European Commission of Human Rights: Appeal Costs (Hansard, 15 December 1982)

HL Deb 15 December 1982 vol 437 cc598-601 598

§ 2.51 p.m.

Viscount De L'Isle
My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.

§ The Question was as follows:

§ To ask Her Majesty's Government why they appealed against the opinion of the European Commission of Human Rights, which was in favour of three dismissed railway workers, given on 11th November 1979, despite the fact that this opinion is in accordance with declared Government policy and Section 2 of the Employment Act 1982; what was the cost to public funds of this unsuccessful appeal; and whether the unpaid costs of approximately £40,000 due from the railwaymen will be reimbursed from public funds.

The Minister of State, Ministry of Agriculture, Fisheries and Food (Earl Ferrers)
My Lords. Her Majesty's Government did not appeal against the opinion of the European Commission of Human Rights. It was the Commission itself which referred the case to the European Court of Human Rights under Articles 44 and 48(a) of the European Convention on Human Rights.
It is estimated that the total costs which have been incurred by the Government as a result of this case since 1976, other than the cost of the time of the Government's Law Officers and officials, amount to approximately £17,000. The court awarded a total of some £81,000 to the three railwaymen for material loss and a further £65,000 for the legal costs. These were the maximum legal costs which the court judged to have been necessarily incurred and reasonable in amount. The Government could not justify the expenditure of public funds in paying costs in excess of that which the court ordered. To do so would set a very dangerous precedent.

Viscount De L'Isle
My Lords, while thanking my noble friend for his reply, may I point out to him—

Several noble Lords
No! Question!

Viscount De L'Isle
May I ask my noble friend why the Government did not accept the opinion of the Commission and reach a friendly settlement on that 599 basis as part of the machinery of the whole operation of the European Convention? Having failed to offer a friendly settlement, does he not think that at least the extra legal costs inflicted on the applicants by Her Majesty's Government's unnecessary resort to the court should at least be met out of public funds?

Earl Ferrers
My Lords, I must point out to my noble friend that it was the Commission and not the Government which took the case to the court. Once the case was before the court the Government had a duty to make their position clear. My noble friend asks why a friendly settlement was not arrived at. There were attempts to arrive at a friendly settlement, and during those attempts the Government offered to refer the issue of costs to a taxing master, to pay the costs incurred by referring the matter to the taxing master and to abide by the taxing master's decision, but the lawers of the railwaymen did not approve of that position.

§ Lord Renton
My Lords, why did not the Government submit to judgment after the European Commission had given its opinion, especially bearing in mind that the court has never yet overruled the Commission? Why did the Government muster the forces of the Treasury Solicitor, the Law Officers, the Foreign Office and the Department of Employment to argue against the declared principles of the Conservative Government? Is it right that these three railwaymen should be heavily out of pocket, as indeed they are, after winning their case in support of Government policy?

Earl Ferrers
My Lords, I must make it perfectly plain to my noble friend that the Government have always taken the view that the position in which the railwaymen were put by the 1976 Act was totally obnoxious, and that is why we took the first opportunity to alter the position under the Employment Act 1980. When my noble friend asks why we did not submit to the opinion, I can only remind him that the Commission, having given an opinion, decided to take that to the European Court. Once the case was taken to the European Court the Government had to make their position clear.
There are three points of importance which the Government wished to make clear. First, the Government considered it essential to establish that the Government themselves were not responsible as an employer under the convention simply because British Railways is a nationalised industry. Secondly, the Government thought it important that the Commission should consider whether the closed shop system as such was in breach of the convention. Thirdly, the Government had to make clear that the changes which they were making to the law on the closed shop would prevent injustices of this nature in the future.

§ Lord McCarthy
My Lords, would the noble Earl not agree, in the light of all that has happened, and particularly in the light of what he has just said about the need to clarify the legal position, that it was very unwise of the Government to withdraw the defence put in before the Commission and in pleadings by the previous Government? That is to say, the defence 600 which relates to paragraph 2 of Article 11, which stipulates that it is a defence if it can be shown that the acts complained of were necessary in a democratic society to protect the rights of others. But in fact, as we know, the Government did not put in that defence, and therefore we still do not know what the position is exactly.

Earl Ferrers
My Lords, if there was any unwisdom it was on behalf of the previous Government of noble Lords opposite, which introduced an Act which put people in the United Kingdom in the position of being unable to abide by their human rights. That was the situation we wished to see reversed, and that is what we did.

§ Lord Boyd-Carpenter
My Lords, can my noble friend confirm why it was that counsel instructed by the Government appeared to have argued that these railwaymen had not been treated in a manner which was contrary to the Convention on Human Rights?

Earl Ferrers
My Lords, it was the duty of the Government and their lawyers to pursue the three very important points which I explained in order to make the position perfectly clear, and that is what they did.

§ Lord Shinwell
My Lords, although it may not be related to the main Question, will the noble Earl inform me and Members of your Lordships' House who perhaps may not know anything about the matter, which is the enactment? When was there passed in either House of Parliament an enactment, which justified the European Commission of Human Rights in awarding costs?

Earl Ferrers
My Lords, the European Court asked the European Commission to adjudicate and give an opinion upon costs. When the Commission gave an opinion it was then taken to the court to give a judgment, and the court's judgment was in line with the Commission's opinion.

§ Lord Shinwell
My Lords, if I may follow that up for a moment, does that mean that neither House of Parliament at any time passed an enactment which justified the European Commission in awarding costs?

Earl Ferrers
My Lords, Article 50 of the European Convention makes the United Kingdom liable for costs if it loses a case.

§ Lord Campbell of Alloway
My Lords, reverting to the Question, is my noble friend the Minister aware of any circumstance in these cases which would justify any departure from the established practice of taxation under which a litigant, although successful, obtains of the order of two-thirds of his costs, which I understand (if I may ask) was so in this case?

Earl Ferrers
My Lords, clearly each case has to be judged on its merits, but my understanding is that in cases in this country it is almost unheard of for a successful litigant to recover 100 per cent. of his costs, and often, but by no means always, the figure turns out to be around two-thirds. I would re-emphasise what the European Court said in its recent judgment on 601 costs; namely, that applicants should not encounter undue financial difficulties in bringing complaints under the convention, and that it expected that the lawyers in contracting states would co-operate to this end in the fixing of their fees. That is why my right honourable friend the Secretary of State for Employment has publicly asked the applicants' lawyers to honour the spirit of the court's judgment.

§ Lord Annan
My Lords, did not the lawyers in fact do precisely the opposite, and increase the costs which the railwaymen had to bear?

Earl Ferrers
My Lords, I think it would be most inappropriate for me to make a comment on what the legal costs were, and how they moved.

§ Lord Wedderburn of Charlton
My Lords, may I ask the Minister to explain to the House how the Government's ambition to clarify the interpretation of the convention—which I am sure your Lordships would share—is consistent with the express withdrawal by this Administration of a defence which is clearly open to a country and which was put into the pleadings by the previous Government, to which my noble friend referred? How is a desire so to clarify consistent with withdrawing such a defence, leaving the court to say, as it did, a few words on the matter but having to leave it open because there had been a lack of legal argument?

Earl Ferrers
My Lords, I do not think it is helpful to go into all the reasons why lawyers took certain views. I would tell the noble Lord that had the previous Government not enacted a piece of legislation which put members of this country against the European Convention on Human Rights, this case would never have been brought; and had it been dealt with expeditiously, as it should have been, under the Labour Government, it would not have taken the course which it has taken now. But the satisfactory part is that the people concerned had their case vindicated and material costs of £81,000 awarded to them, and they have had a large proportion of their costs paid.