great anxiety of other Conservative Members that the number of qualifying parties and participants may proliferate. There may be all kinds of opportunistic petitioning of the English courts by virtue of what will then be the Human Rights Act 1998.
My hon. Friend the Member for Gainsborough mentioned various potential candidate bodies that would love to become petitioners in the process. In an intervention, I suggested the Consumers Association, the Gas Consumers Council, citizens advice bureaux and law centres. We all know of the generic category that might be a multitude. The good intention behind the convention, and domesticating it into English law, might be soured 1082 and wrecked by the size of the clamouring queue of those who want to bring their cases and causes. I want the most restrictive interpretation possible of who can petition.
On the other hand—this is an honest anomaly—there has been a recent development in English jurisprudence to de-restrict rights of audience. Parties other than barristers in higher courts, and barristers and solicitors in lower courts, have been enabled to have rights of audience. Patent practitioners and accountants can go before tax tribunals. Citizens advice bureaux are regular representers—and good ones—before our county courts for people with causes and grievances. The concept of the Mackenzie friend has also developed. There has been a domestic drift towards liberalising a person's right to have someone with them before a judicial process.
My hon. Friend the Member for Buckingham (Mr. Bercow) put it to my hon. Friend the Member for Gainsborough, who is a particular champion of the rights of the family, that, in an appropriate case, a family member might seek to represent an injured party before a court. I believe that my hon. Friend the Member for Gainsborough agreed that that might be appropriate. Examples can be found further back in English law of people who lack legal capacity—by minority or through some unfortunate affliction—being represented by a parent, a guardian or a receiver in the court of protection. I hope that I am using the right term of art—I think I am—but in any case I trust that my meaning is clear: there is a culture of allowing people to be represented by others.
I am finding it difficult to reconcile the two strands. I do not know whether any of my hon. Friends can help me with that at this early stage, or whether I will have to reflect on this between now and Report. For reasons that I have made clear to the point of labouring them, I do not want this process cluttered with all sorts of putative petitioners, representatives or persons who claim an interest. However, I am entirely sympathetic to the long and properly established culture that those who may be found to be at a disadvantage in the daunting circumstances of presenting a case in the court of law should be properly accompanied lest they be at a disadvantage for that single reason.
In the legal profession, various figures of speech have been used over time. For example, the term "parity of firepower" and similar terms are used to try to show that one party to the proceedings does not have an excessive advantage and the other is not excessively daunted. An attempt is made to find some equivalence, because, in that way, it has been thought that a fairer outcome is more likely.
I have developed other points courtesy of other right hon. and hon. Members who have been good enough to allow me to intervene on them. I am glad to have had an opportunity to do so, and I am glad to have been able to develop these further remarks. I end as I began.
There is here discerned a problem that needs to be addressed. There must be some sort of reconciliation between the proper desire to stop this process being swamped and the proper desire to ensure that disadvantaged members of society—disadvantaged in some sense of the word—should have assistance and representation properly to make their case. That reconciliation is not clear to me now, but I shall be thinking about it carefully. If the Minister would care to mention that aspect in his reply, I should be grateful to him.
§ Mr. Mike O'Brien
I accept the good offices of the hon. and learned Member for Harborough (Mr. Gamier) who said that his amendments seek to enhance and clarify the Bill. I also accept the good offices of the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan), who has also supported the Bill during its passage through the House. He has sought to enhance the Bill in ways that the Government have not sought, but his intention has been to make it more effective. The Government's view is that his proposals may not have made the Bill more effective, but there is a genuine wish to get this one right.
The six amendments are concerned with who can bring proceedings under clause 7. Amendments Nos. 42, 43 and 141, which were tabled by the Liberal Democrats, focus specifically on judicial review proceedings. They would enable a person to bring proceedings under the Bill against a public authority on application for judicial review if the court considered that he had a sufficient interest—that is, they would enable persons who are not the victim or potential victim of an unlawful act to bring cases under the Bill. The most obvious effect of the amendments would be to open the way for interest groups to bring proceedings on application for judicial review.
The issue was debated at great length in another place, and has been discussed at great length today. I understand the reasons for tabling the amendments, but the concerns about the implications of applying the victim test are misplaced. The approach taken in clause 7 is the best way to bring rights home.
The purpose of the Bill is to give effect in our domestic law to the convention rights. It is in keeping with that approach that people should be able to rely on those rights before our courts in the same circumstances as they can rely on them before the Strasbourg institutions. Clause 7 accordingly seeks to mirror the approach taken by Strasbourg—reliance on the convention rights is restricted to victims or potential victims of unlawful acts, and the definition of a victim for this purpose is tied to article 34 of the convention as amended by the 1 1 th protocol. I will expand on that further in a moment.
Our approach seems to be wholly justifiable. I acknowledge that, as a consequence, a narrower test will be applied for bringing applications by judicial review on convention grounds than in applications for judicial review on other grounds. However, interest groups will still be able to provide assistance to victims who bring cases under the Bill, including the filing of amicus briefs. Interest groups will also be able to bring cases directly where they are victims of an unlawful act.
I do not believe that the different tests for convention and non-convention cases will cause undue difficulty for the courts, or prevent interest groups from helping individuals who are victims of unlawful acts.
Amendments Nos. 50, 52 and 53, tabled by the Opposition, seemto have a somewhat similar intention, which is to expand the number of possible litigants. The hon. and learned Member for Harborough seems to have had his arguments challenged effectively by the hon. Member for Solihull (Mr. Taylor), who was sometimes 1084 helpful and sometimes not so helpful. He made very good points. The hon. Member for Gainsborough (Mr. Leigh) also made some very able points. I shall give the official line.
First, the amendments expand the category of people who can bring cases under all types of proceedings in clause 7, not only those on application for judicial review. Secondly, they do not adopt the existing "sufficient interest" test, but seem to introduce a new requirement that a person wishing to bring proceedings would have to meet, which is that he is actingon behalf of a victim or potential victim of an unlawful act.
The amendments accordingly require that there must be a victim of an alleged unlawful act. They may be seen as a compromise between the Strasbourg test and the sufficient interest test—seeking to exclude the possibility of academic challenges while still allowing interest groups to bring cases themselves when they are not the victim of the act being challenged. If a group is genuinely acting on behalf of a person, the proceedings can perfectly well be brought in that person's name. As I have said, the Bill does not prevent interest groups from providing assistance to a victim once a case is brought.
The hon. Member for Gainsborough referred to Sir Peter Middleton's proposal. On the question of individuals having access to the courts, the Lord Chancellor's Department issued a paper in March on the first stage of our proposals for reviewing legal aid. We intend to develop a way of supporting certain cases that have significant wider public interest, but which might otherwise not be brought. One definition of public interest that we have in mind includes cases involving challenges to the acts or omissions of public bodies, including breaches of convention rights.
§ Mr. William Cash (Stone)
The Minister is touching on a subject that I have raised many times. I have suggested that, if one is trying to find out what sort of cases should qualify for public funds of that kind, there is a strong case for applying to a judge for a certificate of public interest in order to ensure that the parameters are properly identified and we know what is and is not important. Is that something which the Minister is contemplating?
§ Mr. O'Brien
It would be wrong at this stage for me to prejudge the outcome of an on-going consultation. The hon. Gentleman's views on these matters are well known; he has expressed them before. No doubt, in due course, the Lord Chancellor's Department will be able to take account of them. There are certainly some concerns about the way in which legal aid has been granted in some cases. We need to ensure that we get this right, and there is still quite a long way to go before we do.
It is important to give examples in connection with the victim requirement, and I will consider some in due course. By virtue of clause 2, our courts must take account of any relevant Strasbourg jurisprudence, whether more expansive or not. They will decide how best to use that in the circumstances of the case before them.
The hon. and learned Member for Harborough suggested that the reference to the convention rights in clause 1 is inadequate because it does not refer to the relevant article on victims—article 34. In fact, we pick up 1085 that article, as I think the hon. Gentleman mentioned, in clause 7(6), which defines a victim for the purposes of that clause.
The hon. Gentleman also suggested that reference to clause 7(6) and article 34 is not helpful. I do not understand why. It is clear that we are appropriating the text of article 34 and the jurisprudence that goes with it. The intention is that a victim under the Bill should be in the same position as a victim in Strasbourg. A local authority cannot be a victim under clause 7, because it cannot be a victim in Strasbourg under current Strasbourg jurisprudence.
On the definition, the convention provides:The Commission may receive petitions … from any person, non-governmental organisation or group of individuals claiming to be a victim of a violation by one of the High Contracting Parties of the rights set forth in this Convention".
Applying the victim requirement, the basic approach of the Commission and the Court has been to require that the applicant must claim to be directly affected in some way by the matter complained of. In some cases, they have interpreted fairly flexibly the requirement for the applicant to be directly affected, although the jurisprudence on the issue is not always entirely consistent. The victim requirement was, for example, applied restrictively in a series of sado-masochist cases, in which the Commission considered that applications from persons claiming to indulge in certain acts that were prohibited by law did not satisfy the victim test, because, at that stage, there had been no interference by the police or prosecuting authorities in what they were doing.
There are other examples of a more expansive approach and it is important to put some before the House—indeed, the hon. Member for Gainsborough has already cited some. Individuals can sometimes complain of a particular practice in the absence of a measure of implementation if they run the risk of being directly affected by it. For example, children attending a school where corporal punishment was practised have been treated by the Commission as having a direct and immediate personal interest in complaining about such a punishment, even though they had not been punished. That was in the case of Campbell and Cosans v. UK in 1982.
The Court and Commission have shown a readiness to accept that the category of persons affected by a particular measure—and accordingly the number of potential victims—may be broad. The hon. Member for Gainsborough has referred to the case of Open Door and Dublin Well Woman v. Ireland in 1992, in which the Irish Supreme Court had granted an injunction preventing the provision of information regarding abortion facilities outside Ireland. The Commission and Court considered that women of child-bearing age could claim to be victims of the injunction, as they belonged to a class of women that might have been adversely affected by the restriction.
Applications have been allowed not only by the person immediately affected—sometimes referred to as the direct victim—but by indirect victims. Where there has been an alleged violation of the right to life and the direct victim is dead, for example, close relatives of the deceased can be treated as victims on the basis that they were indirectly affected by the alleged violation.
1086 A number of hon. Members have referred to family members. Obviously, they can be victims in appropriate circumstances. For example, a decision to deport someone might allow the family of the person to claim to be a victim of a violation of article 8—the right to respect for family life. The hon. Member for Solihull also sought confirmation that guardians ad litem and so forth would still have the right to behave as they would in the normal course of events in legal proceedings. I can confirm that we have no intention of restricting guardians ad litem or others who could normally undertake cases from doing so.
Likewise, a case can be brought on behalf of a dead victim by his or her family or relatives. The best known case, of which we have all heard, is the "Death on the Rock" case, brought on behalf of a dead IRA terrorist shot in Gibraltar. That is the sort of area that we are considering. A person may be able to claim that he or she is directly affected as a consequence of a violation of the rights of someone else. Where complaints are brought by persons threatened by deportation, that may arise.
The right hon. Member for Caithness, Sutherland and Easter Ross talked about allowing interest groups to assist the court. The difficulty is that the question arises: if such groups are to have that right, how many of them will claim that they want to participate in a court proceeding? Under the provisions of the human rights convention, many groups may feel that they have an interest in a particular issue and wish to assist the court. We are talking not only of Liberty, as there are a large number of different groups.
For example, the right to life could produce a series of litigation cases, which might involve many interest groups that might want to assist the court. Interest groups, such as professional associations and NGOs, can bring an application in Strasbourg only if they can demonstrate that they themselves are victims of a breach—that is, that they are in some way affected by the measure complained of. It is not enough that the actual victim, whether a member of the organisation or not, consents to them acting on his behalf.
In B v. the UK, both Mrs. B and the Society for the Protection of the Unborn Child brought an application complaining of the way in which the law affected electoral expenses. The Commission ruled the application by SPUC inadmissible because it was not directly affected by the law—only Mrs. B had been prosecuted. On the other hand, in Council of Civil Service Unions v. the UK, the Commission accepted that the CCSU was itself a victim of the GCHQ ban and could therefore bring an application, although it was rejected on different grounds. An NGO may represent its members in certain contexts and, in that case, it needs to identify them and produce the evidence of authority. In such circumstances, the NGO does not, however, thereby become a party itself.
Our courts will develop their own jurisprudence on the issue, taking account of Strasbourg cases and the Strasbourg jurisprudence. As a Government, our aim is to grant access to victims. It is not to create opportunities to allow interest groups from SPUC to Liberty—in which I must declare an interest because I am a member—to venture into frolics of their own in the courts. The aim is to confer access to rights, not to license interest groups to clog up the courts with test cases, which will delay victims' access to the courts. There is nothing 1087 undemocratic about conferring rights on victims, rather than interest groups that are non-victims. Interest groups can always support victims, and that is enough.
The right hon. Member for Caithness, Sutherland and Easter Ross said that he was not persuaded about what he called the volumetric increase in litigation. He said that he did not believe that, after an initial period, we needed to worry about it in the long term. The Government must be cautious and concerned about that sort of thing. They must be wary to ensure that they protect the access of victims to the courts.
§ Mr. Maclennan
Is not the protection against what the hon. Gentleman called frolicsome interventions by interest groups the discretionary power of the court itself in judicial review cases simply to deem that there is not a sufficient interest, and to judge that matter in a way that would enable the court to decide whether it would be advancing the causes of justice to allow particular groups to be there?
§ Mr. O'Brien
We do not want to create a situation in which the court has to decide what is in the broad public interest in every case. We would rather ensure that, as a House, we had accepted our responsibility to give the court clear laws by which it can guide its decisions. That means stating the basis on which we wish cases to be brought, which is that there is a real victim with real problems, which must be resolved by a court. The court must be given clear guidance.
§ Mr. Cash
That brings me back to the point I made earlier. The more that this argument develops, the more I feel that there is a serious case for a separate procedure whereby, before a case is brought, a person can go a judge and say, "This is the case." If the judge adjudicates that the case is a matter of public interest, the case will go ahead, which will avoid an enormous amount of wrangling afterwards about whether the court should have dealt with the case on a discretionary basis.
§ Mr. O'Brien
The danger of the hon. Gentleman's proposal is that he seems to be suggesting the creation of a further step in the procedure beyond the ordinary leave provisions of the divisional court in judicial review cases—it is almost as though, to secure legal aid, the case would have to be approved by the judge. Obtaining legal aid can already take a long time—in civil cases, at least—but the hon. Gentleman seems to want to erect another hurdle, which would delay the whole process and clog up our legal system. However, whether there should be some public interest before legal aid is granted is a legitimate matter for debate, on which the House may want to take a view in due course.
The hon. Member for Gainsborough continues to surprise. During consideration of the Crime and Disorder Bill, he virtually became the advocate for Liberty, so I was surprised to hear him criticise it for pursuing cases. I was also surprised to hear him support the Government and oppose the wishes of the hon. and learned Member for Harborough to expand access. As the hon. Gentleman rightly says, we should as far as possible pursue the Bill—which, as the hon. and learned Member for Harborough said, is an important constitutional measure—on a non-partisan and sensible basis.
1088 Arising from what has been said about victims, the right hon. Member for Caithness, Sutherland and Easter Ross mentioned the human rights commission. He was concerned that his point might be out of order, but I think that it was very much in order—although, of course, that is a matter for you, Sir Alan—on the basis that we are talking about who has access to the courts, and whether we should create a mechanism to ensure that those who are victims have some means of access to the courts, or whether an organisation should decide to bring a matter before the courts even though it is not itself a victim.
As the right hon. Gentleman knows, the Government have considered the issue of a human rights commission very carefully and consulted various organisations about it. It became clear that there was no consensus on the issue, and that, if we decided to establish such a commission through the Bill, we would end up not with a discussion of how to secure access to rights at Strasbourg but with a big debate and campaign about a commission and its terms of reference.
The Government do not have a closed mind on a commission—we have made our position clear. Different interest groups—the Commission for Racial Equality, the Equal Opportunities Commission and so on—have different views on whether a human rights commission would be a good thing, so the best we can do at the moment is to ensure that the convention is accepted as part of our law. After that, the need for a human rights commission may be the subject of a future debate—we shall have to see how that develops.
I believe that we have framed the Bill in a way that provides individuals with effective protection of the rights under the convention. As I have explained today and on previous occasions, the Government consider that the wording of clause 7 is wholly consistent with our overall approach. In the light of those comments, I hope that the hon. and learned Member for Harborough will withdraw his amendment, and that the right hon. Member for Caithness, Sutherland and Easter Ross will not press his amendments.
§ Mr. Garnier
I think that we would all agree that we have had a very good debate, and I am most grateful to all those who have informed our deliberations with their interventions and speeches.
The Opposition have not spoken with one voice, and I think that the debate has been the better for that. It is also fair to say that Labour Members have not been here at all—with the exception of those who have had to be here. I pay tribute and extend my sympathy to the Minister—I am sure that he has better and more interesting things to do. The Whip, of course, is here, although the Whips change from time to time as they go off to the Tea Room. I congratulate the hard-working, silent Parliamentary Private Secretary—a position that I held not in the Home Office, but in other Departments-on his patience and forbearance, as I appreciate that it is not always a dream come true to sit through the long hours of the proceedings acting as a messenger and encourager of one's political master.
I am happy to say that, at least on this occasion, the Liberal Democrats have come up as a real Opposition party—except on one matter—and have not fed out of the Government's hand. I do not want to lose the support of 1089 the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) and his hon. Friends by making that remark, as my opening speech was, as I candidly admitted at the outset, very much based on the speech of Lord Lester, who is a Liberal Democrat. My noble Friend Lord Kingsland was happy to support him, and I am delighted that the right hon. Gentleman has been happy to support much of what I said. I do not imagine that he has been persuaded by the Minister's explanation of why the Labour party has—as I think the right hon. Gentleman would say—reneged on its promise to establish a human rights commission or commissioner. I believe that the two parties struck a deal on that before the election, but that is a matter for them to sort out.
My hon. Friends the Members for Solihull (Mr. Taylor) and for South Cambridgeshire (Mr. Lansley) made speeches, and my hon. Friends the Members for Buckingham (Mr. Bercow), for Bromsgrove (Miss Kirkbride) and for Stone (Mr. Cash) made useful interventions, which assisted us in our debate, as did the hon. Member for Torridge and West Devon (Mr. Burnett).
The speech to which most attention has been paid, both by my hon. Friends and by the Minister, was that of my hon. Friend the Member for Gainsborough (Mr. Leigh)— I am delighted that he was able to take part in our proceedings, although I understand that he had to leave at 6.30 pm to attend a meeting that was arranged a long time ago. He supported the Government by praising the clarity of clause 7, at least in comparison with the lack of clarity of clause 6, which deals with those who can be sued, rather than those who, under clause 7, can sue. He was worried that the amendment would allow pressure groups to flood the courts with cases that had been generated to advance their own agendas rather than the case and the interests of the individual victim.
I say, with regret and with the greatest respect, that I am not entirely persuaded by my hon. Friend's arguments, although I know that he has thought deeply about the issue, not least as a passionate supporter of the Roman Catholic Church and, indeed, all the religious bodies that have expressed concern about the right to sue public authorities and Church bodies in the courts.
My hon. Friend the Member for South Cambridgeshire made a typically neat and elegant speech, dealing with interventions in a thoroughly admirable way. He rather diffidently said that he was not a lawyer. We all know that, and it has done him no harm. He added that the debate had been made accessible to non-lawyers. Of course, the doors of the Chamber are ever open, but this has not been what one might call an all-ticket occasion. I appreciate my hon. Friend's assistance, and I know that his well-made points will have been listened to carefully not only by me, because they supported my points, but by the Minister whose reply, if I may say so without embarrassing him, dealt thoroughly and courteously with the many points raised.
My hon. Friend the Member for Solihull described himself as a high-mileage politician. I have to stop myself from adding, "One lady owner, " because I do not wish him to be thought of as a motor car. He certainly motored through the debate with consummate ease, sometimes with his foot stuck to the accelerator. He gave us the benefit of his views from a background as a former elected Member of the European Parliament and a member of the Assembly of the Council of Europe.
1090 Although he is always self-deprecating, he is a lawyer of considerable experience. I always listen to him with great interest on matters of this sort.
My hon. Friend expressed misgivings about the treaty of Rome and its institutions, but he made it clear that there was a real distinction between that treaty and its institutions and the European convention and its institutions. He was also worried about the enthusiasm for actions that would be demonstrated by pressure groups. His thoughtful contribution kept us all on our toes.
I have already alluded to the Minister's response, in which he referred to the Government's victim test, saying that the arguments against it were misplaced. He disappointed me when he began, because I thought that he would simply repeat what the Lord Chancellor said in the other place, which would have been unworthy of him. I am happy to say that his reputation was restored to its usual level when he went on to deal at length, and with courtesy and a genuine willingness to assist, with the points made by those who disagree with him.
I regret to say that I am not in the least bit persuaded that the arguments that my hon. Friends and I advanced have been overcome. As the Minister rightly said, were tabled to improve the Bill, not to destroy it, even though many Opposition Members had trouble in supporting the convention's incorporation into domestic law. There are exceptions to that among the Opposition. I have no huge religious or principled objection to incorporation; it is the practicalities of the Bill which need to be attended to.
In view of the hour, I shall not press our amendments to a Division. I know that that will disappoint you, Mr. Martin, because it will give you no chance to use your voice to call a Division. I dare say that you can overcome that disappointment, and I intend no disrespect, of course, in making that remark. I shall, however, invite the Minister to consider the thoughts raised by the debate when they appear in the Official Report so that, if the matter is raised again on Report, the Government will be able to advance better arguments to persuade us that our points about denial of access to the English courts are wrong. I shall not press the amendment to a vote, and shall, at the appropriate time, invite the Committee to permit me to withdraw it.
§ Mr. Maclennan
I join the hon. and learned Member for Harborough (Mr. Gamier) in expressing my appreciation of all the hon. Members who participated in a debate which has been valuable, not least in eliciting from the Minister a fuller attempted explanation of the Government's position than was vouchsafed to the other place when the issue of access to the courts was discussed there. I hope to divide the Committee on that issue, because I am virtually certain that this is our last opportunity to consider the matter in this Session.
On the substance of the Minister's reply, I remain unpersuaded, for two reasons, that the Government have reached the right conclusion. First, by multiplying the criteria and not simply applying the same criteria as are used in judicial review cases, they have made more difficult the task of the courts in determining whether access should be available. It seems curious that the courts should be required to approach matters that might be cognate in substance, but different in procedural ways. That is the first reason why I believe that the Government have made an error of judgment. 1091 The second reason takes us into a much more speculative realm. What will the consequences be in terms of the number of cases brought, and the ease with which they can be disposed of? My view is that the Government take an unduly pessimistic view of the prospects. Although they couch that view in terms of prudence, it is not prudent to proceed in that way because individual actions may proliferate if there is less certainty than there might have been had test cases been taken by bodies with a substantial interest, which could put a matter to rest.
I speak with no huge authority on the subject, but my impression is that, in the United States, where some comparable rights are protected by the Bill of Rights under the United States constitution, there is not an enormous body of litigation proceeding through the courts. Perhaps that is because there is a fairly established jurisprudence. One thinks of the effect of a case like the Sullivan case in determining the balance between interests in disclosure, freedom of expression and other issues. Such a case can put the argument to rest for a very long time. That is what one would hope would happen in the United Kingdom, and what one would expect if suitable cases were decided. However, the Minister has candidly expressed the basis of the Government's thinking, for which 1 am grateful.
I am also grateful for the Minister's remarks about the putative role of a commissioner—an issue which is closely allied to the question of access to the courts. I am glad that he said that the Government's mind is not closed. I regret that it is not possible to proceed in the Bill because the money resolution does not cover the possibility of paying for such a commission, so debate exclusively on that subject would not be in order.
I also welcome the thought that the Government may be ready to proceed at an early date, once the territorial differences of opinion between the Equal Opportunities Commission, the Commission for Racial Equality and other organisations that feel that their turf is being trespassed on are sorted out. The wider public interest is in ensuring that the Bill works and that its objectives, which they all broadly support, are facilitated. I do not criticise those bodies.
We had rapid movement from the Government in bringing the Bill forward as an early measure in this Parliament. Perhaps it was too much to hope for a unified response on the issue to which the Minister alluded. However, it is of sufficient importance to merit an expression of the House's opinion in a vote.
§ Amendment, by leave, withdrawn.
§ The Chairman
At the appropriate time, I shall invite the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) to move his amendment formally.
§ Mr. Garnier
I beg to move amendment No. 51, in page 4, line 42, at end insert— 1092`(1A) Proceedings under subsection (1)(a) above may be brought without the leave of the court within three months of the commission of the unlawful act and otherwise may be brought only with the leave of the court'.
§ The Chairman
With this, it will be convenient to discuss the following amendments: Government amendment No. 125.
No. 139, in page 5, line 9, at end insert—'(4A) Proceedings under subsection (1)(a) must be brought before end of—
but that is subject to any rule imposing a stricter time limit in relation to the procedure in question.
- (a) the period of one year beginning with the date on which the act complained of took place; or
- (b) such longer period as the court or tribunal considers equitable having regard to all the circumstances, including the time by which the complainant knew or ought reasonably to have known of the substance of the complaint and the time by which he was reasonably able to bring the proceedings,(4B) For the purposes of subsection (4A)—
- (a) any act extending over a period shall be treated as done at the end of that period; and
- (b) a deliberate omission shall be treated as done at the end of that period.'.
§ Mr. Garnier
These amendments can be taken more quickly than the previous group. They all effectively propose a period of limitation for bringing the proceedings envisaged in clause 7(1)(a). Our amendment No. 51 adds a new subsection (1A):Proceedings under subsection (1)(a) above may be brought without the leave of the court within three months of the commission of the unlawful act and otherwise may be brought only with the leave of the court.The Government and Liberal Democrat amendments will be explained by the Minister and by the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) respectively. Both provide a regime for time limiting the bringing of proceedings in various ways. While we differ on the precise regime that should govern the limitation period and where the court should intervene, all three parties fully accept that there should be some time limitation.
The requirement for leave to bring proceedings in our courts is not new, nor is it new in the Scottish legal system. No doubt the right hon. Member for Caithness, Sutherland and Easter Ross can tell us more about that. It is found in both the criminal and civil jurisdictions. We had long a discussion about judicial review or its equivalent earlier. It is often required when appeals are being considered. The Committee will know that certain criminal proceedings cannot be taken without the leave of the Attorney-General or the Director of Public Prosecutions. Certain appeals in criminal cases need the leave, I believe, of either the judge who tried the case or of the Court of Appeal.
§ Mr. Garnier
My hon. Friend the Member for Beaconsfield (Mr. Grieve) encourages me.
It is equally well known that the courts discourage civil appeals, such as interlocutory appeals from judges of the High Court to the Court of Appeal. To get before the 1093 House of Lords—that is, the Judicial Committee of the House of Lords—one needs the leave of either the court of appeal from which one is appealing or of the House of Lords Judicial Committee itself.
The provenance of these amendments is not unknown or wholly outside the system of justice that we have developed over many years. With all due modesty, I invite the Committee to accept that our amendment is to be preferred. One needs only to consider the English of the other amendments to see why. Amendment No. 51 is short and to the point. It says precisely what it means, and provides the courts and potential defendants or respondents to applications under the Bill with sufficient protection. We suggest that proceedings can be brought within three months of the commission of the unlawful act without leave, but otherwise may be brought only with the leave of the court.
Government amendment No. 125 extends the limitation period to a year but allows proceedings to be brought after a longer period, which is effectively prescribed by the court or tribunal asequitable having regard to all the circumstances".While it is designed to achieve broadly the same purposes, it lacks the clarity of our amendment. In the absence of such clarity, it provides the courts with a far greater problem. The lack of definition in, for example, paragraph (b) of amendment No. 125 makes it a hugely vague and rather wide provision.
I hope that I will be forgiven by both the Minister and the right hon. Member for Caithness, Sutherland and Easter Ross for anticipating points that they may not make. The Liberal Democrat amendment No. 139 strikes me as unnecessarily wordy, and, in consequence, it achieves nothing. They are at one with the Government in wanting proceedings under subsection (1)(a) to be brought before the end of one year or withinsuch longer period as the court or tribunal considers equitable having regard to all the circumstances".However, it continues:including the time by which the complainant knew or ought reasonably to have known of the substance of the complaint and the time by which he was reasonably able to bring the proceedings, but that is subject to any rule imposing a stricter time limit in relation to the procedure in question.
I understand where the Liberal Democrats got that wording. I think that it comes from the modern rules on the limitation period under the amendment to the Limitation Act 1980. It is not necessary to have all that in there. Going back to our amendment No. 51, I suggest that a court is perfectly capable of doing such thinking for itself.
I have no doubt that an applicant to bring late proceedings would wish to address the court on those matters anyway, and would not be shut out by the court from doing so. I suggest that there is nothing to be gained by those additional words in the Liberal Democrat amendment. Therefore, I believe that I can safely invite the Committee to support amendment No. 51, in preference to Government amendment No. 125 and the Liberal Democrat amendment No. 139.
§ Mr. Maclennan
I should not wish to suggest that amendment No. 139, standing in my name and those of my right hon. Friend the Member for Berwick-upon-Tweed (Mr. Beith) and my hon. Friend the 1094 Member for Torridge and West Devon (Mr. Burnett), is anything more than a compromise. It is by no means the ideal approach to the question of the time limit.
Our simple view is that the Government proposal to introduce a one-year time limit for proceedings under clause 7, with a discretion to extend that period where a court or tribunal considers it equitable to do so, is not required. It is not required in comparable legislation in New Zealand, or in Canada, where a charter of rights and freedoms operates. Those jurisdictions rely, as should we, on the ordinary limitations applicable to civil proceedings.
The adoption of a human rights time limit will cause confusion and uncertainty. It will be especially confusing if the action involves another element, such as trespass, or what is essentially a Government tort claim, where the period will be three years if the case involves negligence or personal injuries, and six years for other torts such as trespass to property with a breach of privacy added on. Those points have been put to the Home Secretary by my noble and learned Friend Lord Lester, so the Government have had notice of our general view on this matter.
An alleged victim of a convention breach who delays for more than a year in bringing a claim under this legislation will not know whether he or she is able to proceed until he or she has persuaded a court or tribunal to exercise its discretion. It is difficult to judge which circumstances will result in a favourable exercise of that discretion, as the current wording of the exception in the Bill lacks such specifics.
The point is of greater importance in the context of the debate we have just had, where there is a narrow victim test, and in the absence of a human rights commissioner to assist complainants in formulating claims. Our concern is that people with potentially meritorious claims might be unaware that their rights have been infringed, especially if they have had limited access to legal services and have little knowledge about the impact of the legislation. A year time limit is a hurdle that might well put complainants off, or lead to meritorious cases not being brought.
Our amendment is a compromise, and I admit that I am not entirely happy with it as anything more than that. The Government would do best simply to let the normal rules on limitations apply to actions under the legislation.
§ Mr. Mike O'Brien
The amendments relate to the time within which proceedings against public authorities under the Bill are to be brought. To some extent, this is a matter of judgment, and the judgment of various parties in the Committee appears to differ. At present, the Bill makes no provision about limitation periods in which proceedings under clause 7(1)(a)—that is, proceedings brought on convention grounds alone and not under any pre-existing cause of action—have to be brought. We think, as do those who are moving the other amendments on the subject, that such proceedings should be no different from other civil proceedings in having a limitation period. What we differ on is how long the period should be and whether guidance should be given to the courts about when they should extend that period.
Before I discuss these points, I should, for the avoidance of any doubt, make the point that our amendment relates only to proceedings under clause 7(1)(a). If a plaintiff proceeded under clause 7(1)(b)—that is to say, he brought proceedings under an existing cause 1095 of action, and relied on his convention rights as an additional argument in support of his case—the limitation period would be the one that applies in the normal way to the existing cause of action.
The Government amendment provides that proceedings under clause 7(1)(a) must be brought within one year, beginning with the date on which the act complained of took place, or within such longer period as the court or tribunal considers equitable, having regard to all the circumstances. However, that time limit is subject to any stricter time limit in relation to the procedure in question. The most obvious such case is judicial review. Assuming that the new rules of court that will be needed for the Bill provide that a procedure analogous to judicial review may be used for cases under clause 7(1)(a), it is reasonable that the time limit for that procedure—which is three months—should continue to apply. It would not be right for applicants who choose to bring their claims by way of judicial review to benefit from the longer 12-month period proposed for claims under the Bill.
As the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) suggested, there is at present a range of limitation periods in our law. For judicial review proceedings, an application for leave must be made promptly, and in any event within three months; for cases of personal injury caused by negligence, it is three years; and for most other actions in tort, it is six years. There is no off-the-shelf answer to the question how long the limitation period for claims under clause 7(1)(a) should be. What we have tried to do in our amendment is to strike a balance between the legitimate needs of the plaintiff and the legitimate needs of the defendant, which is what all limitation periods should do.
§ Mr. Grieve
I would expect that the majority of proceedings brought simply for a breach, and not tacked on to anything else, are likely to be by judicial review. Given that, is not the effect of the clause as drafted by the Government somewhat misleading? It suggests a one-year limitation period, whereas in practice, only a three-month period will apply in the vast majority of cases.
§ Mr. O'Brien
I do not think that it is misleading, because I have just made the position clear; in addition, any court that has to interpret the legislation will understand the position and will be able to use Pepper v. Hart in the normal way in order to deal with the issues. We want what we propose to do to be clear on the face of the Bill, and I think that it is clear. I accept the thrust of the hon. Gentleman's point, but I do not think that the way in which we have done this is misleading.
Proceedings under clause 7(1)(a) will always be against a public authority, alleging that it has acted in a way that is incompatible with a convention right. Not all the public authorities concerned will be government authorities in the narrow sense. Judicial review has a short limitation period and, in our view, it is quite proper for there to be a fairly short period for proceedings under the legislation. The authority and those who are affected by its decisions are entitled to expect that proceedings of a novel character, if they are to be brought at all, will be brought promptly.
1096 Bearing those considerations in mind, we think that a one-year period is appropriate. Having a three-month period, as proposed by amendment No. 51, would be unduly strict. Equally, we think that, in the majority of cases, it is reasonable to expect challenges solely on convention grounds to be brought within 12 months. A longer limitation period would skew the balance too much against public authorities. We want to ensure that public authorities are made subject to the legislation, but we want to do that in a fair and balanced way, remembering that public authorities are often acting in the interests of the taxpayer and the citizen, so it is right that fairness should apply to them as well.
I am aware that some people consider that the 12-month time limit is too short, although there are no amendments before the Committee which would provide for a much longer basic period. It has been suggested that the ordinary limitations for civil proceedings should apply, as they do, for example, in New Zealand. If I might take the New Zealand example first, the legislation in that country has no precise equivalent to clause 7(1)(a). As the Committee will be aware, clause 7(1)(a) creates a cause of action, and the Bill would be open to criticism if it did not clearly state what limitation period was to apply to proceedings under that paragraph.
As I have said, we believe that the right balance is provided by a 12-month period, with a power to extend it for the benefit of the complainant.
Suggestions for a two or three-year period fail to take account of the existing three-month period for judicial review, to which many claims under clause 7(1)(a) will be similar.
We recognise, however, that there may be circumstances in which a rigid one-year cut off could lead to injustice. Our amendment therefore does not therefore seek to provide a rigid limit, but enables a court to extend the period where it is appropriate to do so. There will be cases in which an individual has a good reason for delay. In judicial review cases, for example, the courts have extended time where the applicant has been seeking redress by other proper means, such as by pursuing internal grievance procedures, or where he has had to apply for legal aid. I have no doubt that the courts will continue to exercise their discretion so as to prevent prejudice to one party or the other where an application is made to extend time.
The Government amendment provides that the limitation period is to be one yearor such longer period as the court or tribunal considers equitable having regard to all the circumstances".We have said no more than that, because I think that to expand on those circumstances might be likely to prove unhelpful to the court. We do not wish to narrow the range of circumstances which might influence the court.
It would be impossible to provide an exhaustive list of circumstances. We could provide a long list, and then find that, in the first case that came to court, there was a special factor which had not been included in the list. There is also a risk—this is the difficulty with amendment No. 139—in specifying some only of the circumstances which the court might be expected to take into consideration, even if they seem to be the most obvious ones and the ones which might be expected to arise most often.
Amendment No. 139 would put into the Bill just two factors which the court should consider—the time when the complainant knew or ought reasonably to have known 1097 of the substance of the complaint and the time by which he was reasonably able to bring proceedings. I agree that these factors may well be taken into account by the court. Specifying these considerations would inevitably imply that more weight should be given to them than to other considerations which do not appear in the list. That might be a reasonable approach for a provision which deals with very specific causes of action, such as personal injury claims, but it is more problematic when we are dealing with the wide range of proceedings possible under clause 7(1)(a).
Similarly, to include some factors may trigger the question why some other quite different sort of circumstance has been omitted. If a factor that is likely to favour one party is included, it may be asked why it should not be balanced by a factor likely to favour the other party. The inclusion of some factors is likely to cause more problems than it solves.
It may be helpful if I draw attention to the limitation provisions in another area. The Sex Discrimination Act 1975 has a number of limitation periods—all less than a year—but, as with Government amendment No. 125, a court or tribunal can consider an application out of timeif, in all the circumstances of the case, it considers that it is just and equitable to do so.No further guidance is given in the Act, but a body of law has been built up when it is appropriate to exercise the discretion. We have no doubt that the same would happen under the Bill.
The other part of amendment No. 139 would add special provision to deal with cases where the act or omission complained of took place not on a single date, from which the limitation period would run, but over a period. The concept of an act which extends over several days, or longer, is not new, and the courts will be able to deal with such cases in an appropriate manner without special provision being made for them.
In tort, a fresh cause of action accrues every day on which the continuing tort occurs. In judicial review, time starts to run when the grounds for the application first arise. The fact that an unlawful act is a continuing one may, but does not always, enable an applicant to obtain leave out of time. The proposed amendment would deny the courts the chance to be flexible and to do what is fair in each case.
As for omissions, the Bill already provides, in clause 6, that an act includes a failure to act. That goes wider than deliberate failures: an unintentional failure to act by a public authority is to be open to challenge under the Bill in the same way as any other failure to act, if that failure is incompatible with convention rights. Also, there is no need to state that a "deliberate omission" shall be treated as beingdone at the end of that period.As with on-going acts, our courts are familiar with the concept of on-going omissions, and are able to deal with them in the appropriate way.
I have spoken at some length to explain why we have opted for the approach that we have set out in amendment No. 125. We believe that our amendment provides the appropriate limitation period, and that it would be unwise to go into detail about when the period may be extended. I think that it is a matter of judgment, and I respect the fact that hon. Members may have a different judgment. I 1098 am not sure that the wording of their amendments is right but there is room for a debate about how long the period should be. We have formed a judgment that is somewhat different from those formed by others in the Chamber. Obviously we have done that after due consideration. We think that it is the right period.
In the light of our explanation, I hope that the hon. and learned Member for Harborough and the right hon. Member for Caithness, Sutherland and Easter Ross will feel able not to press their amendments.
§ Mr. Grieve
I am most grateful to the Minister for having set out with such clarity the Government's thinking on this matter. The question that I asked him in the course of what he had to say was designed not to be hostile but to explore some of the issues.
There are undoubtedly different and, to my mind, perfectly legitimate ways of approaching the issue. That of the Opposition, as set out in amendment No. 51, is designed to bring the matter in line with judicial review and then allow the usual exceptions which would be considered on any judicial review application to apply if the application were out of time. It is well enough known that many applications in judicial review are made out of time and accepted out of time.
The one matter that concerns me slightly—I shall be grateful to hear the Minister's view on it—is that it seems that one perhaps unintended consequence of the way in which the Government have seen fit to put in a limitation period is that we may well start seeing new and creative ways of trying to litigate the question of a human rights breach because the three-month period has expired before the complainant goes to his solicitor to complain. I shall widen that a little, so that the Minister understands what I am saying.
It seems that, if we have a three-month period, which is the same as that for judicial review, it will normally be incumbent upon the litigant to go within that period. However, as often happens, there will be occasions when the three-month period cannot be met. An application will be made to the court, explaining and stating the reasons, and the court will exercise its discretion.
I am bound to say that, with the one-year limitation period being inserted, which is really incompatible with the judicial review period of three months, I anticipate that there may be a slight inclination, if a solicitor is approached after five months by a potential litigant seeking redress, to say, "You are outside the time for judicial review, although we could apply and ask for that time to be waived, but should we be looking for some other mechanism by which we should be seeking redress?" Is it not the case that, if someone is to launch proceedings, he or she will want some certainty? No one would want the first set to be knocked out of touch, which would mean trying to initiate a second set of parallel proceedings in another form.
I shall be grateful to hear the Minister's comments, because it seems that there is a potential problem. For instance, someone might-seek to bring judicial review proceedings after five months, find that he is not given the discretion and then go away and think whether there might be some other means by which those proceedings may still be initiated within the 12-month period. That is why earlier I asked whether it is not the case that, in 99 per cent. of those cases, judicial review will be the normal 1099 means of seeking redress. I should like the Minister to respond to that. Although I accept that there may be occasions when other proceedings apply, I am bound to say that they do not readily spring to mind, and I would therefore expect judicial review to be the normal procedure.
I am concerned that we are getting into muddied waters. I appreciate what the Government are trying to achieve, and I realise that, to many people, three months seems a very short period. However, three months, with the usual exceptions granted by the courts, seems to have worked pretty well for judicial review. If that is the case, I wonder whether three months is not the better period to fix, because it concentrates people's minds and invites them to make the necessary application if they feel that there are exceptional circumstances.
The Government amendment suggests a twin-track approach, which may create much more complex litigation that will clog up the courts as they start to determine what other means might be legitimate within the 12-month period to bring proceedings that are other than proceedings for judicial review. I hope that the Minister understands the point that I am trying to make. I do not want to labour the point. I should be grateful for the Minister's comments on this matter because the key point is that the redress should be as simple as possible. If we start creating enormous complexities for the method of redress, it will not be in the interests of those who have justifiable grounds for seeking redress under the Bill.
§ Mr. Mike O'Brien
I understand the point raised by the hon. Member for Beaconsfield (Mr. Grieve). I know that he supports the Bill and that he is trying to be helpful. He is trying to ask whether we would be creating novel legal procedures to circumvent judicial review. In considering any application that sought to do that, the courts would take account not only of the wording of the Bill, but, under Pepper v. Hart, what I said as the Minister presenting the Bill.
It is not our intention to create a vast array of novel features that would allow litigants to pursue cases in courts in a way that the courts and Parliament had not intended. However, someone with a genuine human rights grievance will be entitled to pursue it under clause 7(1)(a), whether or not he is within the time limit for judicial review. We accept that that should be so. The amendment seeks to insert a one-year time limit for clause 7(1)(a) so that the courts have time to make a judgment. We have not sought to constrain that time too much because paragraph (b) of our amendment allows the courts to decide when they wish to go beyond the 12-month period, should it be equitable to do so.
We are conscious that it is important that the person is allowed to pursue any action under clause 7(1)(a). We do not want to create an artificial time limit of three months, as the Opposition seek to do, without giving the level of flexibility that is needed. The amendment would tie the procedure too tightly to the judicial review procedure. The courts will develop their own jurisprudence on this issue, over time. I agree with the hon. Member for Beaconsfield that we want to keep matters simple and straightforward, 1100 but the courts will take note of what Parliament has said, and will be able to consider the points that I have made as Minister at the Dispatch Box. They will understand that we are seeking not to create novel areas of litigation, but to continue to pursue matters in the proper and most appropriate way.
§ Mr. Garnier
We have not seen the Chamber this full since Prime Minister's Question Time, and I can only assume that it is either because the Minister and I have made particularly novel comments that have drawn hon. Members from their offices into the Chamber, or because the Minister without Portfolio is here, and every Labour Back-Bencher should know where the Minister without Portfolio is. We are delighted that he is here to bless the proceedings.
In his concluding remarks, the Minister said that the limitation constriction in the Government amendment applied only to proceedings under clause 7(1)(a), which is true of our amendment. He said that the Government amendment was intended to strike a balance between applicants and respondents. I suggest that ours does, too.
The more I hear the name Pepper v. Hart being bandied about by Ministers or Back Benchers, the more I wish that the judgment could be overturned. It is, and will increasingly be seen as, a highly dangerous judicial intervention into this country's law making. If the Government do nothing else during the next five years—and I dare say they will do other things—I hope that they will consider the case of Pepper v. Hart so that Ministers are not permanently inhibited in their discussions for fear that they may say something that the courts will use in arguments before them.
§ Mr. Garnier
I can think of many better ways of inhibiting Ministers than the case of Pepper v. Hart.
My hon. Friend the Member for Beaconsfield (Mr. Grieve), in his typically helpful way, drew the Committee's attention to a number of points that the Minister courteously dealt with a few moments ago. In the light of the broad agreement in the Committee on the principle behind the amendments, I beg to ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Amendment proposed: No. 42, in clause 7, page 5, line 4, leave out lines 4 to 6 and insert—
'(3) Nothing in subsection (1) shall prevent an applicant from bringing an application for judicial review provided that the court considers that he has a sufficient interest in the matter to which the application relates:—[Mr. Maclennan.]
§ Question put, That the amendment be made:—
§ The Committee divided: Ayes 35, Noes 243.1102
|Division No. 314]||[7.6 pm|
|Allan, Richard||Cable, Dr Vincent|
|Baker, Norman||Campbell, Menzies (NE Fife)|
|Ballard, Jackie||Cotter, Brian|
|Beith, Rt Hon A J||Davey, Edward (Kingston)|
|Brake, Tom||Ewing, Mrs Margaret|
|Breed, Colin||Fearn, Ronnie|
|Bruce, Malcolm (Gordon)||Foster, Don (Bath)|
|Harris, Dr Evan||Russell, Bob (Colchester)|
|Harvey, Nick||Sanders, Adrian|
|Heath, David (Somerton & Frome)||Smith, Sir Robert (W Ab'd'ns)|
|Hughes, Simon (Southwark N)||Taylor, Matthew (Truro)|
|Keetch, Paul||Tonge, Dr Jenny|
|Kirkwood, Archy||Tyler, Paul|
|Livsey, Richard||Wallace, James|
|Llwyd, Elfyn||Wigley, Rt Hon Dafydd|
|Maclennan, Rt Hon Robert||Willis, Phil|
|Moore, Michael||Tellers for the Ayes:|
|Oaten, Mark||Mr. Andrew Stunell and|
|Render, David||Mr. John Burnett.|
|Adams, Mrs Irene (Paisley N)||Davies, Rt Hon Ron (Caerphilly)|
|Ainger, Nick||Dawson, Hilton|
|Ainsworth, Robert (Cov'try NE)||Denham, John|
|Allen, Graham||Dismore, Andrew|
|Anderson, Donald (Swansea E)||Dobbin, Jim|
|Anderson, Janet (Rossendale)||Donohoe, Brian H|
|Armstrong, Ms Hilary||Doran, Frank|
|Ashton, Joe||Dowd, Jim|
|Atkins, Charlotte||Eagle, Angela (Wallasey)|
|Banks, Tony||Eagle, Maria (L'Pool Garston)|
|Barron, Kevin||Edwards, Huw|
|Battle, John||Ellman, Mrs Louise|
|Beard, Nigel||Ennis, Jeff|
|Begg, Miss Anne||Fitzpatrick, Jim|
|Benn, Rt Hon Tony||Fitzsimons, Lorna|
|Bennett, Andrew F||Flint, Caroline|
|Bermingham, Gerald||Follett, Barbara|
|Berry, Roger||Foster, Michael Jabez (Hastings)|
|Betts, Clive||Foulkes, George|
|Blackman, Liz||Galloway, George|
|Blears, Ms Hazel||Gapes, Mike|
|Blizzard, Bob||Gardiner, Barry|
|Blunkett, Rt Hon David||George, Bruce (Walsall S)|
|Borrow, David||Gerrard, Neil|
|Bradley, Peter (The Wrekin)||Gilroy, Mrs Linda|
|Bradshaw, Ben||Godsiff, Roger|
|Brown, Rt Hon Nick (Newcastle E)||Goggins, Paul|
|Browne, Desmond||Golding, Mrs Llin|
|Buck, Ms Karen||Grant, Bernie|
|Burden, Richard||Griffiths, Jane (Reading E)|
|Butler, Mrs Christine||Griffiths, Win(Bridgend)|
|Caborn, Richard||Gunnell, John|
|Campbell, Mrs Anne (C'bridge)||Hain, peter|
|Campbell-Savours, Dale||Hall, Mike (Weaver Vale)|
|Cann, Jamie||Hall, Patrick (Bedford)|
|Caplin, Ivor||Hamilton, Fabian (Leeds NE)|
|Caton, Martin||Hanson, David|
|Chapman, Ben (Wirral S)||Healey, John|
|Clapham, Michael||Henderson, Ivan (Harwich)|
|Clark, Dr Lynda||Hepburn, Stephen|
|(Edinburgh Pentlands)||Hesford, Stephen|
|Clarke, Charles (Norwich S)||Hill, Keith|
|Clarke, Rt Hon Tom (Coatbridge)||Hodge, Ms Margaret|
|Clarke, Tony (Northampton S)||Hoey, Kate|
|Clelland, David||Home Robertson, John|
|Clwyd, Ann||Hopkins, Kelvin|
|Coaker, Vernon||Howarth, Alan (Newport E)|
|Connarty, Michael||Howarth, George (Knowsley N)|
|Cooper, Yvette||Howells, Dr Kim|
|Corbyn, Jeremy||Hoyle, Lindsay|
|Corston, Ms Jean||Hughes, Ms Beverley (Stretford)|
|Cranston, Ross||Hughes, Kevin (Doncaster N)|
|Crausby, David||Hurst, Alan|
|Cummings, John||Hutton, John|
|Cunningham, Jim (Cov'try S)||Iddon, Dr Brian|
|Curtis-Thomas, Mrs Claire||Illsley, Eric|
|Dalyell, Tam||Jackson, Ms Glenda (Hampstead)|
|Darling, Rt Hon Alistair||Jackson, Helen (Hillsborough)|
|Darvill, Keith||Johnson, Alan (Hull W & Hessle)|
|Davey, Valerie (Bristol W)||Johnson, Miss Melanie|
|Davidson, Ian||(Welwyn Hatfield)|
|Davies, Geraint (Croydon C)||Jones, Barry(Alyn & Deeside)|
|Jones, Helen (Warrington N)||Prentice, Gordon (Pendle)|
|Kaufman, Rt Hon Gerald||Prescott, Rt Hon John|
|Keeble, Ms Sally||Primarolo, Dawn|
|Keen, Alan(Feltham & Heston)||Purchase, Ken|
|Keen, Ann(Brentford & Isleworth)||Quin, Ms Joyce|
|Kemp, Fraser||Quinn, Lawrie|
|Kennedy, Jane(Wavertree)||Radice, Giles|
|Khabra, Piara S||Rammell, Bill|
|Kidney, David||Rapson, Syd|
|Kilfoyle, Peter||Raynsford, Nick|
|King, Ms Oona(Bethnal Green)||Robertson, Rt Hon George|
|Kingham, Ms Tess||(Hamilton S)|
|Ladyman, Dr Stephen||Roche, Mrs Barbara|
|Lawrence, Ms Jackie||Rooker, Jeff|
|Laxton, Bob||Rooney, Terry|
|Lepper, David||Ross, Ernie(Dundee W)|
|Levitt, Tom||Rowlands, Ted|
|Lewis, Ivan (Bury S)||Roy, Frank|
|Lewis, Terry (Worsley)||Ruane, Chris|
|Liddell, Mrs Helen||Ruddock, Ms Joan|
|Livingstone, Ken||Ryan, Ms Joan|
|Lloyd, Tony(Manchester C)||Sawford, Phil|
|Lock, David||Sedgemore, Brian|
|Love, Andrew||Sheerman, Barry|
|McAvoy, Thomas||Sheldon, Rt Hon Robert|
|McCafferty, Ms Chris||Short, Rt Hon Clare|
|McDonagh, Siobhain||Simpson, Alan(Nottingham S)|
|Macdonald, Calum||Singh, Marsha|
|McFall, John||Skinner, Dennis|
|McIsaac, Shona||Smith, Rt Hon Andrew(Oxford E)|
|McNulty, Tony||Soley, Clive|
|Mactaggart, Fiona||Southworth, Ms Helen|
|McWalter, Tony||Spellar, John|
|McWilliam, John||Starkey, Dr Phyllis|
|Mandelson, Peter||Steinberg, Gerry|
|Marsden, Gordon(Blackpool S)||Stewart, David(Inverness E)|
|Marsden, Paul(Shrewsbury)||Stewart, Ian(Eccles)|
|Marshall, David(Shettleston)||Stinchcombe, Paul|
|Martlew, Eric||Strang, Rt Hon Dr Gavin|
|Maxton, John||Straw, Rt Hon Jack|
|Meale, Alan||Stringer, Graham|
|Michie, Bill (Shef'ld Heeley)||Stuart, Ms Gisela|
|Miller, Andrew||Sutcliffe, Gerry|
|Moonie, Dr Lewis||Taylor, Rt Hon Mrs Ann|
|Moran, Ms Margaret||(Dewsbury)|
|Morgan, Ms Julie(Cardiff N)||Thomas, Gareth R(Harrow W)|
|Morgan, Rhodri(Cardiff W)||Tipping, Paddy|
|Morley, Elliot||Todd, Mark|
|Morris, Ms Estelle(B'ham Yardley)||Touhig, Don|
|Mudie, George||Trickett, Jon|
|Mullin, Chris||Turner, Dr George(NW Norfolk)|
|Murphy, Denis(Wansbeck)||Twigg, Stephen(Enfield)|
|O'Brien, Bill(Normanton)||Vaz, Keith|
|O'Brien, Mike(N Warks)||Walley, Ms Joan|
|Olner, Bill||Whitehead, Dr Alan|
|O'Neill, Martin||Wicks, Malcolm|
|Organ, Mrs Diana||Winnick, David|
|Palmer, Dr Nick||Winterton, Ms Rosie (Doncaster C)|
|Pendry, Tom||Wright, Anthony D (Gt Yarmouth)|
|Pickthall, Colin||Wright, Dr Tony (Cannock)|
|Pound, Stephen||Tellers for the Noes:|
|Powell, Sir Raymond||Mr. David Jamieson and|
|Prentice, Ms Bridget (Lewisham E)||Mr. Greg Pope.|
§ Question accordingly negatived.
Amendment proposed: No. 125, in clause 7, page 5, line 9, at end insert—
'( ) Proceedings under subsection (1)(a) must be brought before the end of—
§ Question put, That the amendment be made:—
§ The Committee divided: Ayes 232, Noes 34.1104
|Division No.315]||[7.18 pm|
|Adams, Mrs Irene (Paisley N)||Doran, Frank|
|Ainger, Nick||Dowd, Jim|
|Ainsworth, Robert (Cov'try)NE)||Eagle, Angela(Wallasey)|
|Allen, Graham||Eagle, Maria (L'Pool Garston)|
|Anderson, Donald (Swansea E)||Edwards, Huw|
|Anderson, Janet (Rossendale)||Ellman, Mrs Louise|
|Armstrong, Ms Hilary||Ennis, Jeff|
|Ashton, Joe||Fitzsimons, Lorna|
|Atkins, Charlotte||Flint, Caroline|
|Banks, Tony||Follett, Barbara|
|Barron, Kevin||Foster, Michael Jabez (Hastings)|
|Battle, John||Foulkes, George|
|Beard, Nigel||Galloway, George|
|Begg, Miss Anne||Gapes, Mike|
|Benn, Rt Hon Tony||Gardiner, Barry|
|Bennett, Andrew F||George, Bruce (Walsall S)|
|Bermingham, Gerald||Gerrard, Neil|
|Berry, Roger||Gilroy, Mrs Linda|
|Betts, Clive||Godsiff, Roger|
|Blackman, Liz||Goggins, Paul|
|Blears, Ms Hazel||Golding, Mrs Llin|
|Blizzard, Bob||Griffiths, Jane (Reading E)|
|Blunkett, Rt Hon David||Griffiths, Win (Bridgend)|
|Borrow, David||Gunnell, John|
|Bradley, Peter (The Wrekin)||Hain, Peter|
|Bradshaw, Ben||Hall, Mike (Weaver Vale)|
|Brown, Rt Hon Nick (Newcastle E)||Hall, Patrick (Bedford)|
|Browne, Desmond||Hamilton, Fabian (Leeds NE)|
|Buck, Ms Karen||Hanson, David|
|Burden, Richard||Healey, John|
|Butler, Mrs Christine||Henderson, Ivan (Harwich)|
|Caborn, Richard||Hesford, Stephen|
|Campbell, Mrs Anne (C'bridge)||Hill, Keith|
|Campbell-Savours, Dale||Hodge, Ms Margaret|
|Cann, Jamie||Hoey, Kate|
|Caplin, Ivor||Home Robertson, John|
|Caton, Martin||Hopkins, Kelvin|
|Clapham, Michael||Howarth, George (Knowsley N)|
|Clark, Dr Lynda||Howells, Dr Kim|
|(Edinburgh Pentlands)||Hoyle, Lindsay|
|Clarke, Charles (Norwich S)||Hughes, Ms Beverley (Stretford)|
|Clarke, Rt Hon Tom (Coatbridge)||Hughes, Kevin(Doncaster N)|
|Clarke, Tony (Northampton S)||Hurst, Alan|
|Clelland, David||Hutton, John|
|Clwyd, Ann||Iddon, Dr Brian|
|Coaker, Vernon||Illsley, Eric|
|Connarty, Michael||Jackson, Ms Glenda (Hampstead)|
|Corbyn, Jeremy||Jackson, Helen (Hillsborough)|
|Corston, Ms Jean||Johnson, Alan(Hull W & Hessle)|
|Cranston, Ross||Johnson, Miss Melanie|
|Crausby, David||(Welwyn Hatfield)|
|Cummings, John||Jones, Barry (Alyn & Deeside)|
|Cunningham, Jim (Cov'try S)||Jones, Helen (Warrington N)|
|Curtis-Thomas, Mrs Claire||Kaufman, Rt Hon Gerald|
|Dalyell, Tam||Keeble, Ms Sally|
|Darling, Rt Hon Alistair||Keen, Alan (Feltham & Heston)|
|Darvill, Keith||Keen, Ann (Brentford & Isleworth)|
|Davey, Valerie (Bristol W)||Kemp, Fraser|
|Davidson, Ian||Kennedy, Jane (Wavertree)|
|Davies, Rt Hon Denzil (Llanelli)||Khabra, Piara S|
|Davies, Geraint (Croydon C)||Kidney, David|
|Davies, Rt Hon Ron (Caerphilly)||Kilfoyle, Peter|
|Dawson, Hilton||King, Ms Oona (Bethnal Green)|
|Denham, John||Kingham, Ms Tess|
|Dismore, Andrew||Ladyman, Dr Stephen|
|Dobbin, Jim||Lawrence, Ms Jackie|
|Donohoe, Brian H||Laxton, Bob|
|Lepper, David||Robertson, Rt Hon George|
|Levitt, Tom||(Hamilton S)|
|Lewis, Ivan (Bury S)||Roche, Mrs Barbara|
|Lewis, Terry (Worsley)||Rooker, Jeff|
|Liddell, Mrs Helen||Rooney, Terry|
|Livingstone, Ken||Ross, Ernie (Dundee W)|
|Lloyd, Tony (Manchester C)||Rowlands, Ted|
|Lock, David||Roy, Frank|
|Love, Andrew||Ruane, Chris|
|McAvoy, Thomas||Ruddock, Ms Joan|
|McCafferty, Ms Chris||Ryan, Ms Joan|
|McDonagh, Siobhain||Sawford, Phil|
|Macdonald, Calum||Sedgemore, Brian|
|McFall, John||Sheerman, Barry|
|McIsaac, Shona||Sheldon, Rt Hon Robert|
|McNulty, Tony||Short, Rt Hon Clare|
|Mactaggart, Fiona||Simpson, Alan (Nottingham S)|
|McWalter, Tony||Singh, Marsha|
|Marsden, Gordon (Blackpool s)||Skinner, Dennis|
|Marsden, Paul (Shrewsbury)||Smith, Rt Hon Andrew (Oxford E)|
|Marshall, David (Shettleston)||Snape, Peter|
|Martlew, Eric||Soley, Clive|
|Maxton, John||Southworth, Ms Helen|
|Meale, Alan||Spellar, John|
|Michie, Bill (Shef'ld Heeley)||Starkey, Dr Phyllis|
|Miller, Andrew||Steinberg, Gerry|
|Moonie, Dr Lewis||Stewart, David (Inverness E)|
|Moran, Ms Margaret||Stewart, Ian (Eccles)|
|Morgan, Ms Julie (Cardiff N)||Strang, Rt Hon Dr Gavin|
|Morgan, Rhodri (Cardiff W)||Straw, Rt Hon Jack|
|Morley, Elliot||Stringer, Graham|
|Morris, Ms Estelle (B'ham Yardley)||Stuart, Ms Gisela|
|Mudie, George||Taylor, Rt Hon Mrs Ann|
|Murphy, Denis (Wansbeck)||Thomas, Gareth R (Harrow W)|
|O'Brien, Mike (N Warks)||Tipping, Paddy|
|Olner, Bill||Todd, Mark|
|O'Neill, Martin||Touhig, Don|
|Organ, Mrs Diana||Trickett, Jon|
|Palmer, Dr Nick||Turner, Dennis (Wolverh'ton SE)|
|Pendry, Tom||Turner, Dr George (NW Norfolk)|
|Pickthall, Colin||Vaz, Keith|
|Pound, Stephen||Walley, Ms Joan|
|Prentice, Ms Bridget (Lewisham E)||Whitehead, Dr Alan|
|Prentice, Gordon (Pendle)||Wicks, Malcolm|
|Primarolo, Dawn||Winnick, David|
|Purchase, Ken||Winterton, Ms Rosie (Doncaster C)|
|Quin, Ms Joyce||Wright, Anthony D (Gt Yarmouth)|
|Quinn, Lawrie||Wright, Dr Tony (Cannock)|
|Rammell, Bill||Tellers for the Ayes:|
|Rapson, Syd||Mr. David Jamieson and|
|Raynsford, Nick||Mr. Greg Pope.|
|Allan, Richard||Kirkwood, Archy|
|Baker, Norman||Livsey, Richard|
|Ballard, Jackie||Llwyd, Elfyn|
|Beith, Rt Hon A J||Maclennan, Rt Hon Robert|
|Brake, Tom||Moore, Michael|
|Breed, Colin||Oaten, Mark|
|Bruce, Malcolm (Gordon)||Robinson, Peter (Belfast E)|
|Burnett, John||Russell, Bob (Colchester)|
|Cable, Dr Vincent||Sanders, Adrian|
|Campbell, Menzies (NE Fife)||Smith, Sir Robert (W Ab'd'ns)|
|Cotter, Brian||Taylor, Matthew (Truro)|
|Fearn, Ronnie||Tonge, Dr Jenny|
|Foster, Don (Bath)||Wallace, James|
|George, Andrew (St Ives)||Wigley, Rt Hon Dafydd|
|Harris, Dr Evan||Willis, Phil|
|Heath, David (Somerton & Frame)||Tellers for the Noes:|
|Hughes, Simon (Southwark N)||Mr. Paul Tyler and|
|Keetch, Paul||Mr. Andrew Stunell.|
§ Question accordingly agreed to.7.30 pm
§ The Chairman
With this it will be convenient to discuss amendment No. 59, in clause 8, page 6, line 18, at end insert—'(2A) In the case of criminal proceedings, no person shall be acquitted by reason only of a finding that an act of a public authority is unlawful, unless the court has made a declaration of incompatibility under section 4 in relation to those proceedings'.
§ Mr. Garnier
I hope that I can be reasonably brief in speaking to the amendments.
There will be occasions when a public authority may do something that contravenes a citizen's convention rights, and in so doing gets hold of evidence that may be used in legal proceedings—for example, a criminal case—to achieve a conviction. I think of telephone tapping by the police or some other public authority which, on the face of it, is in breach of article 8 of the convention. That evidence could lead to the conviction of someone for drug smuggling or some sort of criminal conspiracy. I do not need to cite further examples for the Minister to understand the point which I am making.
There are certain weapons, regrettable though their use may be in the narrow context, that a civilised and law-abiding society must have available to it to counter the activities of those who seek to destroy our elected democracy or the foundations of our democratic society. Terrorism, drug smuggling and organised crime are all activities of which no one would approve, but terrorists and drug smugglers have rights under the convention.
When the Bill becomes law, I have absolutely no doubt that there will be such people who, if caught and brought before our criminal courts, will attempt to use any weapon, any legal device, available to secure an acquittal. In their eyes, that acquittal may be right because it is legally sustainable, but in the eyes of right-thinking people generally it will be an abuse. We have tabled the amendments in anticipation of that, and to counter such applications.
Having given that introductory outline, it might assist the Committee if I now deal with the question of derogations in part I of schedule 2. I remind the Committee that amendment No. 59 states:In the case of criminal proceedings, no person shall be acquitted by reason only of a finding that an act of a public authority is unlawful, unless the court has made a declaration of incompatibility under section 4 in relation to those proceedings.I hope that I am not being too obtuse, but it seems that, although the Bill was not contemplated in 1988, or even in March 1989, the United Kingdom thought it necessary, as a signatory to the convention, to dissociate itself from some of its terms.
The derogation in schedule 2 affects terrorists, especially terrorists active in Northern Ireland. It states:There have been in the United Kingdom in recent years"—we are talking about the 1980s—campaigns of organised terrorism connected with the affairs of Northern Ireland which have manifested themselves in activities which have included repeated murder, attempted murder, maiming, 1106 intimidation and violent civil disturbance and in bombing and fire raising which have resulted in death, injury and widespread destruction of property. As a result, a public emergency within the meaning of Article 15(1) of the Convention exists in the United Kingdom.The derogation goes on to say:The Government found it necessary in 1974 to introduce and since then, in cases concerning persons reasonably suspected of involvement in terrorism connected with the affairs of Northern Ireland, or of certain offences under the legislation, who have been detained for 48 hours, to exercise powers enabling further detention without charge, for periods of up to five days, on the authority of the Secretary of State. These powers are at present to be found in Section 12 of the Prevention of Terrorism (Temporary Provisions) Act 1984, Article 9 of the Prevention of Terrorism (Supplemental Temporary Provisions) Order 1984 and article 10 of the Prevention of Terrorism (Supplemental Temporary Provisions) (Northern Ireland) Order 1984.
The derogation explains why, in 1988, the UK thought it appropriate, in the interests of its internal security and of protecting its citizens in Northern Ireland and on the mainland of Great Britain, to dissociate itself from the convention provision that prevented detention without trial and unnecessary or unfairly lengthy detention before the bringing of a charge or of a suspect before the court. I certainly do not need to explain to Labour Members—at least, not in this Parliament, although I might have in the last Parliament—why that was necessary. Towards the end of the last Parliament, the Labour Opposition began to see the reason and good sense of what we had done in introducing the 1984 legislation and its attendant provisions.
In 1989, the UK permanent representative to the Council of Europe presented a further notice of derogation to the Secretary General. Again, it related to the 1984 Act, article 9 of the Prevention of Terrorism (Supplemental Temporary Provisions) Order 1984 and article 10 of the Prevention of Terrorism (Supplemental Temporary Provisions) (Northern Ireland) Order 1984. The schedule states:These provisions have been replaced by section 14 of and paragraph 6 of Schedule 5 to the Prevention of Terrorism (Temporary Provisions Act 1989, which make comparable provision.
The rationale for the presentation of that derogation to the Secretary General of the Council of Europe on 23 March 1989 was the same as the rationale that lay behind the presentation of the derogation signed in December 1988.
Convention rights—which on paper are available to people who seek to undermine our democratic institutions—could be used to the unfair and improper disadvantage of our institutions. I invite the Minister briefly to reassure me that the Government will not, by means of the Bill, prevent Parliament and the courts from reaching just decisions in respect of alleged criminals—or by then, I hope, convicted criminals—even though they may technically have had their human rights interfered with in the process of the criminal investigation.
I come back to the example I gave at the outset. A telephone tap interferes with an individual's human rights. I hope that the Government can see their way to understanding my point and the motive behind my amendments, so that we can reassure our law-abiding 1107 citizens that we do not place the technical human rights of the criminal classes above our affection and respect for the rule of law.
§ Mr. Mike O'Brien
Amendment No. 54 would delete clause 7(7), which states:Nothing in this Act creates a criminal offence.We considered whether the Bill should enable criminal proceedings to be brought when a public authority has acted unlawfully, and we concluded that it should not. The Bill contains ample provisions for challenging the acts of a public authority, and the courts have wide-ranging scope to grant an appropriate remedy to the individual affected by an unlawful act. We see no reason to impose a criminal sanction specifically for a breach of the convention.
That is the normal approach. For example, both the Sex Discrimination Act 1975 and the Race Relations Act 1976 specifically preclude criminal proceedings for breaches of the prohibition on discriminatory treatment under those Acts. I should perhaps add, for the avoidance of doubt, that some incompatible acts may amount to criminal offences in their own right, and the Bill, including clause 7(7), does not affect that. For example, ill treatment that is contrary to article 3 of the convention on the prohibition of torture may amount to an offence under the Offences Against the Person Act 1861. In such circumstances, criminal proceedings could be brought, but they would be for an alleged breach of the 1861 Act, not for an alleged failure to comply with article 3.
Amendment No. 59 would insert a new subsection in clause 8 to the effect that a person should not be acquitted in a criminal trial by reason only of a finding that an act of a public authority was unlawful unless the court had made a declaration of incompatibility in relation to those proceedings. I shall first address what I take to be the intention behind the amendment—to restrict the ability of the courts, especially the lower courts, to acquit a person solely on the basis that he has been the victim of an unlawful act by a public authority.
The amendment seems to imply that a person would be "getting away with it" if an acquittal were founded on that ground alone. It suggests that, unlike the many existing domestic freedoms already enjoyed by people in the United Kingdom, convention rights are not to be regarded as inherent rights. I disagree with that: they are supposed to part of our own law. We are giving access to convention rights as part of our own law on the same basis as laws that are dealt with by Strasbourg and subject to the appropriate derogations and reservations.
It is clear how the courts will approach a case in criminal proceedings in which convention points are raised. As a public authority, a court will be required not to act in a way that is incompatible with the convention. It will be unlawful for a court to give a judgment that is incompatible with a convention right, unless it is required to do so to give effect to a provision of primary legislation or a provision made under it.
The fact that, in a particular trial, a public authority is found to have acted unlawfully will not automatically lead to an acquittal. The nature of the act and its impact on the trial as a whole will have to be considered. If the effect of the act is such that, for example, a fair trial is 1108 impossible, an acquittal would be the appropriate outcome. That will not always follow; it will depend on the circumstances of the case. That is no different in principle from decisions that the courts already take—for example, when deciding whether to stay proceedings on the ground of abuse of process.
It would be quite wrong to attempt to interfere with the courts' discretion in these matters, as the amendment tries to do. In fact, the amendment seems to be misconceived, as it links unlawfulness with the making of a declaration of incompatibility. It implies that, in a criminal trial, there will be both an unlawful act by a public authority and an incompatible provision of legislation that attracts a declaration from the court. If the public authority were acting to give effect to that legislation, then, by virtue of clause 6(2), its act would be protected, and hence not unlawful. To put it the other way, if a public authority has acted unlawfully, it cannot have been acting so as to give effect to an incompatible provision of primary legislation or a provision made under it. No declaration of incompatibility would therefore arise.
There are some other difficulties, which may or may not have been intended by those who tabled the amendment. Magistrates courts and the Crown court do not have the power to make declarations of incompatibility. The amendment would therefore risk triggering a flood of appeals from those courts, as no defendant could be acquitted by them on the sole ground of an unlawful act by a public authority. That would clog up the court system for no good purpose, and would be contrary to our intention that all courts and tribunals should take account of convention rights.
The hon. and learned Member for Harborough (Mr. Gamier) referred to terrorists. An act covered by the derogation in schedule 2 is not an unlawful act for the purposes of the Bill, so it cannot form the basis of a finding that a public authority has acted unlawfully. The hon. and learned Gentleman asked me whether someone would the convention to found an acquittal. It would be used in the same way as the rules in the Police and Criminal Evidence Act 1984 and as any of the other provisions of natural justice.
We are giving each person in the United Kingdom the ability to access the rights they already have at Strasbourg. It all comes back to that point. The hon. and learned Gentleman seems to be suggesting that someone could be acquitted because that person was able to claim a convention right. That person would have the right to go to Strasbourg if we did not provide him with access to a decision in a domestic court. He would still have that right, but he would have to go to Strasbourg to access it.
The Bill is about access. We are enabling our courts to make decisions much more effectively and to take into account our jurisprudence. We are also ensuring that the Strasbourg court, when reaching decisions, is able to take into account the way in which we have developed our jurisprudence.
The Bill is beneficial, in that it establishes rights and ensures that procedures are properly followed. I understand why the hon. and learned Gentleman has tabled the amendment, but I suspect that, if proper methods of investigation are used, it is unlikely that new problems will be created. A claim in a British court that 1109 a particular method of collecting information was inappropriate could be raised in a Strasbourg court; the only difference is where one accesses one's rights. Some seem to think that our people should be able to access their rights only in Strasbourg. We think it best that such matters should be dealt with by our own courts in Britain.
§ Mr. Garnier
I asked the Minister some questions and he has answered them. I beg to ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Amendments made: No. 44, in page 5, leave out lines 19 to 39.
§ No. 126, in page 5, line 41, after 'court' insert `or tribunal'.
§ No. 127, in page 5, leave out lines 43 and 44.—[Mr. Mike O'Brien.]
§ Mr. Mike O'Brien
I beg to move amendment No. 128, in page 6, line 3, leave out from 'may' to end of line 9 and insert', to the extent he considers it necessary to ensure that the tribunal can provide an appropriate remedy in relation to an act (or proposed act) of a public authority which is (or would be) unlawful as a result of section 6(1), by order add to—
- (a) the relief or remedies which the tribunal may grant; or
- (b) the grounds on which it may grant any of them.'.
§ The Second Deputy Chairman of Ways and Means (Mr. Michael Lord)
With this it will be convenient to discuss the following amendments: No. 58, in page 6, line 5, leave out from 'rights' to end of line 8.
Government amendment No. 129.
§ Mr. O'Brien
I shall speak first to the two Government amendments, Nos. 128 and 129, and then to amendment No. 58 tabled by the Opposition, which, like amendment No. 128, is concerned with clause 7(13).
Amendment No. 128 clarifies the intended effect of the power in clause 7(13) to make an order in relation to tribunals. I shall explain both the purpose of that clause and the reason for the amendment.
The power conferred by clause 7(13) has been included to cater for situations in which the grounds on which proceedings may be brought before a tribunal are extremely narrowly defined, either by statute or by restrictive judicial interpretation of statutory provisions. In those rare cases, a tribunal would, unless its powers were suitably amplified, be precluded from determining issues relating to the convention rights. The issue that prompted the inclusion of clause 7(13) is the constraints placed on special adjudicators hearing appeals under the Asylum and Immigration Appeals Act 1993.
It was pointed out in another place that the terms of the 1993 Act are such that they would prevent a special adjudicator from hearing an asylum case from determining whether an appellant's removal from the United Kingdom would breach his convention rights when such appeals were dealt with.
Even without subsection (13), an individual would not be left without a remedy under the Human Rights Bill, as he would be able to rely on the convention rights in a subsequent application for judicial review. The better course is for him to rely on convention rights at the time 1110 the case is before the special adjudicator. Clause 7(13) would allow that result to be achieved. In addition, as it has been cast in general terms, it could also be used to benefit other tribunals in the same position as the special adjudicator.
There is, however, a risk that the current wording will be misinterpreted. In particular, there is a possibility that some might read it as implying that no tribunal will be able to take account of the convention rights unless and until a Minister makes an order under clause 7(13). The argument might run that, since no tribunals have in their parent statute express authority to determine convention questions or to grant remedies in respect of convention violations, tribunals may conclude that they are not to have regard to the convention rights without being given express authority to do so.
That is not our intention. The great majority of tribunals would not be debarred from having regard to the convention rights. It is an important principle of the Bill that they should do so. The amendment simply seeks to achieve the purpose of clause 7(13) in a way which does not lead to any misunderstanding on that score. It makes it clear that the power to make an order applies only where it is necessary to ensure that the tribunal in question can provide an appropriate remedy in respect of an unlawful act. I should add that, by virtue of clause 20(4), any order would need to be approved in draft by both Houses of Parliament.
One other change to clause 7(13) to which I wish to draw the attention of the Committee is the removal of the reference to a tribunal's "jurisdiction". On reflection, we consider that the meaning of the term in this context is unclear. That adjustment leads to a consequential change in the wording of clause 8(1) on remedies. Amendment No. 129 accordingly substitutes a reference to "powers" in place of "jurisdiction".
The Opposition's amendment No. 58 deletes paragraph (b) of clause 7(13) as it currently stands. That paragraph enables a Minister to make rules by order which give a tribunal jurisdictionto grant in respect of acts (or proposed acts) of public authorities which are (or would be) unlawful as a result of section 6(1) such relief or remedy' of a kind that it has power to grant".
I have already explained why the powers of a tribunal might need to be extended in some rare cases. The effect of amendment No. 58 would be to neuter those additional powers. It would still enable a tribunal to take account of convention points which it could otherwise not do, but it would not enable the tribunal to give practical effect to its determination. The remedies that the tribunal would usually be able to deploy, having reached its decision, would arise from the primary legislation governing it. It follows that, if a tribunal is to be able to grant a remedy, having determined a case involving a convention issue, specific provision needs to be made to do that. That is why we have put in place those changes.
I come now to the special adjudicators, and the Opposition's amendment, which involves an important point. The concern which prompted the inclusion of clause 7(13) was our wish to ensure that provision should be made to permit an appellant in an appeal under section 8 of the Asylum and Immigration Appeals Act 1993 to appeal also on the ground that the decision in question would be unlawful under section 6(1) of the Human Rights Act. As things stand, unless the appeal is a mixed appeal, the special adjudicator lacks the power to entertain that appeal. 1111 Clause 7(13) will enable the Secretary of State to confer power on the special adjudicator to consider claims relating to the convention rights, notwithstanding the restriction in the 1993 Act, and to provide a remedy if a public authority acts in a way that is incompatible with those rights. An appellant who succeeded in arguing that his removal from the United Kingdom would be unlawful under section 6(1) of the Human Rights Act would not be granted asylum, but would be irremovable from the United Kingdom and eligible for exceptional leave to remain.
The Opposition's amendment, by removing from clause 7(13) the scope to add to the remedies that a tribunal can grant, may in fact have a result which I imagine Opposition Members do not intend. It might require a special adjudicator to grant a successful appellant asylum even where his appeal was based on convention grounds, as the adjudicator would have no other remedy open to him.
Having explained the purpose behind clause 7(13), I hope that the Opposition will not press amendment No. 58, because I am not sure that it does what they think it does.
§ Mr. Garnier
The Minister teased me by suggesting that the Opposition had tabled an amendment that would not do what we intended. I yield to no one in my admiration of the Minister for his knowledge of asylum law. I do not suppose that any hon. Member knows more about it than he does; he has been on a steep learning curve. In his previous existence as a practising solicitor, he might have done quite a lot of asylum work—
§ Mr. Garnier
My admiration for the hon. Gentleman is all the greater for that. If there is one aspect of the law that I would wish to keep well clear of it is asylum law.
I found the Minister's explanation of Government amendment No. 128 extremely helpful. I can say without equivocation that we agree with Government amendment No. 129. It is a sensible amendment, with which it would be sensible to agree.
The Opposition had thought that amendment No. 58 was clear, less wordy, and within the spirit of the clause and Government amendment No. 128. However, having heard the Minister's explanation of Government amendment No. 128, I am content to allow it to be substituted for ours. The Minister's reasons for it were understood by me as a layman in this context, and sensible in their intent and purpose.
§ Amendment agreed to.
§ Clause 7, as amended, ordered to stand part of the Bill.