Human Rights Bill [H.L.]

HL Deb 18 November 1997 vol 583 cc533-62

House again in Committee.

Clause 3[Legislation]:

Lord Kingsland moved Amendment No. 15: Page 2, line 23, leave out ("possible") and insert ("reasonable").

The noble Lord said: I can put the point that lies behind this amendment simply. It relates to the debate on the previous amendment. The noble and learned Lord may well take the view, having heard me, that he has already responded adequately. The point is simply this: is Clause 3(1) intended to be a reflection or an extension of the common law rules of statutory interpretation? I believe that 1 need add nothing further to my question. I beg to move.

Lord Cooke of Thorndon

The noble Lord, Lord Lester of Herne Hill, earlier in Committee, mentioned the New Zealand Act. As Clause 3 is the corresponding provision of the United Kingdom Bill, it seems appropriate to say just a word or two comparing the two.

One appreciates that, as the noble Lord, Lord Kingsland, has perhaps suggested, Clause 3(1) of the Bill definitely goes further than the existing common law rules of statutory interpretation, because it enjoins a search for possible meanings as distinct from the true meaning—which has been the traditional approach in the matter of statutory interpretation in the courts.

The difference is not as huge as might be thought at first sight. Even under the New Zealand corresponding provision, the courts have said that the kind of interpretation now enjoined is not a strained interpretation; it is one that is fairly possible. I suspect that the very strength of the clause, as it is now worded, may have been of material assistance to the noble and learned Lord the Lord Chancellor in forming the view which he expressed at Second Reading that declarations of incompatibility would be rare.

The corresponding New Zealand provision is in different language and in some respects the United Kingdom proposed provision may be slightly wider. I shall read the two provisions. It seems to me that in substance in the important matters there is no difference. The New Zealand provision is Section 6 of the New Zealand Bill of Rights Act 1990. It provides: Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall he preferred to any other meaning". The United Kingdom Bill provides that: So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights". The words, must he read and given effect", may arguably be slightly wider than the New Zealand words, although I doubt that. What is much more important is that both provisions contain strong mandatory words. In the New Zealand provision those words are "can" and "shall"; in the United Kingdom provision, as proposed, the words are "possible" and "must". It is manifest that any dilution—I avoid the word "wrecking"—any watering down of the strength of the United Kingdom provision, as contained in the Bill, will strike at its very heart. I suggest that Clause 3(1) is a key provision in the proposed legislation, possibly even the most important provision.

In this country the New Zealand Bill of Rights is sometimes stigmatised as weak. That is not necessarily so when its interpretation is in judicial hands; but it would be a sad state of affairs if, when the New Zealand provision is criticised in that way and it is widely urged that the United Kingdom Bill is not strong enough, the United Kingdom Parliament were to enact a measure more timid than, or a weaker version of, the New Zealand Bill. That would be an extraordinary result of the long consideration and the long gestation which the United Kingdom Bill has undergone. I respectfully urge the Committee and the Government not to be persuaded to do anything to weaken Clause 3(1).

Lord Lester of Herne Hill

The speech made by the noble Lord, Lord Kingsland, seemed in inverse proportion to his enthusiasm for the amendment. He spoke with extraordinary brevity on an amendment of great importance.

It gives me great pleasure to follow the noble and learned Lord, Lord Cooke of Thorndon, and I should like to add a few words of agreement. If one looks across the Commonwealth, including the dependent territories, to the constitutional Bills of Rights which incorporate the European Convention into domestic law in Africa and the Caribbean, in Bermuda and in Hong Kong before and after the resumption of sovereignty of the People's Republic of China, one finds in all those jurisdictions (except New Zealand) that the courts are given aggressive power to strike down inconsistent legislation. However, the Government have chosen not to adopt that course for reasons that I understand and support as long as all that we are engaged in is giving domestic effect to the European convention rather than creating a full constitutional Bill of Rights of our own, which I hope will occur one day in my lifetime.

If one looks across the Commonwealth, one finds that the weakest form of a Bill of Rights is, as the noble and learned Lord indicated, the so-called New Zealand model. As far as I am concerned, the command to the judges as far as possible to construe legislation in conformity with convention rights is an elegant way of reconciling sovereignty with effective judicial remedies.

If one were to adopt the amendment and seek instead only a "reasonable" interpretation, we would be close to the current principles of interpretation which are already applied in an unincorporated convention since the courts already construe existing legislation on the basis that Parliament intends to conform to the convention in exercising legislative power and therefore ambiguities or manifest absurdities are to be dealt with by having recourse to the convention where reasonably possible.

My view is that the Government are right in seeking to adopt a stronger command to the judges in order to reduce the mismatch and the need for declarations of incompatibilities, for the reasons raised in the previous debate. At first sight, nothing could seem more reasonable than to say to the judges, "Adopt an interpretation if you reasonably can" rather than, "if you possibly can". One can imagine a jurisprudence seminar lasting several hours examining the merits of both views in terms of the three branches of our government. However, if one of the main aims of the Bill is to secure speedy and effective domestic remedies for violations of the convention and to put our courts as far as possible in the same position as the European Court of Human Rights so that recourse to the European judges is kept to the minimum, it seems to me that Clause 3(1) as it stands is the right approach. Speaking for myself, if there were to be any dilution of Clause 3(1), I would cease to be a friend of the Bill.

8.45 p.m.

The Lord Chancellor

I do not desire to be unkind to the noble Lord, Lord Kingsland, the difficulty of whose position I well understand, but it is incumbent on him to explain to the Committee what his amendment would mean rather than ask me a question about whether the Bill is a departure from ordinary principles of construction. However. I leave that and assist the Committee as best I can.

We want the courts to strive to find an interpretation of legislation which is consistent with convention rights so far as the language of the legislation allows and only in the last resort to conclude that the legislation is simply incompatible with them. I have to speculate about the purpose of the amendment, but it would appear to reflect a desire to have the courts stop some way short of that point as far as interpretation is concerned, which means that they would arrive at more, rather than fewer, conclusions that the legislation is incompatible with the convention. Speaking for myself, I cannot see what is gained by that objective. Our position is that the courts should apply the law and not make it and that they should not be dragged into the area of opinion or into judgment of a political character perhaps to a greater or lesser extent.

The word "possible" is the plainest means that we can devise for simply asking the courts to find the construction consistent with the intentions of Parliament and the wording of legislation which is nearest to the convention rights. On the other hand, "reasonable" is an evaluative criterion and the proponents of the amendment do not offer us any guidance as to what the criteria might be.

All I need say in resisting this amendment is that we want the courts to construe statutes so that they bear a meaning that is consistent with the convention whenever that is possible according to the language of the statutes but not when it is impossible to achieve that. More generally, we proceed on the basis that Parliament, at least post-ratification of the convention, must be deemed to have intended its statutes to be compatible with the convention to which the United Kingdom is bound, and that courts should hold that that deemed general intention has not been carried successfully into effect only where it is impossible to construe a statute as having that effect. This seems to me to be a sensible principle and is consistent both with Parliament's presumed intention post-ratification and with ministerial statements of compatibility, when they come to be made, under Clause 19 of the Bill. If this amendment were agreed to, the only intention that I could divine behind it would be to maximise rather than minimise declarations of incompatibility which would tend to bring the statute book into unnecessary disrepute. For those reasons, I am not persuaded by the amendment.

Lord Simon of Glaisdale

This clause departs from ordinary rules of construction, and to my mind does so rightly. However, I do not agree with my noble and learned friend in his objection to the very use of the word "reasonable". That word is used every day in the courts and is a perfectly well understood standard. It is the standard of the ordinary man in the street. I believe that the reason that the noble Lord, Lord Kingsland, prefers "reasonable" to "possible" is that the latter may be taken to include what is fanciful, but I do not believe that it is necessary for that purpose. Judges do not take account of fanciful considerations. I prefer "reasonably possible". I do not suppose that my noble and learned friend will for a moment consider that because it interferes with the language that is written down in tablets of stone.

As I understand it, the ordinary rule is that the courts endeavour to get at the meaning of the words that Parliament has used, not the words that Parliament meant to use. That was the Nazi rule of construction in the name of the Reich. In a statute like this, which is meant for ordinary people, first they try to find the ordinary sense of the word. That is known as the golden rule of interpretation. They do that by considering the ordinary meaning of the words in their context. Their context includes the objective of the statute. But sometimes the ordinary meaning even in context leads to something unjust, anomalous, contradictory or ambiguous. The courts then say that Parliament cannot have meant such a thing.

They look then at secondary meanings and have various rules to help them. One rule which is relevant to this clause is that they endeavour to find a secondary meaning which accords with international law. But this provision goes further. It says that they must look not only for a secondary meaning but for a possible meaning. I apprehend that the noble Lord, Lord Kingsland, fears that that may lead to a fanciful meaning. I do not believe that it would. I believe that the words will be construed by the courts as meaning "reasonably possible". Even though any change in the wording rises in the gorge of my noble and learned friend, I believe that that is how judges will interpret those words. It means that the provision goes further than the existing rules of interpretation, but so be it. My noble and learned friend has given reasons why that should be so, and I presume to agree with them.

Lord Campbell of Alloway

If this is to be interpreted by the Bench as "reasonably possible", as will obviously be the case, what are we worrying about?

Lord Kingsland

I am sorry that the noble and learned Lord fails to understand the aim of this amendment. I thought that my opening explanation had made it crystal clear. The intention was to find out whether or not the Bill proposed a form of interpretation by the judges which went beyond the common law rules. It is quite clear both from the reply of the noble and learned Lord and the subsequent debate that that is what is proposed. I am perfectly happy to learn that and will reflect upon it. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 16 not moved.]

Lord Simon of Glaisdale had given notice of his intention to move Amendment No. 17: Page 2. leave out lines 29 to 34.

The noble and learned Lord said: I believe that my noble and learned friend dealt with this matter in answer to an earlier debate. In those circumstances, I do not intend to move the amendment.

[Amendment No.17 not moved.]

On Question, Whether Clause 3 shall stand part of the Bill?

Lord Mackay of Drumadoon

We have given notice of our intention to oppose this Question for the sole purpose of seeking from the Government an undertaking that, before the Bill reaches Report stage, the devolution Bills for Scotland and Wales are published. That will enable your Lordships to scrutinise the provisions of this Bill against the provisions of those two major constitutional Bills that we await with interest.

This evening I have listened with a measure of fascination to the noble and learned Lord the Lord Chancellor explaining the scheme of the Bill and the interpretative approach. I shall read again tomorrow with interest what he said. He observed at one stage that that may be the reason that the Bill has been welcomed by the higher judiciary. I am sorry to disappoint the noble and learned Lord the Lord Chancellor. It may be that the higher judiciary north of the Border are not quite so fulsome in their welcome of this legislation, as may be evidenced by the speech made at Second Reading by the noble and learned Lord, Lord McCluskey. One possible explanation for that is that when the Scottish judges scrutinise Acts of the Scottish parliament against the provisions of the Bill they will require to follow a different approach from that in relation to Acts of this Parliament.

For those reasons, I believe that it is essential that we have this undertaking. I anticipate no difficulty in it being given. Having heard it, I shall be happy to withdraw opposition to the Motion.

9 p.m.

The Lord Chancellor

I am not in a position to give any undertaking about the timing of the publication of the devolution Bill.

Baroness Carnegy of Lour

In view of the comment in the White Paper that the approach will be different in Scotland, it seems impossible that we should pass this legislation through this House without knowing what that difference is. As I understand it, there is no mention of those differences in the Bill at present. Some assurance would surely be essential to us.

Lord Campbell of Alloway

Although I am not qualified in Scots law, I am a Scot and have interests in Scotland. I wholly support the objections made by my noble friends. I beg that they be met, answered and taken seriously.

Lord Lester of Herne Hill

I do not understand the problem. It is true that the Scottish courts have so far been somewhat behind the English courts in giving domestic effect to the European Convention on Human Rights. One looks in vain in Scottish jurisprudence for as strong an interpretation of the convention as has been given by the English courts. But that is not the point of the Question, although it is fair to say that one effect of the Bill will be to ensure an even application of the convention domestically throughout the whole kingdom. I welcome that since these international obligations apply throughout the territory of the United Kingdom.

However, what I do not understand is this. When we have a devolved Scottish parliament, as was made clear during the Second Reading debate, that parliament, any Welsh senate, English regional assembly, Northern Irish parliament or other public authority exercising legislative or executive powers as a subordinate body will be bound as a public authority by the convention, both under international law and this Bill when it becomes a statute. Our courts, north and south of the Border will have the duty of ensuring full compliance by all subordinate legislative and executive bodies with the requirements of the convention. That is wholly unaffected by the devolution legislation since whatever form it takes we can be completely sure that any Scottish parliament will have to obey the international legal obligations that are binding already in international law and will become binding in domestic law under the Bill. Therefore I fail to perceive any further problem which should give rise to difficulty under Clause 3 or any other provision of the Bill.

The Lord Chancellor

Perhaps I may—

Baroness Carnegy of Lour

I am grateful to the noble and learned Lord the Lord Chancellor. As a humble layman I probably should not intervene. However, I refer the noble and learned Lord to paragraphs 2.20 and 2.21 of the White Paper. They do not describe the situation such as was described by the noble Lord, Lord Lester of Herne Hill. The Scottish parliament will be a legislative body. If the White Paper is to be followed, it will produce legislation which will become law by ensuring that it is ultra vires. Therefore it has a different status to the Westminster Parliament.

I did not dare speak at Second Reading. I had thought that this issue would be amplified by everyone, but it was not. I was anxious about it. I wish to know—I am sure many distinguished lawyers in Scotland want to know—exactly how this will be achieved in the devolution Bill.

The Lord Chancellor

I was about to come to paragraphs 2.20 and 2.21 of the White Paper when I gave way to the noble Baroness who, as a layman, should never be inhibited in the presence of lawyers and who, in my long experience of her, never is.

The position is this. I am relying of course on the White Paper. I am not anticipating the provisions of the Bill which is not yet published. Nor am I suggesting or implying that there will be any departure in principle by the Bill from the White Paper. As regards the issues that we are addressing in Committee this evening, in relation to the European convention the powers of the courts in Scotland will be exactly the same as the powers of the English courts. That is what one would expect. All courts, whether Scottish or English, will be required to interpret the legislation in a way which, so far as possible, is compatible with the convention. If a provision is found to be incompatible with the convention, just as the courts in England at the relevant high level will be enabled to make a declaration of incompatibility, so also will the Scots courts, except that they will call it a declarator of incompatibility—and good luck to them! In Scotland it is a declarator. Exactly the same applies in Scotland as in England so far as concerns this Bill.

We now move to an entirely separate question: whether or not the Scottish parliament, if it acts incompatibly with the European convention, will act ultra vires. One of two views would have been possible. One could equate it with the English, or Westminster, Parliament and take the view that to provide a remedy for a court-made declaration of incompatibility should be for the Scottish parliament. That is the view that has been taken for the Westminster Parliament.

However, the Scottish parliament will exercise devolved powers. It is therefore well within the entitlement of the United Kingdom Parliament, when devolving powers to Scotland, to hold that any Act of the Scottish parliament which is incompatible with the convention is ultra vires. The Scottish parliament is not sovereign in the sense that the Westminster Parliament is. As the noble Baroness knows, having read paragraph 2.21 of the White Paper, compatibility with the convention is heralded by that paragraph as a vires issue and therefore that is what she should anticipate the Bill will provide when it is published. I cannot undertake that it will be published before the Report stage of this Bill and I do not do so. There is every expectation that it will be published before the year end, on time.

Lord Meston

Does it follow from what the noble and learned Lord has been saying, without committing the Government in any way, that it is likely that the Scottish parliament, the Welsh assembly and whatever may arise in Northern Ireland will be given a procedure similar to that given by Clause 12 to effect a fast-track remedy of any incompatibility?

The Lord Chancellor

I do not desire to go further than I have in fairly responding to questions which go more to the content of the devolution Bills than they go to the issue of whether this clause shall stand part.

Lord Mackay of Drumadoon

I regret that the noble and learned Lord has not been able to give the undertaking that I sought. It was not an undertaking as to when the devolution Bills will be published; it was an undertaking that your Lordships' House will not be passed to the Report stage of this Bill until those major constitutional Bills have been seen.

I fully understand the legal logic of the position, as explained by the noble and learned Lord tonight, as I fully understood the logic of what was said by the noble Lord, Lord Williams of Mostyn, on Second Reading. At paragraph 2.13 of the White Paper the Government indicate that one of the reasons they have chosen such a route in relation to Acts of this Parliament is that to do otherwise would be likely on occasions to draw the judiciary into serious conflict with Parliament. As a result, there is a concern in Scotland, which is shared by lawyers and non-lawyers alike, that the man on the street will not fully understand why Scottish judges have the right to strike down Acts of the Scottish parliament but not Acts of this Parliament.

The situation will be accentuated when Scottish courts come to consider statutory provisions which have originated in this House as a section of an Act of this Parliament and have been amended by an Act of the Scottish parliament so that the statutory provision under scrutiny will be partly passed by this Parliament and partly passed by the Scottish parliament. As I understand the legal logic, the Scottish courts will have the right to strike down part of the section but no such right in relation to the other part—

Lord Lester of Herne Hill

I am grateful to the noble and learned Lord for giving way. From the way in which he is developing his argument, I am not clear whether the position of his party is that the Scottish parliament should exercise sovereignty in the same way as the Westminster Parliament so that its legislative Acts will be beyond judicial scrutiny where they breach the international obligations imposed on the United Kingdom as a whole. If that is not his position I do not follow the conclusion which he is arguing towards.

Lord Mackay of Drumadoon

The noble Lord will forgive me if, like the noble and learned Lord the Lord Chancellor, I do not anticipate what is in the devolution Bill. I wish to see the devolution Bill before this Bill moves towards the next stage of consideration in this Chamber. On any view, this Bill is a major piece of constitutional legislation. Indeed, at a dinner I attended last week I heard the noble and learned Lord, Lord Rodger of Earlsferry, saying that in his opinion this Bill was likely to have a greater impact on the Scottish courts, at least in the first few years, than the devolution Bill. If he is correct in that assessment, it is incumbent upon your Lordships to consider the matter.

The noble Lord, Lord Lester, referred to the Scottish courts as being somewhat behind their English counterparts in these matters. I venture to suggest that some people in Scotland might take the view that there was a measure of value in being slightly behind and that it would be wrong to criticise different attitudes in Scotland, particularly when Scotland is about to be faced with major constitutional legislation. On further reflection, it may be that the means by which it is decided when Report stage is to take place is through the usual channels rather than seeking to test the opinion of the Committee on a matter of this importance. On that understanding, I should like to make it extremely clear that I am disappointed that the noble and learned Lord the Lord Chancellor has not been able to give the undertaking that I seek, and I beg leave to withdraw my opposition to the Question.

Lord Campbell of Alloway

In view of the recent intervention of the noble Lord, Lord Lester of Herne Hill, whatever may be the policy of the party to which I adhere, it is wholly irrelevant to the question we are discussing. It goes far beyond that. It is a matter of substance that warrants sympathetic consideration.

Clause 3 agreed to.

Clause 4 [Declaration of incompatibility]:

[Amendment No. 18 not moved.]

9.15 p.m.

Lord Campbell of Alloway moved Amendment No. 19: Page 2, line 36, leave out ("primary").

The noble Lord said: I beg to move Amendment No. 19 and to speak to Amendment No. 21 which is grouped with it, and which I shall move formally in due course.

I shall also refer to Amendment No. 73 to Clause 10(1)(a), which will not be debated today but which is triggered by these amendments to Clause 4. At Second Reading the noble Lord, Lord Williams of Mostyn, asked my noble friend Lord Henley a fairly reasonable question as to where we stood on policy. He did not receive an entirely categoric reply and assuredly I, on the third row of these Back Benches, am not in the position to give one. However, I think that the noble Lord, Lord Williams, is entitled to know, as indeed is the noble and learned Lord the Lord Chancellor, where I personally stand before I address your Lordships on what to me is a matter of considerable consequence.

I stand behind the principle of incorporation, as referred to at page 35 of the manifesto and as expressed by the noble and learned Lord the Lord Chancellor today. That is where I stand. But the means proposed of remedial action under Clauses 10 to 12, triggered by Clause 4, are utterly rejected as a novel, unnecessary and unconstitutional fast-track procedure which any authoritarian government might wish to resolve.

It is not the intention to pre-empt discussion on these amendments to Clauses 10 to 12 or as to whether those clauses stand part. However, Amendment No. 73 to Clauses 10 to 12 lies at the heart of the discussion of these amendments which I move today. It is very short; it is in plain English and therefore obviously defective; and has been drafted by me. If your Lordships would allow me, it should read as follows:

"Page 6, line 16, leave out subsections (2) to (5) and insert— ('( )If a Minister of the Crown considers that, in order to remove incompatibility it is appropriate that legislation should be amended, he may—

1. (a) as regards primary legislation, introduce an amendment bill in either House of Parliament; and
542
2. (b) as regards subordinate legislation, make a draft order containing the proposed amendments, which order shall he laid before Parliament and subject to approval by resolution of each liouse.')"

Assimilation of a convention into English law is no simple, straightforward process to be achieved by judicial declaration without resort to the parliamentary process, a process as it applies respectively to primary and secondary legislation.

I turn to the amendments. Amendment No. 19, which, again, is produced in fairly simple English, and again is probably equally effective, states "leave out ('primary')". The effect of that is quite simply, if one looks at Clause 4, to say: Subsection (2) applies in any proceedings in which a court determines whether a provision of legislation is compatible with one or more of the Convention rights.

That means primary or secondary legislation.

Amendment No. 21 says, leave out subsections (3) and (4)".

Thus, I read on: If the court is satisfied that the provision is incompatible with one or more of the Convention rights, it may make a declaration of that incompatibility".

Could anything be simpler? It reflects the extant position by which we deal with such matters, by convention for I do not know how long but by tradition for about 300 years; and it has not served us too badly.

I ask your Lordships to accept that those amendments to Clause 4, to which I have spoken, do not foreclose in any way on the remedial action as proposed under Clauses 10 to 12, with which I most heartily disagree. But they afford a measure of flexibility to enable amendments to Clauses 10 to 12, including the amendment in my name to which I have referred—Amendment No. 73—to be debated on their merits.

As to that, the Committee has the advice of the Select Committee at paragraphs 22 to 25 of the 6th report in context with the Henry VIII taint to the proposed procedure. The Committee may wish to consider in context with these amendments to which I speak whether it really is acceptable that, on the basis of mere judicial declaration, it is appropriate that on the say-so of a Minister of the Crown, primary legislation should be amended by order in council—because, if I am not mistaken, that is what is proposed—and that subsidiary legislation should be amended without the affirmation of both Houses of Parliament. I always keep the Labour manifesto with me; I have it on the seat here. I always read it for every debate in which I speak because it is the basis of policy. Policy is a matter for the Government and not for the Opposition. I always start with the Labour policy in the manifesto and then—I do not want to be unkind about it—see where we get to.

There was no reference in the manifesto, at page 35, as to these proposed means of implementation of the principle under Clauses 4, 10 and 12. It is a novel regime which is totally in violation of the doctrine of the separation of powers as between Parliament and the judiciary. There seems to be a sort of impression that a manifesto confers a blank cheque. However, it does not. It confers no blank cheque on our elected representatives to change the constitution unless such means of change, and means of implementation of the principle, have been put before the electorate, which they have not. Therefore, as regards this provision or my Amendment No. 73—which I shall have considerably more to say about when we reach it than I have today, unless we are discussing it at about this time of night—the Salisbury Convention cannot apply.

In conclusion, it is of crucial consequence to understand that these amendments to Clause 4, which affect remedial action under Clauses 10 to 12, are in a sense inconsistent with Clauses 10 to 12. The point is that whatever the position of inconsistency may be, that should not be prayed in aid by retaining Clause 4 as it stands, which inhibits or could pre-empt the discussion on subsequent amendments. Such is the spirit in which I move the amendment. I beg to move.

Lord Henley

I intervene briefly to say that like my noble friend I expect we shall have much more to say about his Amendment No. 73 and our Amendment No. 85 when we reach them at some later occasion, at, I hope, a better time of night than is the case at the moment. My noble friend makes a good point. These are important issues and they are issues that have been referred to by the Delegated Powers Scrutiny Committee. All I require from the Government when they respond is an assurance from them that, when they look at the recommendations of the Delegated Powers Scrutiny Committee, they will abide by the recommendations that the Delegated Powers Scrutiny Committee has made, just as we always abided by them when we were in government, as we were always recommended to do by noble Lords opposite when they were in opposition.

Lord Lester of Herne Hill

The Committee of course is not dealing in these amendments with the remedial powers of Parliament and the recommendations of the Delegated Powers Scrutiny Committee, with which I, respectfully, do not wholly agree. However, that is for another occasion. With these amendments the Committee is concerned solely with what the judicial branch of government has to do in relation to declarations of incompatibility, not what Parliament has to do, and how it is to do it.

I do not understand what the fuss is about. Clause 4, as it stands, empowers the courts to grant declarations of incompatibility in relation to primary legislation, which the amendment would seek to turn into any legislation, not just primary legislation. It then provides, in relation to subordinate legislation, that if the parent statute cannot be construed compatibly with the convention rights, the courts may so declare. What then happens as a consequence comes later in the Bill when Parliament seeks to put right the mismatch.

I wholly fail to understand what is wrong in the eyes of the noble Lord, Lord Campbell of Alloway, with the power of the courts to grant declarations of incompatibility where the parent statute requires subordinate legislation, and cannot be read any other way, and would breach the convention. It therefore seems to me that this is—if I may be forgiven the phrase—truly an emasculating amendment which would destroy one of the main purposes of the Bill. I am therefore strongly opposed to it.

9.30 p.m.

Lord Campbell of Alloway

Let us suppose that the noble Lord is right. With respect to him, I think that he has failed to understand—perhaps it is a bit late—what I was saying. Perhaps the late hour made it difficult for me to explain it. He has misconceived and totally misconstrued what I said. Let us assume that he is right. Either Clause 4 as it stands does not preclude the type of amendment and discussion to which I have referred, or it does. If it does not preclude such a discussion—I am satisfied that subsections (3) and (4) do—so be it. But at least I wish it to be understood that if, as my noble friend Lord Henley said a moment ago, we can reach a suitable accommodation at this hour in the form of an assurance, I do not have to waste the Committee's time in seeking to convince the noble Lord, Lord Lester of Herne Hill.

The Lord Chancellor

The noble Lord, Lord Campbell of Alloway, said that the position in principle of his party might not be relevant to our discussions this evening. I am, in principle, minded to agree with that, as with many other discussions in which we might engage this evening or any other evening. At one point he appeared to be protesting at the simple English of the provisions. That appears to me to be their principal virtue. I was pleased to hear of the respect in which he holds the Labour Party manifesto. I am delighted to hear that it is his vade mecum. It is, after all, an exemplar of how to win elections, and on our compliance with it we shall be judged, and are happy to be judged, at the next general election.

The position simply is that at present subordinate legislation may be struck down by the courts on the same grounds as in the case of other forms of administrative action. That is most commonly on vires grounds, but also on procedural grounds where a mandatory provision for making the subordinate legislation has not been complied with or, less commonly, on the ground that a discretion has been exercised unreasonably or irrationally.

Clause 6(1) of the Bill, by making it unlawful for a public authority to act in a manner inconsistent with the convention rights, will make it unlawful for a Minister to exercise a power to make subordinate legislation so as to make provision which is incompatible with the convention. However, subordinate legislation which is incompatible with the convention rights will thus become susceptible to challenge on vires grounds in the ordinary way. These provisions deal essentially with a situation where subordinate legislation is incompatible with the convention because that incompatibility has been dictated by the terms of parent legislation which is in itself incompatible.

The problem with Amendments Nos. 19 and 21 tabled by the noble Lord is that they would apply subsections (1) and (2) to both primary and subordinate legislation and would delete subsections (3) and (4). The effect of the amendments might well therefore be to allow the courts to make declarations of incompatibility in relation to subordinate legislation which is not inevitably incompatible. That power, however, is simply not required in these cases because the courts have available to them their ordinary powers to quash or set aside subordinate legislation. The power to make a declaration of incompatibility should be, and is, reserved for those cases where it is needed because the courts have no power to do anything else. The subordinate legislation is necessarily incompatible because the parent legislation causes it to be so. The rational outcome, therefore, is that both the parent and the subordinate legislation are subject to a declaration of incompatibility.

My noble friend Lord Campbell of Alloway is concerned about the fate of his Amendment No. 73. We shall have our debate on that amendment on another day. The noble Lord, Lord Henley, invites me to say that I agree here and now to abide by the recommendations of the Delegated Powers and Deregulation Committee. That is a matter that we shall address in its due time, which is not now. We are not now dealing with the remedial powers conferred upon Parliament where courts have made declarations of incompatibility. We shall have all these debates, but in their due time.

Lord Campbell of Alloway

I am grateful to the noble and learned Lord for the courteous way in which he dealt with this amendment, and for the great consideration given to it in the brief from which he was reading. He will forgive me if I could not quite take and understand everything that was said. However, I appreciate that it was prepared with great care and I am grateful for that consideration. I am also grateful to the noble and learned Lord for giving way to my noble friend Lady Carnegy so that she could make her point in the debate a moment ago.

Nobody, if they have any sense, ever thinks that they are right until they have heard all the arguments. I shall read seriously what has been said. However, I respectfully reserve the right to return to Amendment No. 73, which is near to my heart. I am worried about the fast-track procedure. I do not believe that it will work; I do not believe that it will make for good legislation: I do not believe it is the way to make legislation. I shall return to that matter at the next stage of the Bill. Meanwhile, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Lord Henley moved Amendment No. 20: Page 2, line 39, leave out ("may") and insert ("shall").

The noble Lord said: Amendments Nos. 20 and 24 are simple little probing amendments. I should be grateful for a response from the Government to them. In Clause 4(2) we are told that: If the court is satisfied that the provision is incompatible with one or more of the Convention rights, it may make a declaration of that incompatibility".

We suggest that the "may" should be "shall" and I have used the word "shall" instead of "may" to test the Government's intentions. I ask why the court is being given a discretion and what are the occasions on which the court would exercise that discretion? When would it not exercise the discretion? What remedies would be available if it did not exercise the discretion, if one or other party wished to contest it? I should be grateful to hear from the noble Lord, Lord Williams, or the noble and learned Lord the Lord Chancellor the answer to my queries. I beg to move.

The Lord Chancellor

Clause 4(2) and (4) give a court, if satisfied that a provision of primary or subordinate legislation is incompatible with the convention rights, a discretion to make a declaration of incompatibility. The noble Lord, Lord Henley, says that his amendments are probing, to remove the discretion and require the courts to make a declaration in those circumstances. Why that is a subject on which those who are opposed to the principle of the Bill desire to probe is not entirely plain to me, but none the less I shall endeavour to assist in their probing.

The reason Clause 4 only confers a discretion is in part that in our domestic law a declaration is generally a discretionary remedy. A Clause 4 declaration has no operative or coercive effect and in particular does not prevent either party relying on, or the courts enforcing, the law in question unless and until changed by Parliament.

The courts may, therefore, not wish to make a declaration of incompatibility in all cases. It is possible that the facts of particular cases may suggest that legislation as it is applied in that case is incompatible with the convention, but there may be reasons peculiar to the particular case why the legislation should not be declared incompatible on the occasion when the court would be free to do that.

To assist the noble Lord, whose interest in this Bill to which he is opposed in principle is so great, I suggest that I certainly would expect courts generally to make declarations of incompatibility when they find an Act to be incompatible with the convention. However, we do not wish to deny them a discretion not to do so because of the particular circumstances of any case.

If the noble Lord asks me for examples of that, I suggest that there might be an alternative statutory appeal route which the court might think it preferable to follow, or there might be any other procedure which the court in its discretion thought the applicant should exhaust before seeking a declaration which would then put Parliament under pressure to follow a remedial route.

I cannot envisage many more particular circumstances, but it appears to me to be sensible to leave the courts a discretion, while I well recognise that in the great majority of cases courts would want to make declarations of incompatibility, where that was appropriate.

Lord Campbell of Alloway

I should like to ask, if the court were minded to make the declaration and then somebody sought leave to appeal, what would happen? A court might say: "In those circumstances I shall stay the making of a declaration. I shall not make a declaration. I shall further this matter in the Court of Appeal. What happens in practice if there is no application for leave to appeal to a High Court judge and subsequently an application is made followed by an appeal to the Court of Appeal? What happens then to the position of making out the declaration? How will it work out?

9.45 p.m.

The Lord Chancellor

A court strives, so far as possible, to construe a statute to be compatible. It fails. Therefore it may—not must—make a declaration of incompatibility. If it makes a declaration of incompatibility, nothing at all flows. The statute remains in full force and effect and that is so whether or not there is another route of appeal. However, the declaration of incompatibility puts some pressure on Parliament to make a remedial order.

Lord Henley

The first part of the noble and learned Lord's response was quite extraordinary. He asked why, when we were opposed to the Bill in principle, I was tabling probing amendments. I am sure that the noble and learned Lord will understand that one of our duties as the Opposition, which I dare say even the noble Lord, Lord Lester of Herne Hill, understands, is that we must table probing amendments. We must seek to find out what the Government intend with their Bill.

That becomes more important when, for example, the party of the noble Lord, Lord Lester of Herne Hill, and the Government are at one over the Bill and seek total agreement. The greater the agreement, the more need there is to probe the arguments and ensure that they are tested properly in Committee, at Report stage and at Third Reading. That is why I tabled the amendment and that is why we tabled many more amendments, some of which the noble and learned Lord will be the first to point out contradict each other. I have no qualms about that. The vital job of opposition—one in which I invite the noble Lord, Lord Lester, to join—is to table amendments to probe the intentions behind the Bill.

Lord Lester of Herne Hill

I am grateful to the noble Lord for giving way. He does not need to give lessons to me in the art of constructive opposition. I entirely agree that it is the function of the Opposition to test legislation and probe. However, does not the noble Lord agree that when one does that, one must do it based upon some notion of principle of one's own, some notion of policy of one's own, and some argument as to the mischief that one is seeking to probe?

In this instance we have the noble and learned Lord the Lord Chancellor explaining what is obvious as to the discretionary nature of declaratory relief and the need to give the courts a discretionary power. Having heard that reply to the question, which is plain and obvious, I do not understand why the constructive Opposition do not then express gratitude for the explanation and immediately withdraw the amendment.

Lord Henley

I was dealing with the first point made by the noble and learned Lord the Lord Chancellor when he asked why I tabled the amendment. I appreciate the noble Lord, Lord Lester, has a great deal more experience of opposition than I do; we are only just beginning to learn the art and I hope we shall not have to learn for too long.

I felt that it was important to address that point. I resent being told that there is no point in my tabling the amendment. It is thoroughly honourable to table an amendment of this sort and to ask what the Government are about. We heard an explanation from the noble and learned Lord and that explanation bears some scrutiny. The noble Lord, Lord Lester, will be pleased to hear that I shall look at the explanation with considerable—

The Lord Chancellor

Scepticism!

Lord Henley

The noble and learned Lord says "scepticism". I hope that I can look at it with considerable scepticism; one of the jobs of the Opposition is to look at amendments with scepticism. The noble and learned Lord would be worried if I did not look at it with considerable scepticism. I shall look at it in some detail and, because he advises me, with a degree of scepticism, and I shall look at the examples he gave. Those examples were the first things I wrote down. I wanted to know what examples he could give me. He gave me some examples. I give a guarantee to the noble and learned Lord that I shall look at those examples. I shall possibly come back to this at a later stage. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 21 to 24 not moved.]

Lord Kingsland moved Amendment No. 25:

Page 3, leave out lines 10 to 14.

The noble Lord said: Amendment No. 25 is tabled in the spirit of a probing amendment. However, the Committee may or may not be interested to know that my thinking on this matter has now matured somewhat and it is reflected currently in Amendment No. 66, which is somewhat in advance of our proceedings tonight because it relates to Clause 10. I believe it will help if I explain the thinking behind the two amendments to enable the Lord Chancellor to respond appropriately.

We have identified a problem. It may be an imaginary one because the noble and learned Lord may either have dealt with it in another part of the Bill or have some other means of dealing with it. Let us suppose that a judge of the High Court makes a declaration of incompatibility and as a consequence of that declaration Parliament initiates the fast track procedure. Meanwhile, the losing litigant in the High Court appeals to the Court of Appeal. Just as the responsible Minister has tabled the relevant Order in Council, the Court of Appeal reverses the decision of the High Court—in other words, it decides that there is no incompatibility whatever.

That is a difficult situation for Parliament to deal with. How does it deal with it? Does it cease the order procedure; does it wait on the prospect of a further appeal to the House of Lords; or, if it has passed the order, does it then immediately proceed to reverse it as a result of the decision of the appeal court? That is the problem. I have sought to deal with it in Amendment No. 66 by suggesting that until the legal process is exhausted the process in Parliament should not begin.

I shall quite understand if the noble and learned Lord the Lord Chancellor says that the problem is resolved elsewhere in the Bill or in some other way. But we thought it worth tabling a probing amendment. I beg to move.

The Lord Chancellor

The noble Lord, Lord Kingsland, tells me that this is a probing amendment. I, of course, accept that. It is also a very positive amendment because what it proposes is to reserve to the House of Lords and the Judicial Committee of the Privy Council the power to make a declaration of incompatibility. It would not allow a declaration to be made by the High Court or Court of Appeal or the equivalent bodies specified in Clause 4(3). The noble Lord envisaged a state of affairs where a declaration of incompatibility is made—let us say, in the High Court—hut then the case is moving on appeal to the higher courts. In all probability, from a practical point of view, government and parliament would not do anything in a highly contentious case if it was going through the appellate process; that is, they would not move to make a remedial order. That would be the practicality of it. But Parliament at any time can pre-empt litigation and pass amending legislation whether or not declarations of incompatibility have been sought.

Treating the amendment seriously, it would have one of two possible results, both undesirable. One would be to reduce significantly the number of occasions on which a declaration of incompatibility could be made because only a small proportion of cases are heard by the High Court and the Court of Appeal and then go on to the House of Lords or the Judicial Committee of the Privy Council. For example, a declaration would not be available in the course of proceedings in the High Court for judicial review or in the course of an appeal to the Court of Appeal (Criminal Division) against a Crown Court conviction. That would seriously reduce the usefulness of the provision in Clause 4.

The other possible result would be an inevitable increase in the number of applications for leave to appeal to the House of Lords simply because that would be the only place where a declaration of incompatibility could be made. That would overload the list of the House of Lords and obviously we want to avoid that. In some cases it may well be obvious, once the High Court has given a reasoned judgment, that a provision in legislation is incompatible with the convention rights. No one in their right mind would want to go to appeal, but the amendment would require individuals to have to go all the way to the House of Lords to obtain a declaration. So these amendments seem to me to promote unnecessary litigation.

In any event, we do not have any desire to restrict the power to make a declaration in the way that this amendment suggests. The High Court, the Court of Appeal and equivalent courts, are served by senior judges who are well equipped to resolve difficult points of law. Very often the resolution of such matters begins and ends with them. For example, in England the judges who deal with judicial review are all permanent High Court judges drawn from the Crown Office list. We have no doubt whatsoever that they are more than competent to consider and to make declarations about the incompatibility of domestic legislation with the convention rights.

I appreciate that it is the function of opposition to make probing amendments, but it is a good Bill unless one is opposed to it in principle. One must really avoid giving the impression of looking for things to complain about.

Lord Kingsland

Perhaps I may say to the noble and learned Lord the Lord Chancellor that on this occasion he has been uncharacteristically unfair, because I coupled my remark about the probing amendment with the observation that Amendment No. 66 provided a constructive solution to the problem he posed, preserving the right of the High Court and the Court of Appeal to make a declaration of incompatibility but allowing a period to elapse so that any rights of appeal were exhausted before Parliament leapt into action.

It seems to me that if the incompatibility between the European Convention on Human Rights and any domestic statute or common law is a matter of law, then Parliament owes it to the courts to make up its mind filially whether the incompatibility exists. The courts cannot make up their mind finally to decide whether or not the incompatibility exists until the appeal procedures have been exhausted. The problem could become a particular embarrassment if halfway through Parliament's fast-track procedure the courts changed their mind about whether incompatibility existed.

With great respect, I put it to the noble and learned Lord that if he sees my opening statement in the context of Amendment No. 66, he will see that it is—"for once" he might say—a genuine attempt to provide a constructive solution to what I think is quite a serious problem. I invite the noble and learned Lord to have a further public reflection on the matter.

The Lord Chancellor

I undertake to have a further private reflection on that point.

Lord Kingsland

That is good enough for me and in those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10 p.m.

Lord Mackay of Drumadoon moved Amendment No. 26: Page 3, line II, leave out ("sitting as a court of criminal appeal").

The noble and learned Lord said: As the noble and learned Lord the Lord Chancellor will be aware, this is one of a number of amendments that have been suggested by the Law Society in Scotland and have been circulated, together with appropriate briefings, to a number of noble Lords who are taking an interest in the passage of the Bill.

Amendment No. 26 seeks to explore, in the context of Clause 4(5)(d)) the reason why "declarators of incompatibility", as I understand them to be called in Scotland, can be made by a High Court judge sitting in his civil jurisdiction as a judge in a Court of Session, but not by the same High Court judge sitting in his criminal capacity as a judge in the High Court of Justiciary. In criminal matters, it is only when a case has reached the Court of Criminal Appeal that the option of a declarator will be open.

One can anticipate that in criminal cases issues will arise as to whether the statutory provision upon which a charge is based is compatible with Convention rights. One can envisage also arising situations when evidence is recovered in terms of a search warrant granted in terms of statutory provisions alleged to be incompatible with Convention rights. If those issues are to be raised, it will be the duty of counsel to address the High Court judge on the legal argument. He will undoubtedly form a view as to whether there is that alleged incompatibility with Convention rights.

The purpose of the amendment is to see why the judge is not to be given that option in criminal matters when, if similar issues arise in civil cases, he will have such an option. I beg to move.

The Lord Chancellor

I wonder whether what lies behind the noble and learned Lord's amendment is concern that somehow or other the statutory provision may be operating as some kind of slight on the High Court of Justiciary in Scotland. Not so. The Bill does not call in question the standing of the High Court of Justiciary in Scotland and well understands that it is of equivalent rank to the High Court in England. The intention is not to confer on judges presiding over criminal trials, whatever their rank, the power to grant declarations of incompatibility. In fact, High Court judges in England who sit in crime at, say, the Old Bailey in London or anywhere in the country, sit in the Crown Court albeit that they are High Court Judges; whereas it is well understood that when Scottish judges sit as criminal judges and in the High Court of Justiciary, they do so in a rank which, for the purposes of criminal cases, is equivalent to the rank that they occupy in the Court of Session. That is well understood.

The point is different. Put simply, the policy that the Bill reflects is that judges who preside over criminal trials should not have the power to make declarations of incompatibility. However, judges sitting in the High Court in England, not as judges sitting in the Court of Session in Scotland, in a judicial review matter would be empowered to make declarations or declarators of incompatibility. But the policy that lies behind the existing statutory provision is that we do not believe that trials should be upset, or potentially upset, by declarations of incompatibility that may go to the very foundations of the prosecution.

Lord Mackay of Drumadoon

I am grateful to the noble and learned Lord for his explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mackay of Drumadoon moved Amendment No. 27: Page 3, line 12, at end insert ("or the Court of the Lord Lyon or any Court of the Church of Scotland.").

The noble and learned Lord said: Amendment No. 27 touches on another Scottish peculiarity of this Bill; namely, the possible application of the provisions of the Bill first to the Court of the Lord Lyon and, secondly, to the courts of the Church of Scotland. The noble and learned Lord will be aware that the Lyon Court in Scotland deals with all matters relating to heraldry and makes rulings on genealogy, some of which are accepted by the Committee for Privileges of your Lordships' House in claims regarding Scottish peerage cases. There is a right of appeal from the Lyon Court to the Inner House of the Court of Session but, subject to that right of appeal, matters are left to Lord Lyon and his court. The issue arises as to why that court does not fall to be included in Clause 4(5).

How the provisions of this Bill will affect the courts of the Church of Scotland is a much more fundamental question. A number of questions arise which I know are of interest not only to the Law Society who have promoted this amendment but to the Church itself. Since the amendment was framed I have spoken to the Procurator to the General Assembly of the Church of Scotland. I know that he will be considering the matter very anxiously and will welcome any explanation that can be given as to the effect of these provisions on those courts and their legislative powers. I understand from Clause 21(1) that "primary legislation" which is defined in paragraph (d) as including a "Measure of the Church Assembly" is not intended to refer to the General Assembly of the Church of Scotland.

On that basis I ask the noble and learned Lord: what is the intention of the Government as to the effect of this Bill on the Church? Is it intended that the courts of the Church shall fall within the phrase "A court or tribunal" in Clause 2(2)? Is it intended that the provisions of Clause 3(1) apply to the courts of the Church who, during the course of their work, have to construe and apply primary legislation of this Parliament and any subordinate legislation that may flow from it? Is it intended that the General Assembly of the Church of Scotland as a body that passes church legislation should fall within the definition of "public authority", which is relevant to the provisions of Clause 6? More importantly perhaps, is it intended that the courts of the Church and those who have the duty to refer and present disciplinary cases to those courts should fall within the definition of public authority as set out in Clause 6(3)(c)?

These are important issues in Scotland and important issues for the Church of Scotland. Since the passing of the Church of Scotland Act 1921, it has vigorously defended before the courts in Scotland its right to have sole jurisdiction to determine all questions concerning membership and office in the Church, the constitution and membership of the courts of the Church, the mode of election of its office bearers and the defining of the boundaries of the spheres of labour of its ministers and other office spheres. It has resisted any right of any civil authority, including the civil courts in Scotland, to interfere with the proceedings or judgments of the Church within the sphere of its spiritual government and jurisdiction.

These are complex and important matters. It may well be that tonight is not the night to expect the noble and learned Lord to give a full response to them. But they are matters to which I anticipate that I shall wish to return at Report stage. At this time, in the absence of any Scottish lawyer on the Front Bench, an undertaking to respond in writing to the points I have raised to allow me and others to reflect on them before Report stage may make it possible to pass from the amendment without unnecessary delay. I beg to move.

Lord Lester of Herne Hill

We are in deep waters. I have no wish to plumb the depths of them tonight. However, it seems to me that so far as concerns the Lord Lyon King of Arms, it is difficult to think of a situation in which any decision he might make, whether with or without Garter King of Arms—for example, as to whether my noble friend Lord Jenkins of Hillhead is entitled to call himself "of Hillhead" as well as "in the County of Swansea" in his title, to take a working example—could possibly trigger a claim of breach of the European Convention on Human Rights.

So far as concerns Church courts, it seems to me in the first place that it is fairly clear from English public law principles—1 imagine that they would apply mutatis mutandis north of the Border—that the courts would not regard the decisions taken by the Chief Rabbi, for example, in an actual case, or the senate, or the bishops of the Catholic Church, any more than they regard visitors of universities in their visitorial jurisdiction as falling within the scope normally of judicial review as bodies that are public authorities exercising public powers. They are careful to draw the line between those kinds of decisions and decisions they habitually review. I should have thought that one would expect a similar approach to be taken to Scots public law—it is a matter of Scots law in the end—especially under the Act of Union and its guarantee of the position of the Church in Scotland and of the court system.

In any event, I find it difficult to imagine a situation in which any of those bodies would be likely to trigger breaches of the convention. I wonder whether any examples have been given by the Law Society of Scotland to show that it is a real issue rather than an abstract, theoretical one. On the face of it, it seems hard to imagine a situation arising in which this would be a problem.

The Lord Chancellor

I shall undertake to write to the noble and learned Lord, Lord Mackay of Drumadoon, as he indicated, on the detail of his questions. However, I shall try to assist him so far as I can. I am certainly familiar with the nature of the office of Lord Lyon King of Arms. I well recall in 1987, when I had the privilege of becoming a Member of your Lordships' House, that there were discussions between two "creatures" called Garter and the Lyon as to the territorial title which I might be entitled to take. I certainly had a vision of those two elderly gentlemen, as they then were, discussing the odd one which had come in front of them for decision.

I understand that the Court of the Lord Lyon adjudicates on grants of heraldic arms and it also carries out other functions in relation to peerages. honours and ceremonial matters. Appeals on matters of matriculation of arms go directly to the inner house of the Court of Session, and not to the outer house, and then to the House of Lords. In a sense, that signals the seniority of the position in the hierarchy of the Court of the Lord Lyon.

However, it appears to me in this way at this stage that, although appeals lie to the inner house of the Court of Session—that is, the equivalent of the Court of Appeal in England —the Lyon Court is not a court which sets precedent in any mainstream legal sense. We would not expect it to be hearing any significant number, perhaps none, of cases raising convention issues.

By contrast, the Court of Session in Scotland and the High Court in England develop mainstream law and over time they are likely to hear a significant number of cases raising convention issues. I would require a vast amount of persuasion that any case was made out for including the Court of the Lord Lyon among those empowered to make a declaration of incompatibility.

As regards the courts of the Church of Scotland, I understand that they deal primarily with internal matters such as discipline in relation to ministers. Without in any way underestimating their importance in the Church hierarchy, clearly they are not the equivalent of the courts which are expressly empowered to make a declaration under Clause 4. Even if the amendment were restricted, as it is not, to the General Assembly of the Church of Scotland—that is, the supreme court and governing body of the Church of Scotland—I would have reservations about empowering it to make declarations of incompatibility. At present, my view is that that must be for the higher secular courts, not for domestic courts and even the highest domestic court of the Church of Scotland.

10.15 p.m.

Lord Mackay of Drumadoon

I am grateful to the noble and learned Lord and to the noble Lord, Lord Lester. I fully accept that, in selecting places in the remoter parts of Scotland, such as Lairg and Drumadoon, Lyon has an informal role to play in discussing matters with Garter. However, he adjudicates on more significant and important issues, including the succession to Scottish peerages. The noble Lord, Lord Selkirk of Douglas, who was recently introduced to your Lordships' House, took a case to the Lyon Court two or three years ago in order to establish that, having disclaimed the peerage himself, his son and not his cousin had the right to succeed to the peerage and to inherit certain assets which went with it. Therefore, Lyon has by no means an academic or advisory jurisdiction.

As regards Church law, I doubt whether the approach of applying English public law principles mutatis mutandis would be correct. The fundamental issue which this amendment seeks to raise is not so much the role of the Church courts in making such declarations, but the extent to which the provisions of this Bill, the need to respect and comply with convention rights, is a duty which will be placed on the courts of the Church and on the General Assembly of the Church in passing legislation. That is certainly the issue which I would be grateful if the noble and learned Lord would address when he comes to reply. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 agreed to.

Clause 5 [Right of Crown to intervene]:

[Amendment No. 28 not moved]

Lord Henley moved Amendment No. 29: Page 3, line 23, leave out from ("Crown") to end of line 24.

The noble Lord said: If I may speak very briefly to Amendment No. 29, again this is a probing amendment and I hope that the noble and learned Lord the Lord Chancellor will accept that I am entitled to make probing amendments on certain occasions. On this occasion it is a very simple question that I am asking. The subsection suggests that it may be a Minister of the Crown or a person nominated by a Minister of the Crown. The question I wish to put to the noble and learned Lord is simply why one needs to have the phrase, "a person nominated". What is wrong with a Minister of the Crown? Surely the phrase "by a Minister of the Crown" includes any person to whom he might delegate such matters. I look forward with interest to hearing the response of the noble and learned Lord the Lord Chancellor.

The Lord Chancellor

It may give pleasure to the noble Lord, Lord Henley, to be reassured by me that I regard this as an entirely genuine probing amendment. Clause 5(2) entitles a Minister of the Crown or a person nominated by a Minister of the Crown to be joined as a party to the proceedings where a court is considering making a declaration of incompatibility. The effect of this amendment would be to restrict this entitlement to a Minister of the Crown. It appears to us that it will, or may in some cases, be more appropriate for a person nominated by a Minister of the Crown rather than a Minister to be joined as a party to the proceedings.

That is true, for example, in relation to private Acts or to measures of the Church Assembly or to measures of the General Synod or to regulators of public utilities or to the Director General of Fair Trading, to name but a few. In these cases the court may be considering making a declaration of incompatibility and the appropriate person to intervene may well not be the relevant government minister, but the relevant government minister may recognise that there is another more appropriate person to represent the court in this particular legislative area, and then will so nominate. So the object of the provision is to enable the responsible Minister to nominate a more appropriate person to assist the court in relation to particular legislation.

Lord Henley

I thank the noble and learned Lord for that response. I am not entirely sure that I fully understood what he has said and I will look very carefully at his reply. I would have thought that the words "a Minister of the Crown" would to some extent in fact embrace someone that the Minister nominated. I appreciate that this is a purely a drafting point, and the noble and learned Lord will know far more about the drafting of legislation than I do; but surely the words "a Minister of the Crown" would embrace a person acting as his agent in these matters.

The Lord Chancellor

I will write to the noble Lord. I have to confess that I had thought that the purpose of the amendment was to suggest that the true position should be that there should never be a nomination and that a Minister of the Crown should not be entitled to nominate any person other than himself. However, the noble Lord, Lord Henley, has now intimated that he sees the purpose of his amendment not so much as to preclude nomination but rather to suggest that the entitlement in the Minister of the Crown to nominate some other person is superfluous. That is a different basis from the one on which he put the matter in the first instance. However, I shall certainly write to him.

Lord Simon of Glaisdale

Will not the nominated person frequently be a Law Officer or Treasury devil? As I understand it, apart from this Bill, they can intervene and are entitled to intervene when the prerogatives of the Crown are in question. This is a wider power, is it not?

The Lord Chancellor

Yes, it is, and it is intended to be. The explanation which I first gave to the noble Lord, Lord Henley, is the explanation as I understand it. I am not sure whether the noble and learned Lord, Lord Simon of Glaisdale, suggests that what is intended by the provision in its existing form is merely to authorise representation in court of the Minister by a Law Officer or Treasury junior. In my understanding, that is not what is intended, although no doubt it would include that. It is intended that a person other than a Minister of the Crown or lawyer acting for a Minister of the Crown could be joined as a party to the proceedings if thought by the Minister of the Crown to be more appropriate because that would offer greater assistance to the court in relation to the legislation under consideration.

Lord Henley

I suspect that I am becoming even more confused than I was at the beginning. The noble and learned Lord the Lord Chancellor seemed to imply that I moved the amendment and then started to go down a different track. I hope that I was not doing that. I was merely trying to suggest the removal of a number of words on the basis that the noble and learned Lord, Lord Simon of Glaisdale, frequently suggests: the more superfluous words we can remove from legislation, the better it is.

At this stage, I shall look extremely carefully at what the noble and learned Lord the Lord Chancellor said and at what the noble and learned Lord, Lord Simon of Glaisdale, said. I look forward also to receiving a letter from the noble and learned Lord the Lord Chancellor explaining, as he promised me, precisely his reasoning behind those matters. With that, at this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Henley moved Amendment No. 30: Page 3. line 28, at end insert— ("( ) The legal expenses incurred by a Minister of the Crown in making an application under subsection (2) and in taking part in any proceedings to which he is made a party shall be borne by the Crown.").

The noble Lord said: Again, this is another relatively simple probing amendment whereby in Clause 5 we seek an assurance from the Government that in those cases where a Minister of the Crown wishes to intervene, should there be extra costs as a result of that, the other parties in the case will not be subject to the extra costs caused by that intervention and that those costs will be met by the Crown. That is a relatively simple point. I hope that the noble and learned Lord the Lord Chancellor understands it and can give me an assurance that that will be the case.

Lord Lester of Herne Hill

I have some sympathy with this amendment. I am entirely in favour of the right of the Crown to intervene where a declaration of incompatibility is being considered. That is obviously extremely important.

I welcome also the wide range of persons who will be entitled to intervene under Clause 5(2). However, given the deterrent effect of costs orders, which was mentioned on Second Reading, it seems to me extremely important that the litigant should not be deterred by the risk that he will have to pay the costs of the intervention of the Crown in such a case.

Obviously it would normally be dealt with as a matter of discretion by the courts, but it seems to me that it would be right to put the matter beyond doubt in the way that this amendment suggests so there is no sword of Damocles hanging over the head of the litigant that if there is a Crown intervention, then there may be liability for his costs, the respondent's costs and the Crown's costs as well.

10.30 p.m.

Lord Williams of Mostyn

This is plainly a genuine probing amendment—

Noble Lords

Oh!

Lord Williams of Mostyn

As indeed all the earlier ones undoubtedly were. This is of course an important question, but we believe it is best dealt with in a different way. I shall take a moment or two to explain why. As the Committee will be aware, the courts, in particular the higher courts to which this clause is relevant, already have considerable discretion to make orders for costs affecting both parties and non-parties to litigation. Although there are few Members of the Committee present, quite a number of those have had fairly frequent experience of reaching a conclusion about orders for costs.

In relation to civil cases in the High Court and the Court of Appeal, Section 51(3) of the Supreme Court Act 1981 states that, the Court shall have full power to determine by whom and to what extent the costs are to be paid. Various well known provisions on the award of costs in criminal cases are contained in the Prosecution of Offences Act 1985.

I suggest, with great respect, that there are good reasons why the allocation of costs should be left to the judges' discretion. The important point, among others, is that the court in question has heard the case fully; it knows all the relevant facts and it has had the benefit of submission from counsel for all parties. There are many factors which judges would properly want to take into account when assessing how costs should be allocated. This is not intended to be an exhaustive list, but these would include whether the case put forward by the party seeking the declaration had any substantive merit. Some cases are more meritorious than others and some which get to court have little merit at all except the opportunity of outdoor relief for members of the Bar. Perhaps it ought to be indoor relief for members of the Bar! We all know of litigants who insist on taking up court time when it is not reasonable or legitimate to do so. This is a matter for the judge's decision, having heard—I stress—all the facts of the case and considered all the interlocking legislative provisions.

Another question could be: was there any wider public interest in the case? That ought to be a matter affecting the judge when he decides on the costs order. He would probably want legitimately in this area to consider the financial position of the applicant. That is not, of course, a strong aspect of judicial discretion in costs orders in the generality of cases, but it might—if a particular judge thought it appropriate—be relevant in this class of case. What is the outcome of the case? Is a declaration of incompatibility or a declarator ultimately awarded? How many other members of the public might be affected? What is the ambit of the legislative component which is the subject of a declaration of incompatibility? All those are subtle questions that judges ought to balance rather than being disqualified from carrying out that balance simply by the brutality of this present amendment. It is only right and proper that I should try to protect the judiciary from brutality from any quarter, even probing brutality.

We do not think it would be reasonable or sensible to put a specific provision in the Bill that in every case the Crown should bear the cost of a Minister applying for or being joined as a party. I do not regard this response as in any sense a party political point. It seems to us much better to leave questions of discretion with the judge in question. Judges do this every day of the week and by and large, if I may say so, they do it extremely well. They are well accustomed to deciding those issues, not least, for instance, in the general analogy of which one might think: in cases of judicial review.

My noble and learned friend the Lord Chancellor has already plainly indicated—this was reaffirmed on Second Reading—that he regards those cases as particular, because he spoke of—he repeated it earlier today in Committee—a dedicated fund that there may well be for litigation within this general area. Bearing in mind that this will be peculiar litigation, and the clear indication which my noble and learned friend has given, I should have thought that this was an occasion when one should come to the conclusion: trust the judges. They know the full facts. This place, however infinitely wise, is not necessarily possessed of a crystal ball which would be suitably accommodating for every conceivable occasion in the future.

There might well be cases many years from now when this Government are no longer in power. Behind me I hear "shame" and "oh", but I am such a naÏve country boy that I can contemplate that further in the future perhaps than Members opposite. It might well be the case that a Minister of any governmental party would want to have a matter tested, but not within the constrained straitjacket that costs would always be dictated by Act of Parliament rather than by the discretion of the judge.

We do not believe that it is reasonable or sensible to insert a specific provision in the Bill that in every case the Crown should bear the costs of the Minister. There are likely to be cases—one recognises this—where the Crown would be required to meet its own costs. For instance, a tribunal might feel that the point behind the declaration of incompatibility was so plain that the Minister in question had behaved irrationally or unreasonably in contesting the matter. It might be thought that the interest of the Crown was so marginal that the relevant Minister might perhaps never have applied to be joined, on the powers given him in the Bill.

There is a wide spectrum of possibilities which reinforces our stance. In some cases of course the Crown may be required to meet its own costs, as I said a moment or two ago. It may even be that there would be circumstances where the Crown would have to meet the costs of other parties. There might be some cases where neither would be appropriate.

We do not see any grounds for moving away from the general well-known position that the allocation of costs in individual cases is a matter for the courts to determine in the light of individual and particular circumstances. I have taken a moment or two, because, although it is late, and although it does not go to the heart of the Bill, it is an important aspect. I hope that the noble Lord will think that I have done his amendment justice in replying as fully as I can.

Lord Lester of Herne Hill

Before the Minister sits down, he has rightly indicated that this is important. because it is about access to justice and the deterrent effect of costs. I wonder whether he could deal with my point, which goes more to Crown policy than to fettering the judges' discretion. I shall give just two examples. In the past year I have known public authorities—in one case the Official Solicitor and in the other the Human Embryo and Fertilisation Authority—to seek costs orders against a meritorious applicant—in one case as a condition for leave to appeal to the Court of Appeal, and in the other where an amicus curiae had been appointed.

In both cases it happened that the same judge—a compassionate and commonsense judge—refused the application for costs, but the deterrent effect of the possibility of a costs order being made against those litigants was extremely severe. Had they not had confident counsel who encouraged them to take the substantial risk, they might never have been able to get their cases finally determined.

My question is: granted that the courts need to have wide discretion in deciding costs matters, will the Minister assure the Committee that, so far as concerns this Administration, the Crown would not normally seek a costs order against a litigant where there was a strongly arguable case, properly brought, on a genuine issue of public importance, because, with that assurance, the deterrent effect to which I referred would be much less? I realise that one cannot fetter the Crown and that one cannot give an absolute, unequivocal undertaking; but what I am seeking from the Minister is some indication of how the Crown sees the matter generally in terms of the deterrent effect.

Lord Williams of Mostyn

Fundamentally, all litigation is about questions of access to justice. Therefore this particular area of litigation, though extremely important, is not different in principle to any litigant wanting his or her rights upheld in the courts.

It would be quite improper for me to give any indication of Crown policy generally which would attempt to bind my colleagues for the future. After all, any government is the steward of public funds and ought not legitimately to say, "This is going to be our policy in these matters".

However, I reiterate—and I should have thought it would be a source of comfort—what the noble and learned Lord the Lord Chancellor said in his Cardiff speech and has reiterated today, and what was said by me on his authority in winding up at Second Reading; namely, of course we regard these cases as important. One signpost of that is his fund, about which he is consulting, which would be devoted entirely to this class of case. Beyond that I do not believe that any Minister ought properly and prudently to go.

Again I reiterate the remarks of my noble and learned friend the Lord Chancellor. The judges who will try this class of case will be High Court judges, well accustomed, well attuned, particularly over the past 10 years—far more attuned than many political figures—to these important questions. They will be alert and astute to the points put forward by the noble Lord, Lord Lester of Herne Hill. I believe it is better to trust the judges on these matters. They know the facts of the case and the importance of the issues. I believe that they will know where their duty, judicially, lies in coming to a proper, fair balance in everyone's interest in relation to applications for costs.

Lord Henley

I am grateful to the noble Lord for giving such a long and full answer. If I dare say so in the presence of quite so many members of the Bar scattered round the Chamber, and particularly in the presence of the noble Viscount, Lord Colville of Culross, at whose feet I sat as a pupil some 20 years ago, I, too, am not a great believer in outdoor relief at the Bar. However, that is a matter that others will no doubt address in due course.

I am glad that the noble Lord recognised that the amendment was purely probing. I am grateful on this occasion to receive some support from the noble Lord, Lord Lester of Herne Hill. I give an assurance to the noble Lord, Lord Carter, the Chief Whip, that I shall certainly not press this amendment to a Division at this time of night. As I indicated in my opening words, I think that the noble Lord, Lord Williams of Mostyn, did full justice to this amendment. Obviously, I shall want to consider that in due course and take some advice on it.

For the moment, all I can say is that I note what the noble Lord has to say. I will take that away and look at it. It is possible that I myself and the noble Lord, Lord Lester, will return to the matter at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 agreed to.

Lord Carter

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

House adjourned at sixteen minutes before eleven o'clock.