Lords Sitting of 24 November 1997

Preamble
The House met at a quarter past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Exeter.

Baroness Young of Old Scone
Miss Barbara Scott Young, having been created Baroness Young of Old Scone, of Old Scone in Perth and Kinross, for life—Was, in her robes, introduced between the Baroness Nicol and the Baroness Dean of Thornton-le-Fylde.
Lord Hattersley
The Right Honourable Roy Sydney George Hattersley, having been created Baron Hattersley, of Sparkbrook in the County of West Midlands, for life—Was, in his robes, introduced between the Lord Richard and the Lord Peston, and made the solemn Affirmation.
Lord Ryder of Wensum
The Right Honourable Richard Andrew Ryder, OBE, having been created Baron Ryder of Wensum, of Wensum in the County of Norfolk, for life—Was, in his robes, introduced between the Viscount Cranborne and the Lord Peyton of Yeovil.

European Monetary Union: Pension Funds
2.49 p.m.
The Earl of Clanwilliam The Earl of Clanwilliam asked Her Majesty's Government:
What plans they have to introduce the subject of fully funded pension schemes as a factor of convergence during the forthcoming United Kingdom presidency of the European Union.
Lord McIntosh of Haringey: My Lords, we shall use our presidency as constructively and supportively as possible in ensuring that the launch of EMU is successful. We have no plans to raise the subject of fully funded pension schemes as a factor of convergence during our presidency. Article 104c of the Maastricht Treaty and the stability pact make clear that member states must avoid excessive deficits in EMU.
The Earl of Clanwilliam: My Lords, I thank the Minister for that interesting reply, which seems to be somewhat contradictory. If the Government are looking for the success of EMU, it is hard to imagine how unfunded pensions cannot be included in the subject. Does the Minister accept that fully funded occupational
746
schemes represent an annual surcharge of 6 per cent. of corporate costs? Does that not mean that there is a hidden charge to be counted in reckoning the true rate of public debt in terms of our EU partners?
Lord McIntosh of Haringey: My Lords, there are certainly differences between us and our EU partners in the extent to which pension schemes are fully funded. Those differences are not directly reflected in the convergence criteria but are reflected indirectly, in the sense that, when unfunded schemes come to be paid for, they affect the deficit which countries have to declare under the stability pact, which in turn affects the convergence criteria.
Baroness Castle of Blackburn: Is it not a fact that most of our European partners have been operating pay-as-you-go schemes for years? If it is convergence we are after, we ought not to be pressing our own Government to go for funded schemes, particularly at a moment when the tragic chaos in world markets proves that investments in such funded schemes cannot guarantee full retirement security.
Lord McIntosh of Haringey: I confirm that, as I said earlier, other European countries have a higher proportion of their pension provision in unfunded, pay-as-you-go schemes than we do; but I repeat that this is not directly a convergence criterion for European monetary union. There is no question of any pressure being put upon us to change our funded scheme to an unfunded scheme.
Lord Taverne: My Lords, does not the Minister agree that, quite apart from the specific rules against "bail-out" in the treaty and in the stability pact, there are other reasons why this specific argument against monetary union—whatever the other arguments may be—is a non-starter? These obligations are extremely uncertain and no more predictable than, say, the cost of decommissioning nuclear power stations. Does he further agree that in the decade or more which is still available for dealing with these questions, there is no reason why our EMU partners should not be able to take the kind of measures to avoid hidden future liabilities which we ourselves in Britain took in the 1980s? Will he therefore dispose of this disreputable canard once and for all?
Lord McIntosh of Haringey: My Lords, I am grateful to the noble Lord for allowing me to emphasise that under Article 140b—the so-called "bail-out" clause—there is no question whatever of our being required within EMU to contribute to any lack in other countries' pension funds. Therefore I can agree with the remainder of the noble Lord's remarks.
Lord Marsh: My Lords, does not the noble Lord agree that Article 104c lacks credibility in this situation? He is not being pressed on this because everyone is trying to dodge the issue. Britain's problems, compared with those of the other European nations, are minute in comparison. The many billions of pounds of liabilities,

747
which are not problematical but are factual, will have to be met one way or the other. Does the Minister seriously suggest that those liabilities can be met without any impact on the economic and financial situation of the member states?
Lord McIntosh of Haringey: My Lords, when those countries which have unfunded schemes have to start paying out of current income, their deficits will be affected and they will need to make other arrangements in order to deal with them. I do not in any way accept what the noble Lord, Lord Marsh, said in relation to Articles 104c and 104b. Article 104b is quite explicit that we cannot be called upon to contribute. Article 104c is explicit, in that excessive deficits, either now or in the future, are not acceptable.
Lord Clark of Kempston: My Lords, bearing in mind the importance that the Government place on pensions, can the Minister explain the logic behind the decision taken recently to deprive pension funds—which are contributed to by long-term savers—of £5 billion per year? Surely the Government should be helping the pensioner.
Lord McIntosh of Haringey: My Lords, the removal of double taxation relief, which is what I take the noble Lord to be referring to, is a matter for this country alone and is not affected by our membership or otherwise of EMU.
Lord Barnett: My Lords, can my noble friend confirm that, regardless of pension funds, if we in this country manage to meet sustainable convergence well in advance of the year 2002, he will have in mind joining the single currency?
Lord McIntosh of Haringey: My Lords, the Chancellor made it clear in his Statement on 27th October that sustainable convergence means sustainable over a period of years. We are setting ourselves tough economic targets rather than fiscal targets which will determine the stage at which we put to the people of this country the issue of when we go into EMU.
Lord Higgins: My Lords, I should declare an interest as a trustee of an occupational pension scheme. Is it not the case that, compared with the United Kingdom, other European countries have an immense potential liability in relation to pension funds? If the Government are genuinely interested in the long-term viability of EMU, should not that be taken into account in assessing the debt ratio of individual countries?
Lord McIntosh of Haringey: My Lords, I have answered the noble Lord's first question twice already, if not three times. The Government have always recognised that a number of our European partners have a higher proportion of their pension provision in unfunded schemes. Eventually somebody will have to pay for that.
Lord Peston: My Lords, does not my noble friend agree that the whole business of unfunded pensions is a complete myth? An unfunded pension is simply a system whereby present-day workers pay for present-day pensions in the hope that future workers will pay for their pensions. There is no technical problem as a matter of arithmetic, let alone economics, with an unfunded pension scheme. It certainly has nothing to do with EMU.
Lord McIntosh of Haringey: My Lords, there is no technical problem with any version of funding of pensions; the issue is one of intergenerational equity. We must ensure that no generation is forced to pay both for its own pensions and for those of its parents or children.

Vitamin B6
2.59 p.m.
The Countess of Mar The Countess of Mar asked Her Majesty's Government:
Whether they will reconsider their decision to restrict the general sale of Vitamin B6.
The Parliamentary Secretary, Ministry of Agriculture, Fisheries and Food (Lord Donoughue): My Lords, the Government have no plans to reconsider their decision to limit the level of Vitamin B6 in dietary supplements sold under food law.
The Countess of Mar: My Lords, I thank the Minister for that reply. It seems particularly perverse in the light of the Government's stance on the sale of organophosphates and the huge body of scientific literature on peripheral neuropathy, psychoneuropathy and damage to a good many of the organs in the body when there are only about 18 papers—I have seen the list that CoT has seen—showing that peripheral nerve damage is caused by Vitamin B6 in overdose and not at doses below 250 milligrams, except as stated in the much disputed Dalton paper. Can the Minister look at one or other case—either organophosphates or Vitamin B6—and decide which is right?
Lord Donoughue: My Lords, our stand is not perverse. There is a consistency in that our policy both on the recommended dosage of Vitamin B6 in foods and our stand on OPs is the consequence of the official scientific advice we have taken. There are differences between the two. The regime for OPs is much stricter in terms of licensing and controls over sales and use. B6 has a lighter regime. Whether the regime for controlling OPs is strict enough is a question on which our scientific advice says "Yes". The noble Countess disagrees. I personally would not discourage her from continuing to ask her questions.
Lord Peyton of Yeovil: My Lords, does the noble Lord agree that he might do very well to recall that the noble Countess is, first, very persistent and, secondly,

749
very often right? There is at least a possibility, remote as it may seem to him, that the Government or the department concerned have got it wrong.
Lord Donoughue: My Lords, I always appreciate the noble Lord's questions and normally agree with them. It had crossed my mind, long before I took this job, that the noble Countess could be right in a number of ways. I have conducted my job so far on the basis of that possibility.
Baroness Park of Monmouth: My Lords, following on from that, perhaps I may ask the Minister who are the members of the Committee on Toxicity and what areas of interest they represent.
Lord Donoughue: My Lords, the Committee on Toxicity has 15 members. They are appointed for their expertise. They are basically scientists or medics. Their interest in terms of expertise is in the broad area of relevant sciences. If they have financial interests, they are required to declare them.
Viscount Addison: My Lords, is the Minister aware of any studies on the British population which show the uptake of Vitamin B6 rather than the intake of Vitamin B6? Is 10 milligrams of Vitamin B6 sufficient in terms of intake?
Lord Donoughue: My Lords, there have been a number of surveys on this matter. The Committee on Medical Aspects of Food Policy in 1991 recommended the average daily intake required for the purpose that these particular nutrients perform. It was 1.4 milligrams a day for men and 1.2 milligrams a day for women. Many studies—the noble Countess referred to them—and many official bodies have accepted that 50 milligrams and above is potentially a dangerous dose if used over a prolonged period. It was on the advice of the Committee on Toxicity and our Food Advisory Committee that we accepted 10 milligrams as a recommended daily dose for food supplements. We are not discussing medicines. Other countries take different numbers, but often, especially in Europe, less. For the assistance of the House, perhaps I may point out that one can get one's recommended daily dose of Vitamin B6 from the consumption of 12 pints of beer a day.
Earl Howe: My Lords, I understand the Government's position to be that Vitamin B6 deficiency is rare and that therefore to restrict the availability of Vitamin B supplements would not be widely felt. Is the Minister aware of a recent study by David Benton and others of a number of young British adults which reveals that 42.3 per cent. of males and 63.7 per cent. of females had a Vitamin B status which was in either the marginal or the deficient range? If he is aware of that, has he any comment?
Lord Donoughue: My Lords, I am not aware of that study. Since starting this job I have read all kinds of documents that I shrewdly spent my previous life ignoring. The basic survey was conducted in 1990.
750
It demonstrated, or claimed to demonstrate, that a deficiency of Vitamin B6 was very rare. The Committee on Toxicity looked at 100 studies on various aspects of the subject. It was still convinced that Vitamin B6 deficiency was rare. I shall inquire about the significance or weight of the study to which the noble Earl refers.
The Countess of Mar: My Lords, perhaps I may help the noble Lord. The study was on the intake and not the uptake. Particular groups of individuals, such as women on the pill, women on hormone replacement therapy, and people like myself who have been chemically poisoned, need extra doses of Vitamin B6 because their metabolism has been altered by the other chemicals that are affecting them. Those people rely on purchases of Vitamin B6 from healthfood shops. There will be enormous expense to the health service if we all go to our GPs for prescriptions. Has that been taken into account?
Lord Donoughue: Yes, my Lords. I think we can say that. The restraints we have applied refer only to food supplements. Vitamin B6 can still be licensed and be available from a pharmacist in amounts up to 49 milligrams a day. A doctor can prescribe more than 50 milligrams. Those who have complaints for which Vitamin B6 is an appropriate remedy can still get it from the pharmacist or from the doctor. It is not our information that this imposes a particular extra burden.

Prisoners: Suicides
3.7 p.m.
Lord Avebury Lord Avebury asked Her Majesty's Government:
How many prisoners in England and Wales have taken their own lives in the financial year 1997-98 so far, and of these, how many were male remand prisoners under the age of 21.
The Parliamentary Under-Secretary of State, Home Office (Lord Williams of Mostyn): My Lords, 48 prisoners in England and Wales have taken their own lives since 1st April 1997, including one male remand prisoner under the age of 21.
Lord Avebury: My Lords, does not that indicate that there has been a further steep increase in the rate of self-inflicted deaths since the start of this year? Bearing in mind that only 27 per cent. of the prisoners who took their own lives in the last financial year were being monitored at the time of their death, do we not have to admit that our identification of those at risk is not very reliable? Can the Minister say whether any of the 18 young men under 21 who suffered self-inflicted death in the past year were being monitored at the time and whether, in view of this tragic loss of life, the Government will ask the recently appointed assistant

751
director for young prisoners to address the question of prevention as a matter of the highest priority, taking into consideration that at the Army's institution for young offenders there have been no self-inflicted deaths in the past five years?
Lord Williams of Mostyn: My Lords, during the past 10 years the overall trend as regards suicide has been an annual increase of 6 to 8 per cent. However, against the rise in the prison population, of which your Lordships are well aware, during the past three years the number of deaths has reduced slightly from 127 to 116 per 100,000. So far, 64 prisoner have died. If sustained, that would be a rate of 118. The noble Lord raised some further matters. I appreciate that there were more than two questions but these are sufficiently serious matters for me to deal with them. Of course the assistant director will have this very much in mind. It is an extremely important question. The noble Lord asked whether the young men who died were being monitored. They would have been monitored, but plainly the monitoring failed. I say with all candour that I know of no monitoring system that will ever bring about a situation where no inmate in a custodial institution is unable to take his or her life.
Earl Russell: My Lords, is the Minister familiar with the Howard League report on young offenders, Banged up, Beaten up, Cutting up, which was produced by a committee chaired by the noble Baroness, Lady Kennedy of The Shaws? Does he accept the concern expressed in the report that prison overcrowding is making it increasingly difficult to protect prisoners from other prisoners? In particular, does he accept the recommendation of the report that prisoners should no longer be allowed to keep razor blades in their cells?
Lord Williams of Mostyn: My Lords, I am aware of the contents of that report. There is no evidence that overcrowding of itself results in an increase in suicide. There is a large number of prisoners who prefer to share cells because it mitigates the loneliness and boredom of the day. Obviously, the Government are paying particular attention to the Kennedy Report, as they are to other reports. The fact that the Director of the Prison Service, Mr. Richard Tilt, recently recirculated the useful document Caring for the Suicidal in Custody demonstrates that this issue is treated with great seriousness.
The Lord Bishop of Exeter: My Lords, does the Minister agree that the pioneering work of the Children's Society in its remand and rescue initiative, which is officially launched today, has secured the release from remand of over 50 youngsters in the first six months and that that demonstrates many more young people on remand could be supervised in the community and thus be at far less risk of suicide, self-harm, bullying and criminal contamination?
Lord Williams of Mostyn: My Lords, I am most grateful to the right reverend Prelate for that question and also for his courtesy in giving me advance notice of it so that I might do useful research. The Government believe that the initiative which the right reverend Prelate has specified, and the work of NACRO's juvenile remand review group, are very helpful in assisting the court with information when it makes remand decisions. The youth justice reform programme, to which reference was made earlier to your Lordships, will include measures for improving the delivery of youth justice services. One of the extremely important proposals which cannot be over-stressed will include placing a statutory duty on local authorities to provide appropriate access to youth justice services, which will include bail support. Accordingly, that should help the pressures on the juvenile remand system as well as on the wider prison estate.
Lord Hutchinson of Lullington: My Lords, does the Minister agree that these appalling figures are due to the equally appalling conditions in which remand prisoners are still kept in England and Wales? Does he further agree that 18 years ago the May Report condemned the conditions of remand prisoners as being unacceptable? Those conditions are exactly the same today, but twice as bad, because of the canker, as it has been called, of overcrowding. Will the Minister tell the House whether this Government are as complacent as the last one was about this appalling blot on the penal system in this country?
Lord Williams of Mostyn: My Lords, I well remember reading the admirable report which Sir John May produced, as the noble Lord, Lord Hutchinson, pointed out, several years ago. Remand suicides form over half the total number of deaths. It is an extremely difficult problem. This Government are not complacent. As your Lordships will know, I repeated, with the leave of the House, a Statement made by my right honourable friend the Home Secretary which dealt specifically with returning prisoners who are at the end of their sentences to the community on the basis of electronic tagging. That is a useful, partial first step to deal with these problems. There can be no doubt that there are problems. It is wholly untrue to suggest that this Government are complacent.
Lord Avebury: My Lords, bearing in mind that it will take several years to provide the institutions for young people on remand outside the prison system, will the Government consider extending the electronic bracelet system, which the Home Secretary has announced will be proposed for people approaching the end of their sentences, to those young people on remand who are most at risk?
Lord Williams of Mostyn: My Lords, we are eager to look at every practical step that there may be to reduce unnecessary remand prison population. If the tagging system works, subject to the proviso that public safety is properly secured, we shall attend to it.

Ferry Passengers: UK Entry Procedure
3.15 p.m.
Lord Campbell of Croyasked Her Majesty's Government:
Whether they will advise ferry operators how to identify, among prospective passengers possessing all the necessary personal papers and documents for travel and entry into the United Kingdom, those who will not be permitted by the British immigration authorities to stay in this country.
Lord Williams of Mostyn: My Lords, the authority to grant or refuse leave to enter is vested in the immigration officer at the point of entry. This authority cannot be exercised without a proper interview, nor in advance of the ferry passenger arriving in the United Kingdom. While advice may be given in general terms as to liability for detention and removal costs, the decision whether or not to carry a passenger is ultimately a commercial decision for the carrying companies.
Lord Campbell of Croy: My Lords, I am grateful to the noble Lord for his reply. Why cannot ferries be treated like Eurotunnel where British officials, stationed on the French side, take quick decisions on passengers before they cross the Channel instead of the ferries being expected to pay for expensive return journeys for correctly documented tourist visitors who have, much later, applied for asylum?
Lord Williams of Mostyn: My Lords, carrying passengers for commercial purposes is exactly that. If commercial organisations wish to take a commercial risk, sometimes there will be adverse financial consequences. For the life of me, I cannot see why the taxpayer should pay for what may have been a commercial misjudgment.
Earl Russell: My Lords, I hear what the Minister says about commercial risk, but does he agree that the safety of life at sea is more important than immigration control? Does he further agree that a ferry from Ireland to France, putting into, say, Plymouth rather than founder at sea in a gale, should be immune from penalties under the carrier's liability Act?
Lord Williams of Mostyn: My Lords, of course I agree that the safety of life, whether at sea or on land, is infinitely more important than commercial considerations. But the Question of the noble Lord, Lord Campbell of Croy, is really dealing with the situation that your Lordships well know about at Dover. It has nothing to do with misadventure at sea—stormy winds driving a ferry into a particular port—but is concerned with ferry companies deliberately, for purposes which are commercial, carrying passengers from the Czech Republic and Slovakia. I repeat that if they wish to make those commercial decisions, the Government believe, rightly, I suggest, that if commercial mischance comes about, the company should pay and not the taxpayer.
Lord Campbell of Croy: My Lords, is it correct that the gypsy visitors from central Europe were actuated by
754
television programmes giving the impression that seeking asylum produced a worthwhile stay in Britain? Did they not also believe that even if their application was unsuccessful, they would still be welcome because of the impression given by Labour and Liberal Democrat spokesmen when in opposition?
Lord Williams of Mostyn: My Lords, I dare say that television programmes had some influence on some of the people who came from the Czech Republic and Slovakia. Quite which programme I simply cannot say. I do now know. It may have been the televised proceedings of your Lordships' House which caused them to want to come here. That is possible, but unlikely. The fact is that these unfortunate people have come here to better themselves. We recognise that. But our system of immigration control is not designed for people in that category. We have to make it perfectly plain that the immigration and asylum regime will be properly, fairly and efficiently put into practice. That is what we have done. I believe it is significant that the numbers coming have fallen very significantly. Since the ameliorative regime which the Home Secretary introduced, namely, the opportunity for making further representations, the numbers have been very significantly reduced.

Business
Lord Carter: My Lords, at a convenient moment after 3.30 p.m., my noble friend the Leader of the House, will, with the leave of the House, repeat a Statement to be made in another place on the Jobs Summit.

Human Rights Bill [H.L.]
3.19 p.m.
The Lord Chancellor (Lord Irvine of Lairg): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(The Lord Chancellor.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTESS in the Chair.]
Clause 6 [Acts of public authorities]:
Lord Simon of Glaisdale Lord Simon of Glaisdale moved Amendment No. 31:
Page 3, line 40, leave out ("one or more of").
The noble and learned Lord said: We now come to Clause 6, which is one of the most important clauses in this important Bill because on its terms depends to what extent persons who are aggrieved in this country by offences against their human rights still have to go to Strasbourg—in other words, it is a question of how widely "public authorities", which are the only bodies specifically enjoined to observe the provisions of the convention, are defined.
At first sight, the amendment appears to be a drafting amendment, as it is, but it is an important one. Clause 6(1) has, I think, an unintended effect on the Bill. It states:
"It is unlawful for a public authority to act in a way which is incompatible with one or more of the Convention rights".
The amendment seeks to leave out the words "one or more of', so that the subsection will read,
"incompatible with the Convention rights".
That is because in some cases and, importantly, in the case of Article 8 (which guarantees privacy) and Article 10 (which gives the right to free expression) those two articles have to be balanced one against the other. What I am sure is an unintended effect is produced if attention is drawn only to one of those articles.
Perhaps I may give the Committee an example. The BBC is undoubtedly a public authority under the Bill as drafted. On the whole, the BBC is pretty good at observing the decencies of privacy. If there is one criticism to be made, it is perhaps that, like most photographers, the BBC's photographers seem to be most particularly engaged by expressions of human grief. They tend to take photographs of persons who are in tears after suffering some grievous sorrow. There is an example—it does not relate to the BBC—which came to the notice of the Press Complaints Commission and was upheld, of a local newspaper photographer photographing some sorrowing relatives as they returned from a funeral. Supposing the BBC had done that: it could be alleged that the BBC had offended against Article 8 which guarantees privacy, but it would have been entitled to say in an appropriate case that that article had to be balanced against the article giving a right to free expression.
This is an extremely well drafted Bill, as has been consistently pointed out in this Committee. That is not due merely to the draftsman (although this is obviously a most able draftsman); it is also due to my noble and learned friend because this is very much a Minister's Bill and its various components have been extremely accurately and skilfully fitted together so that it is a coherent and cogent whole. However, as the noble Earl, Lord Russell, indicated at an earlier stage, it is nevertheless a human artefact and human artefacts are liable, like all human endeavours, to be fallible. I suggest that there is a mistake in directing that one of the convention rights is sufficient to put the public authority in peril. As I see those two crucial convention rights operating, they have to be held in balance and the point of balance will, I think, be the public benefit.
Justice will hold the scales of justice with those two convention rights, one in one pan and one in the other, and will weigh the one against the other, the fulcrum being the public interest so that if there is only one to be considered, the Bill does not operate as I am sure that the Government and all those noble Lords who support the Bill, as I do, intend it to operate. I beg to move.
Lord Williams of Mostyn: I am most grateful to the noble and learned Lord, Lord Simon of Glaisdale, for his welcoming words about the general quality of the
756
drafting of the Bill. I know that the officials who hear his words will welcome them, particularly as they come from such a distinguished source. I entirely endorse the noble and learned Lord's description of the internal code of the BBC as being a strict model which is generally regarded as a suitable code and which seems to be vigorously policed by the BBC.
As the noble and learned Lord the Lord Chancellor said on a number of occasions, what is intended as a consequence of the Bill, should it become law, is that a balancing act will necessarily have to be undertaken between Article 8 on privacy and Article 10 on freedom of expression. I entirely endorse what the noble and learned Lord, Lord Simon, said about the balancing exercise.
On earlier occasions the noble and learned Lord has sometimes chided us for having too adamant an approach towards any proposal for improvement. We have considered this amendment (because it might have been reached on an earlier occasion) and we should like to reflect on it with care and on whether the phrase which ultimately appears in the Bill should be,
"one or more of the Convention rights",
as at present or, if the noble and learned Lord's amendment is successful, "the Convention rights", or the third alternative, which has been suggested in the interval between our first consideration in Committee and today, which is "a Convention right". I hope that the noble and learned Lord will accept my assurance that we shall reflect carefully on those three alternatives—that is, on the noble and learned Lord's proposed amendment, on the present wording, and on the further suggestion of "a Convention right"—and that we shall return to the matter at the next stage.
3.30 p.m.
Lord Simon of Glaisdale: That is a very welcome change from the first day of Committee when we had unremitting negatives from the Government. On that occasion, Members of the Committee were probably reminded of Goethe' s description of Mephistofeles as the spirit that always says "No". I would be very reluctant to see my noble and learned friend the Lord Chancellor in the company of Mephistofeles. I very much welcome the change indicated by the noble Lord, Lord Williams of Mostyn, that the Government will reflect upon the matter. It is a notable approvement. Therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Coleraine Lord Coleraine moved Amendment No. 31A:
Page 3, line 40, at end insert ("except where the public authority is a person who is a public authority by virtue only of subsection (3) and the nature of the act is private").
The noble Lord said: This is a drafting amendment. If I do not altogether agree with what the noble and learned Lord, Lord Simon of Glaisdale, has just said about the drafting of the Bill, I should point out that in this case I am seeking to make good drafting better. I was not able to be present when the Bill was discussed on Second Reading, but I have read and re-read all that was said on that occasion.I should like to think that my

757
amendment is constructive and that I may receive the same kind of warm commendation for it as the noble and learned Lord has just received for his. However, if I do not, I feel sure that it will tease something more out of the Government with regard to the complications surrounding the definition of "public authority" in Clause 6.
The amendment deals with subsection (3)(c), which provides that the expression "public authority" should include,
"any person certain of whose functions are functions of a public nature".
The drafting that I would also like to see improved is to be found is subsection (5) which says:
In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(c) if the nature of the act is private".
I readily concede that, by all the normal standards of convoluted drafting, that subsection is crystal clear. Nevertheless, I found it bizarre to read that a person may ape the chameleon and be a public authority at one moment in relation to an act the nature of which is not private, but not be a public authority the next moment where the nature of the act is private. It seems to me that if a simple drafting amendment could allow a public authority to be a public authority for all the Bill's purposes, without in any way altering the sense of the legislation, it would be useful and make the understanding of what the Administration means by a "public authority" just a little more clearer and more accessible.
With my amendment, and my support for Amendment No. 42 which is tabled in the name of my noble friend Lord Wakeham—to leave out subsection (5)—I seek to provide that under subsection (3)(c) a "public authority" does not act unlawfully if it is acting privately. I hope that that suggestion will find favour with the Government. I beg to move.
Lord Henley: I should like to add a few words to what my noble friend Lord Coleraine said about his amendment, which he described merely as a drafting amendment. I have to say that we on this side of the Committee find Clause 6 rather difficult. I believe that the noble and learned Lord the Lord Chancellor said that "public authority" was fully defined in Clause 6. We have tabled a number of later amendments with which we shall be exploring that point. I should imagine that we shall be exploring it after the Statement has been repeated by the noble Lord the Leader of the House.
It would, therefore, be of some use if the noble Lord who is to reply for the Government could say a little more when responding to my noble friend's amendment on the definition of "public authority", so as to allow us a little time to ponder over such matters before we come to deal with later amendments on the clause. I certainly find it a very difficult clause to understand—and I speak not as an eminent lawyer as most speakers in this debate have been—and, indeed, a very difficult concept to understand. It would be useful to have such matters explained. I appreciate that it is often most difficult to
758
explain them in language which a simple person can understand, but I would like to hear the exact meaning of the definition explained in simple terms.
Lord Lester of Herne Hill: As one of the later amendments has already been referred to and because of the way in which the amendments are grouped, I feel that I ought to say a few words reflecting the other side of the coin as regards Amendment No. 43, which stands in the name of my noble friend Lord Meston. My noble friend is currently detained in one of Her Majesty's courts in Chelmsford and apologises for his absence.
If one looks at Amendment No. 43, it will be seen that, as I shall explain later, it is designed to ensure that the mere fact that something is categorised as private will not necessarily take it outside the scope of the clause, especially as regards certain employment relationships. I shall return to that aspect later, unless the Committee would find it more convenient for me to deal with it now. I should point out that the matter has been raised by the Bar Council and is of some importance.
Lord Williams of Mostyn: If the noble Lord, Lord Lester, will forgive me, I shall not deal with Amendment No. 43 now bearing in mind the groupings which I believe have been agreed. We suggest that "public authority" is plainly defined in Clause 6. When the Bill is enacted, one will be dealing with two types of public authority—those which everyone would recognise as being plainly public authorities in the exercise of their functions, and those public authorities which are public authorities because, in part of their functions, they carry out what would be regarded as public functions. Examples vary, but I believe that the courts will have in mind changing social economic and cultural conditions when they come to consider particular decisions on particular aspects of a public authority.
We suggest that the purpose behind the noble Lord's amendment is unnecessary because the Bill already brings about what he wishes to achieve. As Members of the Committee have seen, Clause 6(1) makes it unlawful for a public authority to act in a way which is incompatible at present—subject to reflection on the amendment that we have just discussed—with convention rights. Clause 6(3)(c) provides that a "public authority" includes,
"any person certain of whose functions are of a public nature".
Clause 6(5) provides that:
"In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(c) if the nature of the act is private".
I believe that my noble and learned friend the Lord Chancellor gave an illustration on an earlier occasion. For example, Railtrack has statutory public powers and functions as the safety regulatory authority; but, equally, it may well carry out private transactions, such as the disposal of, the acquisition of, or the development of property.
If one follows the scheme through, we suggest that it is perfectly capable of being understood. The amendment would exempt from the prohibition in

759
Clause 6(1) a public authority falling within Clause 6(3) in respect of its private acts. However, I venture to suggest to the Committee that that is already achieved, we say satisfactorily, by subsection (5). The other public authorities specified in Clause 6(3) are courts and tribunals which, we think, are in a very similar position to obvious public authorities, such as government departments, in that all their acts are to be treated as being of such a public nature as to engage the convention. I hope that I have given a helpful explanation—indeed, my response was intended to be helpful—and I ask the noble Lord to withdraw his amendment.
Lord Coleraine: Having heard what the Minister said in regard to my amendment, I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Lord Hoyle: My Lords, I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Jobs Summit
3.40 p.m.
The Lord Privy Seal (Lord Richard): My Lords, with the leave of the House, I should now like to repeat a Statement made in another place by my right honourable friend the Prime Minister on the special European Council on employment in Luxembourg on 21st November which was attended by my right honourable friends the Prime Minister and the Foreign Secretary. The Council's conclusions have been placed in the Library. The Statement is as follows:
"Unemployment in Europe represents not only personal tragedy on a huge scale but also a tremendous waste of economic talent and potential. At the Amsterdam European Council in June jobs were given the top priority they should always have had. We agreed then a new treaty framework for action on employment, the Employment Chapter. The aim was a co-ordinated strategy to promote a skilled, trained and adaptable workforce and flexible labour markets responsive to economic change. At Luxembourg, the first time the European Council has met just to discuss jobs, we decided how to put this Amsterdam aim into effect.
"Let me make it clear at the outset that we are not creating new EU competences or new EU spending programmes, although we have agreed some useful redeployment of existing resources. What we can agree at European level is the broad lines of a practical approach to job creation. We can commit ourselves to finding and following best practice wherever appropriate. What we therefore sought and agreed was a set of common practical objectives to be enshrined in non-binding guidelines for national employment policies.
760
"At the heart of Europe's new approach is the need to create the right macroeconomic framework and to move more rapidly on the structural reform of labour markets. Removing barriers to the completion of the single market remains crucial, but the role of small firms in creating jobs is now recognised as central, as is the need to create a simpler regulatory and administrative environment for business. These are all ideas which we have promoted and to which we can subscribe wholeheartedly.
"There were three points at the heart of our discussions: first, an adaptable and skilled workforce responsive to economic change. The emphasis must be on education, skills, technology and an active employment service. We need flexibility, not in the sense of hire and fire management but in the sense of businesses and employees being able to respond to new and changing economic conditions. Secondly, there is entrepreneurship, especially small business. This is where many of the new jobs we need must come from, and we must nurture this sector. Thirdly, we must tackle structural unemployment. This cannot be lowered simply by demand management. We want neither laissez-faire nor old-style state intervention but targeted measures specifically directed at the long-term and young unemployed.
"Under adaptability, the Council endorsed the idea of modernising work organisation, including flexible working arrangements to help companies be both productive and competitive. In an important step forward, it also agreed to examine any new regulations to make sure they reduce barriers to employment and help labour markets adapt to structural economic changes. This was a particular British initiative.
"Under entrepreneurship, the focus was the vital role of small and medium-sized enterprises. It was agreed that member states should make starting and running businesses easier by reducing the overhead costs and administrative burdens, in particular of taking on extra staff. More widely, it was agreed that taxation and benefit systems should be made more employment friendly, for example by reducing the tax burden on both labour and other non-wage labour costs where they are at levels which hinder job creation. Some countries are keen to consider the reduction of VAT on labour-intensive services not exposed to cross-border competition.
"To tackle structural unemployment, the Council agreed an approach based on employability. There should be specific commitments to improve the ability of individuals to get and retain jobs, with special emphasis on youth and long-term unemployment. In particular, all member states undertook to offer a fresh start in terms of training or similar measures to all young people unemployed for six months and all adults unemployed for 12 months. A specific target of 20 per cent. was set for the number of unemployed benefiting from active measures to improve their employability. There was also extra emphasis on ensuring that young people do not leave the school system too early and inadequately equipped for the jobs market.

761
"The Council also emphasised the importance of equal opportunities. In particular, there should be commitments aimed at tackling gender inequality, making it easier for parents to reconcile work and family life and addressing the problems of the disabled in the workplace.
"The actual guidelines setting out these practical objectives and commitments in more detail will be adopted by the end of the year. It will then be for member states to prepare national action plans on how they intend converting these into action. These plans will be subject to scrutiny by other partners. Each member state will be able to apply them in accordance with national circumstances but will be expected to address all the objectives in one way or another. We will review progress first at the Cardiff European Council in June.
"The Luxembourg Council also welcomed extra mobilisation of the resources of the European Investment Bank to improve economic performance. One billion ecu from the bank's reserves will be used over three years to finance new initiatives to help high tech SMEs. Of this, 125 million ecu has already been earmarked for a new European technology facility. The EIB is also starting to lend in the health, education and environment sectors and is stepping up its support for trans-European network projects. In addition, the European Council agreed in principle to redeploy 450 million ecu from the existing EC budget over three years to help job creation, again particularly supporting innovative and job-creating small and medium-sized enterprises. These financial measures will be helpful, but they of course play only a supporting role: reform of labour and product markets is the real key to improving Europe's employment performance.
"The Jobs Summit marks Europe's commitment to a new approach to create jobs and security for the future, not the old-fashioned free-for-all resulting in widespread social exclusion, nor loading more costs and regulations onto business, but a third way: investing in people, in their skills, in small businesses, and setting a stable, long-term framework for business and industry to plan for the future and create jobs. Education and training are the keys. The so-called European social model is being refocussed, based on a modern approach of reform, flexibility and investment in people. We aim to involve both sides of industry fully in this approach.
"We will use the UK Presidency next year to ensure that this is carried through in order to make a real difference to employment, employability and social inclusion. Luxembourg agreed an approach for the long term. Effective follow-up is vital.
"At Amsterdam we showed how a united British Government with a clear direction in Europe could make Britain's voice heard. At Luxembourg we showed how a constructive British approach could result in a new direction on tackling unemployment, an approach based on competitiveness, employability and labour market reform, combining job creation with a fair and cohesive society.
762
"We recognised at a European level the terrible personal damage which occurs each time an individual who is willing and anxious to work is still unable to find a job through no fault of his own. That is why this Labour Government are working for a Europe that is working for jobs. This approach is right for Britain, right for Europe and right for the people of Europe."
y Lords, that concludes the Statement.
Viscount Cranborne: My Lords, the whole House will be grateful to the Leader of the House for repeating the Statement. I apologise that I appear to have given him my cold which must have made the job more onerous than usual. I hope that he will rapidly recover.
We welcome the fact that the European leaders discussed unemployment in Luxembourg. As has been pointed out on all sides of this House over many years, it is the greatest problem facing western Europe and, as the Statement says, Europe's young people in particular. Of course we welcome many of the aspirations expressed in the final communiqué, particularly measures such as the plan to do more to help the disabled and the aspiration to reduce the tax burden on wage and non-wage costs.
However, there are a number of matters to which I wish to draw attention. First, it is a pity that this huge practical problem was not addressed by our partners in Europe a little earlier. After all, your Lordships will remember that the previous Prime Minister, Mr. Major, was constantly pressing on our European colleagues the need to turn away from costly interventionist strategies and so help business and employment to grow. He received precious little support from the Labour Party at the time.
Secondly, when joblessness is addressed at a summit, it produces, perhaps typically for any summit of this kind, what appears to be a miasma of rhetoric rather than real, firm conclusions. Judging from the press reports we have read on the results of the summit and in view of references to "rows and confusion", one must ask oneself whether the heads of government are not to be congratulated on being able to agree a joint communique at all. Therefore, is this merely a papering over of the cracks or is there real substance behind it? Shall we really be able to look forward to action of the kind we have been advocating, which certainly the Prime Minister seems to have taken to heart, at least in part?
In that context, it was instructive that the French and British Prime Ministers occasionally, in their comments, appeared to have been at entirely different conferences. M. Jospin hailed it as a triumph for what he called a social Europe in which there would be more stated interventionism to create jobs. That is rather different from the rhetoric we heard from the Leader of the House this afternoon. Do the British Government retain a veto on social and employment affairs to prevent the kind of ideas which M. Jospin appears to be proposing? If the answer is anything but an unqualified "yes", the prospects for jobs in this country can only be damaged.

763
Is it not also the case that we should agree with the German Chancellor on one matter; his remark that,
"a patented recipe does not exist for everyone"?
I was glad to have the comfort of those words given the news we heard this morning; namely, that the independent council of economic advisers in Germany—the so-called five wise men—has warned that German unemployment may well pass 5 million this winter. I am sure that the Leader of the House will remember that the previous government scrupulously resisted the European model of more regulation and European Union interference in employment policy. We were criticised for that from the Benches opposite but the results entirely vindicate our stand. After all, our unemployment levels are lower than those of all our major European partners. Youth unemployment is falling at a rate that the Government's loftily named welfare to work programme never envisaged, long before government measures have come into effect. Small businesses are being formed and are expanding at a rate which would be the envy of most of our competitors. In fact, they are the envy of most of our competitors if newspaper reports are correct about the number of French businesses and individuals coming to settle in this country. One might think that even the Prime Minister, who so enthusiastically attacked each and every one of our measures in government, might have had the spirit to defend that British model without equivocation, instead of talking in—what has become a rather hackneyed phrase in my party—the third way.
What is that third way? It sounds like a stale rhetorical device, a path between laissez-faire economics and old-style intervention and protectionism. It smacks of the worst excesses of the mixed economy of the 1970s, cloaking policies which are pernicious in their effects with anodyne declarations against sin and in favour of motherhood.
It is true that the Prime Minister makes a nod in the direction of flexibility and deregulation, and we must welcome that. But the reality of the past five years is that experience has shown that the British route of deregulation is the best way to job creation and that the European route of regulation is a job destroyer. Therefore, I can see why the Prime Minister talks of businesses being able to respond to new conditions. I can see that very clearly. But then why does he shackle them with the social chapter that need never have been signed in the first place?
I can see why the Prime Minister talks of nurturing the small business sector. We are all in favour of that. But if so, why is he planning to hit many in that sector with a minimum wage and the working time directive? Equally, I can see why he talks of tackling structural unemployment. In that case, having inherited an economy which was the best job creator in Europe, why is he planning to tie Britain into a Europe-wide employment model?
Once more, I fear that there is a huge disparity between government words and deeds on the ground. For all we have heard today, is not the reality that all the actions the Government have taken since May will
764
make it more difficult for people to find jobs and keep them and for small businesses to expand? We have shown already that competition and free markets in a strong legislative framework are what create jobs, not a spurious middle way which looks to corporatist and centralised solutions.
Lord Ezra: My Lords, from these Benches we also welcome the Statement. We consider that the concentration by the recent meeting of the European Council in Luxembourg on unemployment was a big step forward and to the extent that that was due to the initiatives of the British Government, we congratulate them.
Of course this will be an extremely difficult area, given the different approaches in the different countries. But the fact that they were prepared to come together and devote a whole Council meeting to the subject is highly laudable. It is important also that there will be a firm follow-up; that guidelines are to be agreed by the end of this year; and that individual government action plans must be prepared in time for the Cardiff Council meeting in June. Will there be adequate opportunity, when the British national action plan is prepared, for that to be debated fully in this House before the Cardiff meeting takes place? It is important that the Government should be aware of parliamentary opinion on the subject?
I turn to the detail of the Statement. Flexibility is obviously an extremely important issue. There is the UK flexible model as opposed to the continental social model, and it is contended in the document that somehow we have started to achieve a marriage between the two. How serious are the intentions of other countries in making themselves responsive to market changes? The British press at any rate was somewhat critical. One does not necessarily need to go by what the press says but it was felt generally that there was not very much progress in that direction. What about social charges? Was that subject tackled? Was there any response from the other countries that that is something which they regard as having to be urgently attended to?
On the role of the SMEs, it is satisfactory that more attention will be paid to small and medium sized firms and that certain measures backed up with financial support will be adopted. However, bearing in mind the enormous number of such firms throughout the European Union, the sums which are talked about are fairly small. Will it be open to individual member countries, if they so wish, to add to those resources in their own action plans?
On structural unemployment, again the measures which are contemplated are highly desirable but all would require additional resources. As I understand it, those resources will be made available by reallocating existing Community resources. Will that be sufficient for this important purpose? Taken all together, this is an important step forward. We very much welcome it. We look forward to the publication of the guidelines and in particular to the UK action plan.
Lord Richard: My Lords, I am grateful for much of the response. I thought the noble Lord, Lord Ezra, gave

765
a pretty unqualified welcome to what was achieved. The noble Viscount, Lord Cranborne, did not give an unqualified welcome. I have some sympathy for him. He was not quite sure whether to say, "Yes, it is absolutely splendid and it is all due to us" or "They have not really achieved anything". I say respectfully to the noble Viscount that it is difficult to run the two together. Of course, we are not pretending that this is anything greater than it is. However, it is the first European summit that has been devoted to employment. It is the first time that member states have committed themselves to something substantial and positive and have committed themselves to action as opposed to rhetoric. Further, it is the first time in my experience—I had some limited experience in dealing with these matters when I was in the Commission—that there has been some cash on the table, modest though it is.
The noble Lord, Lord Ezra, asked whether 450 million ecu would be sufficient. I do not know. Of course, it is not sufficient to create jobs throughout the whole of the Community but it is enough to start. It is also an important step that the European Investment Bank is making no fewer than 1 billion ecu available over three years. Whether that will be sufficient I cannot say. What is important is that not only have a framework and guidelines been agreed but, as the noble Lord, Lord Ezra, pointed out, there is a mechanism for following that up. I know as well as anyone in this House that all too often European Councils have emerged with forms of words which on the face of it look reasonable but little has happened afterwards. That is true not only of the European Council but of Councils of Ministers too. The test will be whether member states take this measure seriously. All I can say to the House is that on the evidence of this European Council they are taking it seriously. They all agreed to it after a period of bargaining and there is a follow-up procedure. Action plans must be drawn up. These will be public in the sense that each member state's action plan will be available to the others and they will be discussed at the European Council next June.
The proof of this particular pudding will be how many people in employment will be capable of eating it. However, some time will have to pass before that is evident. I hope that I do not claim too much for the measure. The noble Viscount asked me a large number of questions about policy in Germany and in France and whether the French Prime Minister was accurate in his description of the Council, or whether the British Prime Minister or Chancellor Kohl, were accurate in their descriptions. He will know that countries tend to meet at European level and then issue their own press statements. I am not responsible for what M. Jospin says, nor Chancellor Kohl nor Sig. Prodi, nor, I am happy to say, for what any of them say. It seems to me that what is important is what they agreed to. It is that which we have and it is that which will be helpful in the long run.
4.5 p.m.
Lord Campbell of Alloway: My Lords, what is the attitude of Ministers to the minimum wage? What is the attitude of the Government now to the minimum wage? There is nothing said about it in the Statement. Apparently
766
nothing was agreed to and yet this is an important issue which we discussed in the House long before the election. We always said that it would make for unemployment and that it was not useful for small businesses. The Labour Party always took an opposite view. Can the noble Lord explain where we have got to now?
Lord Richard: My Lords, the Labour Party fought an election in favour of a minimum wage. It was elected as a government in favour of a minimum wage. It is still in favour of a minimum wage and has started the procedure for implementing a minimum wage. The Minimum Wage Commission is set up and it will consider the appropriate level of that minimum wage.
I wish to deal with a point which is perhaps implicit in the question of the noble Lord, Lord Campbell of Alloway. Of course the European Council did not consider issues such as a minimum wage for workers in the United Kingdom; that is not part of its remit. It considered the extent to which action in common, based upon a commonality of guidelines—if I can put it that way—could be taken and how far individual countries could go along that particular road and make a dent in the unemployment figures. That is what this measure is about. One should neither elevate it to a position above its importance nor—I say this with great respect to the other side—should one downgrade it to a position that it clearly does not deserve. It comprises a number of useful steps in the right direction in which I think Europe and this country should go.
Lord Bruce of Donington: My Lords, in the nearly quarter century that I have had the honour of being a Member of your Lordships' House I have never heard the report of an international gathering, particularly that relating to the European Community, that contains so much waffle and so little substance. It seems to me to have been assumed by all those concerned at the conference that unemployment essentially was the fault of the people who were unemployed and that somehow the onus was strictly upon them to reach that standard of qualification which would ultimately—there is no date fixed—lead to their being absorbed into industry and into various services. I see that I have the agreement of the noble Viscount, Lord Cranborne, as he nodded. However, I point out to him that he himself assumes that the figure of unemployment in the United Kingdom bears no relationship to the figures that have been published which relate, in the main, to claimant unemployment, whereas the quarterly survey that is carried out reveals authentically that unemployment in the United Kingdom amounts to 2,800,000, and in all probability is somewhere nearer 4 million. What is offered by the Community at large in the conference that has taken place apart from a lot of pious platitudes that reveal no resolve whatever to solve the problems of unemployment but merely paper it over and make its existence politically palatable to the citizens of Europe? Surely we require a little better than that.
Will it not immediately be agreed by Her Majesty's Government that no matter what they say at these conferences—which come out with such platitudes

767
—the economic development of the Community is following precisely the rules of Maastricht which lay down precisely the economic and financial policies to be followed, and which have been followed, resulting in an increase from 15 million to 18 million in total unemployment in Europe? Let it not be assumed for one moment that unemployment, even at the existing claimed figure of 1,300,000, which is scandalous, can be maintained concurrently with the statement that we as a country, or Europe as a continent, is following sound economic policies. Sound to whom, my Lords? Sound to the City of London? Sound to the financial interests and the capital interests in Europe at large, and in this country in particular, but which inflict unnecessary unemployment and suffering upon not only the members of the United Kingdom but also the workers in Europe as a whole?
Lord Richard: My Lords, my noble friend says that he has attended this House for 25 years and has never heard a report from an international gathering with so much waffle and so little substance. I have not sat in this House for 25 years. However, during the seven or eight years that I have attended here, I have heard many interventions from my noble friend—and they are many, far more than reports put forward from international conferences. I do not think that even from my noble friend I have heard an intervention which, frankly, was such a travesty of the real situation.
My noble friend began by denying the value of training, as though somehow or other those Governments which took part in this conference were blaming the unemployed because they were not properly trained. No, we are not blaming the unemployed but we are blaming the system which has left them untrained. We are setting up a set of structures which will train them. For many years I have had a basic belief that if you train someone to do a job, on the whole he has a better chance of finding work than if he is untrained. I am bound to say that I was flabbergasted to hear my noble friend advance his argument today.
My noble friend said that nothing was agreed. For the first time in my experience there is money on the table. Cash is available to small and medium-sized enterprises in order for them to try to take on more labour. There is an agreement at European level that all the nations of the Community will advance in the same direction as regards unemployment. Not only that, there is a set of agreed guidelines; an action plan for each country is to be agreed; action plans for each country are to be followed up.
I would have expected that the attack by my noble friend Lord Bruce of Donington would have been that the conference infringed his sacred principles of subsidiarity and national competence rather than that the European Council had not gone far enough.
Baroness Williams of Crosby: My Lords, I add my congratulations to those given to the noble Lord, the Lord Privy Seal. It is refreshing to see
768
co-operation between member states of the European Union after such a long period in which such co-operation was virtually impossible. That co-operation appears to have commended itself in a substantial way to the electors of Winchester—somewhat more than have the nationalist attitudes of the noble Viscount, Lord Cranborne. Perhaps I may also say how refreshing it is to see the attempt to reduce non-wage costs and to introduce family friendly policies.
In asking the noble Lord these questions, I should declare an interest as the chairman of the job creation competition programme in the European Union. First, does the noble Lord recognise that skill shortages are re-emerging already in countries like the United Kingdom and the Netherlands, where unemployment is falling albeit not so fast as the official figures in both countries suggest? Secondly, at the Job Summit was there discussion of further measures which might be taken to encourage skilled training in the small and medium-sized enterprises to which the noble Lord, the Lord Privy Seal, referred? Finally, with regard to the co-operation principles underlying employment programmes put forward by member states, will the noble Lord confirm that the purpose of the third way was to reduce unemployment without the massive increase in poverty and inequities which unquestionably defaced the record of the previous government?
Lord Richard: My Lords, I thank the noble Baroness for her introductory remarks.
Perhaps I may say a word about skills shortages. Many years ago when I was in Brussels—we were at the height of a major depression—it struck me that the ultimate irony and expression of incompetence on the part of member states would be to emerge from that recession needing skilled labour which was not there. It could only mean that our training policies had failed. Whether there was any specific discussion in relation to training in the SMEs I do not know. I shall inquire. If there is anything I can usefully add, I shall of course tell the noble Baroness.
The noble Baroness is right when she describes the third way principle. It is an attempt—I think that it is worth an attempt—to see to what extent one can have all the nations of Europe co-operating in a certain direction without committing themselves over much on one side or the other to a plain and perhaps over-precise statement of economic ideology.
Lord Beloff: My Lords, on reflection, does the noble Lord, the Leader of the House, agree that what has come out of this summit is an agreement that different member states should pursue the reduction of unemployment, which is their common goal, by their own measures; and that there is no need to worry about subsidiarity because it is there? On hearing the statements by the Prime Minister of France to go no further, is it not likely that when the action plans are

769
circulated the French and, let us say, the United Kingdom action plans, will be substantially different? In the light of that, if the noble Lord agrees with me, will there not be something to be said for not having summits? Summit meetings remove from our affairs the Prime Minister who has many serious issues to confront. He cannot benefit from this constant jumping onto aircraft which seems to be a characteristic of modern statesmanship. Would it not be good to have a moratorium on summits for a year or two to see whether in the meantime we and other countries can reach the goal of reducing unemployment—a goal that we all cherish?
Lord Richard: My Lords, as regards the last part of the noble Lord's question, before 1st May of this year I was in favour of almost continual summits, preferably at long distances from the United Kingdom. My attitude on the absence of Prime Ministers from the United Kingdom may have modified slightly since then. However, of course these are important issues. They are important discussions on important subjects.
The noble Lord, Lord Beloff, says that if the countries act according to their own national plan, why bother with a summit? I was trying to think of a phrase which summed up my perception of the issue as opposed to his. The summit seeks to achieve guided co-operation, if I may use a phrase which will appeal to the noble Lord. These proposals are not compulsory. There is an agreement to co-operate for sensible, common aims. There are broad agreements on the guidelines which govern that co-operation. The proposal does not seek to go further than that at this stage. Whether or not one is in favour of being in the European Union, I cannot for the life of me see what is wrong with that.
Lord Monkswell: My Lords, I thank my noble friend for repeating the Statement. I wonder whether he agrees with me that the reduction in barriers to women entering the job market is not merely teaching them about apple pie and motherhood, as the Leader of the Opposition seems to think. Am I correct in thinking that while our Prime Minister has contributed ideas which, with the new Labour Government, are fresh to European thinking, Britain has also been receptive to ideas developed on the Continent of Europe? Will he confirm in particular that our emphasis on reducing barriers to women and disabled people entering the job market received a warm welcome among our European partners, and that their emphasis on injecting demand into the economy was welcomed by the Prime Minister, as evidenced in investment by the European Investment Bank?
The general emphasis on training as a prerequisite to ensuring that the skills shortages referred to do not become significantly apparent is welcome right across the board. I am sure that there is agreement right across Europe on that important measure.
Lord Richard: My Lords, I am in the happy, almost totally unprecedented position of being able to agree with every word that my noble friend has said.
770
It does not happen all that often; but on this occasion, I do. He is quite right. In this area, as in many others, we have ideas, some of which our European partners believe are helpful; they have ideas which, eventually, the British Government believe are helpful.
One is in a slightly reminiscing mood this afternoon. I am not quite sure why. One of the pleasures I receive from examining recent events in Europe is seeing that that terribly modest little proposal of mine, which was rubbished by the previous government for many years—namely, the parental leave directive—is now to be implemented. That is quite a good example of the way in which the Government now approach these matters. My noble friend is quite right.
Baroness Carnegy of Lour: My Lords, an interesting point made by the noble Lord was that some countries have it in mind to reduce VAT in some areas. Will he comment further on that? Will he say which countries have it in mind, and in which areas; and was the United Kingdom among them?
Lord Richard: My Lords, the answer to the final part of the question is no. What I believe happened is that some countries felt that in certain local areas there were small-scale enterprises which would benefit from a reduction in VAT in that specific sector and in that particular country. It had nothing to do with an overall European approach, but was limited to small areas. There was a certain amount of discussion about the matter. It was felt that the approach might be worth exploring, and if one country wanted to include it in its action plan, clearly it would have to be considered in the future. There is no commitment whatsoever on the part of the United Kingdom Government.
Lord Peston: My Lords, if we are wandering down memory lane, perhaps I may say, first, how right the Government are in emphasising the importance of investment in human capital: in educating and improving the training of the labour force. Some of us have been saying that for 30 years or more. There is nothing new about it. Is my noble friend aware that that makes the labour force more employable; it does not make the labour force more employed? Unless I misheard the Statement, it seemed to say that these days no one believes in demand management. I ask my noble friend to bear in mind that if, next year, we follow the lead of the Bank of England, which has already decided that demand is rising too rapidly—and it appears as if the Treasury believes that as well—most of us believe that, if we were then to cut back on demand for other reasons, unemployment would rise, despite everybody's good intentions with respect to the labour force. When my noble friend next meets his right honourable friend the Chancellor of the

771
Exchequer, I hope that he will point out that demand still has a central role to play in determining how many people are employed.
Lord Richard: My Lords, I cannot imagine that my right honourable friend the Chancellor of the Exchequer would disagree with somebody so economically literate as my noble friend.

Human Rights Bill [H.L.]
4.25 p.m.
House again in Committee on Clause 6.
Lord Wakeham Lord Wakeham moved Amendment No. 32:
Page 4, line 4, at end insert ("or
(c) where the public authority is a court or tribunal and the parties to the proceedings before it do not include any public authority.").
The noble Lord said: In moving this amendment, I shall also speak to Amendments Nos. 33, 35 and 42.
As the Committee will know, it is right for me to declare an interest as chairman of the Press Complaints Commission. The commission's job is to protect the legitimate expectation of privacy on the part of individuals—but to do so through self-regulation rather than statutory control.
Let me begin by saying that I have no great problem with the principles of the convention. My problem is not with the principle, but with the method. In short, the detail of the Bill and the consequences of that detail seem to do something which I profoundly do not want to happen; nor I believe do the Government. The Bill as drafted would damage the freedom of the press and badly wound the system of tough and effective self-regulation that we have built up to provide quick remedies without cost for ordinary citizens. It would inevitably introduce a privacy law, despite the Government's stated opposition to one.
As will be clear, I speak not as a lawyer but as a layman. From that standpoint, it seems to me that the first problem arises because of the role of the courts as public authorities enforcing the convention and developing the common law. As I understand it, it will therefore be possible for the courts to use the convention not just in respect of disputes between individuals and public authorities but in disputes between private individuals.
Again, that is contrary, as I understand it, to the Government's previously and clearly stated intentions. Indeed, the White Paper accompanying the publication of the Bill stated that,
"the time has come to enable people to enforce their Convention rights against the State in the British courts".
No mention was made of private individuals or organisations.
In my view the Government were right first time. Incorporation of the convention should not be used to enlarge the remedies available in private disputes. It
772
must be made clear, as the Government have maintained before and since the election, that it is to be used to curb the power of the state.
I have tabled two sets of amendments to clarify that point and to prevent the courts being dragged into disputes which are nothing to do with public authorities. The first set seeks to prevent the courts using the convention to interfere in issues relating to privacy where those are matters between private parties and do not involve the state. I might add that I think the amendment tabled to Clause 9 by the noble and learned Lord, Lord Wilberforce—Amendment No. 60—relates to the same point.
My amendment aims to stop the development of a common law of privacy. Such a law could never be as effective as self-regulation in safeguarding the rights of individuals. And such a law would seriously erode the freedom of the press, which has been a pillar of our democracy since the first Bill of Rights in 1689.
It would also be highly damaging to ordinary people—in other words, the great majority of those who from time to time are affected by media intrusion—leaving them without the protection of self-regulation. For most people, going to law to protect their privacy would be a ruinously expensive business which few could afford. They simply would not do it. Given that, as I know from experience of the Press Complaints Commission, very few cases of invasion of privacy are clear-cut, I do not believe that the plan of the noble and learned Lord the Lord Chancellor for a "no-win, no-fee" system of costs will work in these kinds of cases.
If there is a law of privacy, fashioned by the courts, I fear that the newspapers will simply say to complainants, "Use it". That will be fine for the rich and the powerful, but it will be a remedy out of the reach of ordinary people. Indeed, where there is a problem with intrusion into the privacy of ordinary citizens, a law will simply make it worse than under tough self-regulation, not better.
I fully expect that the noble and learned Lord the Lord Chancellor will tell me—indeed, he has never sought to make any bones about it—that a judge-made law of privacy is on its way and that it may happen in a year or two anyway as the courts seek to advance, without Parliament's express approval or scrutiny, the law of confidence. With great respect, if I may say so as one who believes in the sovereignty of Parliament and has been Leader of both its Houses, that is no justification. If Parliament wants a law of privacy—which would be a fundamental change in our constitutional balance, to which I am, of course, opposed—it should pass one, not just acquiesce in the courts' creating one without its approval or scrutiny.
My second set of amendments seek to protect the work of the Press Complaints Commission and the system of self-regulation, which could be fatally undermined by this legislation if the PCC were held to be a "public authority" under the terms of the Bill. We need to ensure that the PCC is held not to be a public authority, not just for abstruse points of legal nicety, but because the future of self-regulation depends upon it.
If the PCC's adjudications on matters of privacy could be subject to subsequent action by the courts, my task of seeking to resolve differences, to obtain a public apology where appropriate or, if necessary, to deliver a reprimand to an erring editor would no longer be a practical proposition because the courts would be able to intervene after our work had finished. That would ensure that from day one the newspapers' approach to a complaint of invasion of privacy would be highly cautious and legalistic. The courts may also be able to award monetary compensation. My chances of making self-regulation work for the benefit of ordinary people, and without cost to them, would be minimal.
I had intended to pose a rhetorical question about whether the PCC was a public authority in terms of the Bill in order to demonstrate that uncertainty existed on this point. As the noble and learned Lord the Lord Chancellor knows, there was until recently legal opinion from a most distinguished quarter that the PCC was not within the terms of the Bill. However, an article in last week by David Pannick QC asserted, in stark contrast, that the PCC is caught by the definition. In addition, during the Second Reading debate the noble Lord, Lord Williams of Mostyn, suggested that this was a matter for the courts to determine.
It would have been unusual to proceed with such uncertainty because it left open an ambiguity which might have the effect of bringing disputes between newspapers and individuals within the scope of the Bill only by virtue of the fact that the PCC was declared a public authority. However, I can now answer my own question—and I am most grateful to the noble and learned Lord the Lord Chancellor for assisting me in this. He wrote to me this morning to confirm that, in his view, the PCC is a public authority within the terms of the Bill. He also confirmed the point that in privacy matters newspapers would be subject to interim as well as final injunctions under its terms. His letter confirms that, despite what had been said to the contrary, newspapers and magazines are within the terms of the legislation. In other words, we have a de facto privacy law on our hands.
In the courteous way that I would expect of him, the noble and learned Lord the Lord Chancellor seeks to reassure me that a newspaper will not go down to an injunction where there are "solid" public interest grounds, just as when in libel cases a newspaper says it will justify a story. However, the point is that in privacy cases the courts would inevitably err on the side of caution and would not refuse an injunction, despite the fact that a newspaper said that there was a public interest defence. The result would be that all newspapers would be bound by that injunction and it could be years before a full hearing took place. That, in my view, would be an end to investigative journalism.
It may be that these are merely unintended consequences and the Government have not yet had a chance to think through all the implications of what the noble and learned Lord the Lord Chancellor said in his letter to me. It may be that they should look very carefully at my amendments, which would have the effect of taking the PCC out of the terms of the
774
legislation and of preventing direct action against newspapers. These amendments, after all, simply help the Government to do what they always said they wanted to do: introduce legislation that applies only to public authorities and not to newspapers.
The noble and learned Lord the Lord Chancellor is an old friend for whom I have the highest regard and who, as he said at Second Reading, until May played an important role in establishing and nurturing the work of the Press Complaints Commission as a member of its Appointments Commission. I know that he feels neither that my fears are justified nor that there will be established a convenient law for the rich to avoid publicity or the corrupt to escape the spotlight of investigation. I know he thinks that a free press will be safe in the hands of the judiciary.
I am sure that he will tell us that the courts will interpret these matters in a sensible and reasonable way by giving due weight to Article 10 of the convention on freedom of expression. We may be told—as David Pannick set out in the article I mentioned earlier—that the courts may seek to leave delicate judgments on privacy matters to specialist bodies such as the PCC. All so well and good. But, if the Government agree with those points, they ought not to leave them to the discretion of the courts; and they should not leave the Bill unamended. These are matters too important to be left to chance. After all, we are tampering with the freedom of the press and with self-regulation not just for this moment but for all time to come.
I am grateful, as I said earlier, to the noble and learned Lord the Lord Chancellor for writing to me to clarify these matters and for doing so in a way that convinces me that there is a very serious problem with the Bill. Self-regulation has come on in leaps and bounds in recent years but, as I have often said, it is not perfect. I do not rule out further improvements over time, but that will be much more difficult to negotiate with a press subject for the first time ever to statutory controls and a privacy law.
In my view, judicial interference in matters such as this and the freedom of the press do not mix. I believe that the freedom of a responsible press can only really be safe in the hands of Parliament. The Bill, as the noble and learned Lord's letter to me confirms, takes the matter out of the hands of Parliament and in doing so introduces a back-door privacy law. I do not want that to happen because I believe that the practical effect for the ordinary people of this country who cannot afford the expense of going to law will be less protection, not more. I therefore strongly urge the noble and learned Lord the Lord Chancellor to look at these matters again before it is too late.
Lord Lester of Herne Hill: I hope it will be for the convenience of the Committee if I speak to Amendments Nos. 32, 33, 35 and 42 and at the same time to Amendment No. 39, the official Opposition amendment seeking to exclude the press and the broadcasting media from the scope of Clause 7.

775
Amendments Nos. 32 and 35 seek to replace the broad definition of "public authority" in Clause 6(3) by a narrow definition that would effectively exclude a wide range of persons exercising functions of a public nature from the obligation to comply with convention rights. For example, they would exclude the Independent Television Commission, the Video Recordings Authority, the Radio Authority, the Broadcasting Standards Commission, the Press Complaints Commission and the Advertising Standards Authority. Those are all bodies, whether public or private in the technical sense, which perform functions of a public nature. They are all subject to judicial review as public authorities, as, for example, is the City Takeover Panel.
I agree with David Pannick QC. Though I have not had the benefit of sight of the Lord Chancellor's letter, I agree with him also that there can be no doubt that the Press Complaints Commission would not only be judicially reviewable but also a public authority for which the United Kingdom would be nationally responsible under the convention if it unnecessarily restricted free speech.
The United Kingdom is responsible under Article 10 of the convention if any one of those public authorities exercises its regulatory powers in breach of the right to free speech under Article 10 or, for that matter, if it purports to determine someone's civil rights or obligations without a fair hearing in breach of Article 6. I say that all those bodies exercising public functions are excluded by the amendment because (a) they are not a "court or tribunal" in the words of Amendment No. 32 and (b) they do not,
"confer a legally enforceable right or duty on another person",
in the words of Amendment No. 35.
In spite of what has been said by the noble Lord, Lord Wakeham, I do not understand the mischief that this amendment seeks to remove from the Bill in respect of all those public authorities. It is surely essential that any person for whose breach of the convention the UK would be internationally responsible should be within the scope of Clause 6. The amendment will simply create a mismatch between our international obligations and domestic implementation.
I should add that it is in the interests of those regulatory bodies—including the PCC—exercising public functions to be subject to the court's supervisory jurisdiction by way of judicial review because they are protected by safeguards built into that supervisory jurisdiction, including the need to seek leave to apply against them for judicial review, fairly strict time limits, the limited scope for discovery and the discretionary nature of remedies. As regards Amendment No. 42, I am mystified by the proposed exclusion of Clause 6(5) since that serves the important purpose of making it clear that a person is not a public authority by virtue of Clause 6(3)(c) if the nature of the act is private.
Those may seem technical points. Perhaps I may now turn to the thrust of the amendment of the noble Lord, Lord Wakeham, and with it the amendment tabled in the name of the official Opposition which seeks to exclude
776
altogether from the scope of the duty to comply with convention rights the press and the broadcasting media. What is therefore contemplated by the amendment of the noble Lord, Lord Wakeham, and those standing in the name of the Opposition is that the press and broadcasting media should be able to enjoy the benefit of the right to free speech guaranteed by Article 10 but that they should not be under any legal obligation to respect the right to personal privacy guaranteed by Article 8.
Among other things, those amendments fly in the face of the Broadcasting Act 1996 sponsored by Mr. Major's government, Section 107 of which imposed a duty on the Broadcasting Standards Commission to draw up a code giving guidance as to the principles to be observed and the practices to be followed by the broadcasting media in connection with the avoidance of the unwarranted infringement of privacy.
Only today the Broadcasting Standards Commission, wisely and effectively chaired by Lady Howe, published a new code on fairness and privacy for broadcasters. The code sets out important basic principles which provide a useful ethical framework. It requires that any infringement of privacy must be justified by an overriding public interest in disclosure of the information. That includes revealing and detecting crime or disreputable behaviour; protecting public health or safety; exposing misleading claims or disclosing significant rather than insignificant incompetence in public office. The code also stresses that the means of obtaining the information must be proportionate to the matter under investigation.
The code seeks to balance two competing public interests—the citizen's basic right to freedom of information and expression and the responsibility of journalists and broadcasters not to infringe the citizen's right to personal privacy without good reason. As Lady Howe points out, there is considerable virtue in the electronic and print media setting standards. She expresses the hope and belief that the Press Complaints Commission will be onside in the same way. Her code—that of the Broadcasting Standards Commission—refers to the vulnerability of children and makes it clear that children do not lose the right of privacy because of the fame or notoriety of their parents or events in their school.
I find it a bit surprising, especially in the light of the public furore surrounding the death of Diana, Princess of Wales, that both the noble Lord, Lord Wakeham, and the official Opposition seek to remove the Broadcasting Standards Commission, the Independent Television Commission, the Radio Authority, the broadcasters and I dare say the Video Recordings Authority and the Press Complaints Commission from the obligation to respect both the right to free expression and the right to personal privacy.
As regards the exclusion of the independent press, that is unnecessary because a newspaper organisation could not properly be regarded as a public authority within the meaning of Clause 6(3)(c). The effect of the Bill on a newspaper is much more subtle and indirect. It is clear from the Strasbourg case law that there are

777
circumstances in which Article 8 of the convention imposes a positive obligation on the state to ensure that personal privacy is respected vis-a-vis private persons as well as public authorities.
Under Clause 6(3) a public authority includes a court. Under Clause 13(1) a person may rely on a convention right without prejudice to any other right or freedom conferred on him under any other law. Clause 13(2) makes it clear that Sections 7 to 9 will not affect the right of any person to make any claim or bring any proceedings which he could make or bring apart from those sections.
I have no doubt that even if these amendments were to be accepted, our courts would develop a common law right to respect for personal privacy in an appropriate case overruling the decision of the Court of Appeal in Kaye v. Robertson. There are already strong dicta to that effect by senior judges in their judicial and extra-judicial capacities. Happily, nothing in the Bill prevents them from developing the common law (see Clause 13(2)), nor does anything in the Bill prevent the courts from having regard to the convention, including Article 8, in proceedings other than those brought under Sections 7 to 9.
I believe that the press has nothing to fear in the development of a common law right of personal privacy whether under this Bill or at common law. I agree with my colleague David Pannick QC, who wrote a very useful article in The Times last week, that where the Press Complaints Commission, with suitably enhanced powers, exercises those powers fairly and reasonably in accordance with Articles 8 and 10, the courts will not intervene but will respect the broad discretionary powers of the PCC. The problem is that the PCC does not have the power to grant effective remedies for infringements of personal privacy, including a power to order the payment of compensation. If the press wishes to avoid unnecessary litigation, this Bill would be a spur to reform because it would be well advised to empower the PCC, under the chairmanship of the noble Lord, Lord Wakeham, to grant that crucial remedy.
As regards the threat of interlocutory injunctions to restrain publications of infringements of personal privacy, our courts will surely take account of the Strasbourg case law emphasising that prior restraints on publication are a draconian interference with free speech requiring a compelling justification based on strict necessity. Where there is a reasonable prospect of there being a genuine public interest defence, no sensible judge would grant an interlocutory injunction preventing publication and thereby creating a breach by the courts of Article 10 of the convention.
I should add for good measure that I have read exaggerated suggestions in, I believe, the Mail on Sunday, indicating that in France and Germany privacy protection hampers the role of the free press in investigating and uncovering information about government and other malpractices. I have checked both with the president of the German Constitutional Court, Professor Doctor Jutta Limbach, and with Roger Errera, a distinguished member of the French Conseil d'Etat and former chairman of the Media Commission
778
established by President Mitterand. In Germany, as under the convention, the right to free speech is usually paramount. In France, defamation law is much more favourable to the press than in this country because as the burden of proof is on the plaintiff, there are wide public interest defences and the awards for damages are small. I should also observe that even in the United States, the country of the First Amendment, there is ample protection of personal privacy under state statutes and American common law.
I have had the privilege of acting on behalf of newspapers and broadcasters in challenging many unnecessary restraints on free speech imposed by the English laws of contempt, copyright, defamation, the protection of confidential information, contracts, and so on. In all those cases I have relied on Article 10 of the convention, whether in Strasbourg, or in this country, or in Hong Kong. I doubt whether any other English advocate has made as much practical use of Article 10 in promoting the effective protection of the right to free speech. However, that right is not absolute. The unfairness of these amendments is that they would give the press rights against public authorities while seeking to create immunities where the press acts in breach of its responsibilities to the individual citizen. I devoutly hope that they will be withdrawn.
Lord Henley: Perhaps I may speak briefly to the amendments put down in the name of my noble friend Lord Wakeham. I start by mentioning Amendment No. 39, which stands in my name and that of my noble friend. First, I reassure the noble Lord, Lord Lester of Herne Hill, that I was not going to press it; secondly, it was therefore not necessary for him to address it at quite such length; and, thirdly, if I was going to press it, or even move it, it would be the Government's response I would be listening to and not necessarily the noble Lord's.
My noble friend Lord Wakeham explained in some detail what was behind his amendment. It was a fear that the Government were seeking to introduce a privacy law through the back door by means of the Bill. We have considerable sympathy for the approach he adopted. There might be or there might not be arguments for or against a privacy law. But if there were to be a privacy law, my noble friend was quite right to make it clear that it is something Parliament itself should hammer out and should go through in considerable detail by means of legislation rather than leaving it to the courts to develop as they wish. For that reason we share his fear that one of the effects of the clause would be to bring in a privacy law by the back door.
I do not know my noble friend's intentions about the amendment either at this stage or at a later stage of the Bill. But I have to say that, if he wanted to test the opinion of the House on this or another occasion, we would certainly be offering our support from these Benches.
Lord Campbell of Alloway: Perhaps I may deal briefly with the question of definitions. "Public authority" is not defined in the convention and there is

779
no definition in Article 8. It has been interpreted by the European Court of Human Rights in a series of case law decisions under a system where there is no binding precedent. There are few of those decisions—I say this subject to correction—where the public authority is not an authority set up by the parliament of one of the signatory states which renders services, or sometimes goods, to the public. I am not seeking to substitute a definition. I am only concerned with what is going to happen with this Bill, which is a domestic Bill.
"Public authority" is defined in Clause 6(3)(c) as,
"any person certain of whose functions are functions of a public nature".
The noble Lord, Lord Williams, said—I usually agree with him, whether or not it is convenient to do so—that what is a public authority is a matter for the decision of the court in each particular case. I think he is right. That is not in this context a satisfactory or certain way of importing a law of privacy by the back door. For that reason alone I would be disposed to support the amendment of my noble friend Lord Wakeham, but there are other reasons too which my noble friend has put forward which I hope will attract the support of the Committee.
Baroness Williams of Crosby: Perhaps I may make a brief intervention in the debate which has been, on most parts of the Bill, obviously and quite properly dominated by voices from the legal profession. I speak as someone who in a turgid part of my youth was a tabloid journalist. I also speak as someone who has had some part in various aspects of the media. It may be helpful to have just one voice from that quarter. I do not wish in any way to detract from the tremendous contribution that the noble Lord, Lord Wakeham, has made to upgrading the standards of the media in saying that I think there is a genuine problem here. The problem is one that can only be met by a balance between Articles 8 and 10—the two sets of principles: those protecting privacy and those protecting the freedom of the media. Both sets of principles are crucial in a democratic society.
It is at least arguable that the balance may have gone a little far from Article 10 to Article 8. In other words, we are not now sufficiently recognising the real public reaction to intrusions on privacy. The noble and learned Lord the Lord Chancellor, in an article in the Daily Mail a few days ago, pointed out that in a recent poll 91 per cent. of the public indicated that they thought there should be greater protection of privacy. That is very much the public mood. It was, as my noble friend Lord Lester of Herne Hill said, affected very much by what was seen by many as something of a feeding frenzy over the whole of the news concerning the death of the Princess of Wales. One sees spreading strongly throughout decent public opinion a sense that the intrusions have gone too far.
Perhaps I may give one of a common set of examples which anyone who has been in public life knows very well. I refer to the intrusion into the lives of the children and families of people in public life. All of us who have been in public life recognise that we need thick skins
780
and that we ought not to whinge and complain about attacks in the press on ourselves. But it is of a very different order of both pain and unfairness when such intrusions are directed against one's spouse, one's children or one's parents. I speak as someone who, in respect of my parents and my children, has suffered from such intrusions, to the great distress of people not able to defend or protect themselves. Indeed, I speak perhaps more lightly as someone who found a press photographer sitting in a drugs cupboard of the Middlesex Hospital at seven o'clock in the morning at a time when I had broken my leg and he wished to take a photograph of me, presumably in some state of agony. We have to bear in mind that there is a tendency for the press—I refer to the press much more than to television or radio—to take to the outer limits of what is possible the endless pursuit of ratings and circulation.
The noble Lord, Lord Wakeham, has made out a strong case and has made a great contribution to the Press Complaints Commission. However, as my noble friend Lord Lester pointed out, the sanctions against misbehaviour are still very slight indeed. The issue of what sanctions might be taken is very important. In my view, the single greatest danger to the freedom of the press, which I care about as much as any other Member of the House, comes from growing public repudiation of what they regard as adequate standards. It would be a protection for the press to be faced with trying to strike a balance between Articles 8 and 10—the genuine right to privacy as compared with the absolute necessity of having the freedom of expression.
One of the consequences of this matter is to drive out of public life altogether some of the best people that noble Lords and, speaking personally, I myself know. They refuse to run for Parliament, they refuse to be considered as Ministers and they refuse to enter politics because, out of their own decency, they are not prepared to put their friends and relatives at such risk. That is a consideration which anyone who cares about democracy must take into account.
5 p.m.
Lord Callaghan of Cardiff: Iam encouraged by what the noble Baroness, Lady Williams of Crosby, has just said. I also wish to put in a word as a layman. I have listened carefully to the debate and tried to understand some of the legal points, but I do not understand them all. It seems to me that there is another principle here apart from the privacy of the individual on the one hand and the freedom of the press on the other. Both of them are important. As I understand it, an attempt has been made to keep a balance in the drafting of this Bill.
But there is a third principle which has not been mentioned this afternoon, as far as I can make out, and that is the principle of accountability. If there is a criticism of the press which I believe is generally held at the moment, it is that while everybody in a democratic society is accountable, it seems to laymen—I have no objection to the course that the press are pursuing in general because they have done a wonderful job—that there is no accountability except to the noble Lord, Lord Wakeham. I have every admiration for him,

781
but I do not believe when one matches that against the accountability that Parliament has or that which the lower courts have to the higher courts, it begins to measure in the balance.
If I thought that there was a greater degree of accountability in the press, I would be more impressed with the argument. Until that accountability is held in balance—as I understand it, the impression is that the Bill has been drafted in such a way that it is held in balance and that there is a proper balance between the right to privacy and the freedom of the press—I do not feel convinced and I would not be able to support the noble Lord.
Lord Wilberforce: The noble Lord, Lord Wakeham, has rendered a very valuable service in drawing attention to the difficulties which exist in the convention at the present time. He speaks with his great expertise and experience as regards the press. So far the debate has tended to concentrate on that aspect of the matter. I do not believe that we ought to allow the debate and discussion on the Bill to be completely hijacked by questions which are no doubt of great interest, but which relate to the press, the newspapers and the media. There are other aspects in the convention of great importance to which we have to have regard. I am personally more concerned with them and I propose to address my remarks to them.
My concern relates to the relation and difference between public authorities on the one hand and private persons on the other. There is nothing between the Government and myself, or between them and the noble Lord, Lord Wakeham, on that matter. It has been made perfectly clear by the noble and learned Lord in his speech at Second Reading and also by the noble Lord, Lord Williams of Mostyn, in his winding up speech on that occasion, that the Bill is aimed entirely at public authorities and not at private individuals. It is not meant to introduce a tort of privacy. As regards matters relating to the press, they are to be left to self-regulation and others to the common law.
There are certain difficulties in that regard which exist in the Bill. As the noble Lord has said, his amendment covers the same ground as that which I have attempted to cover in Amendment No. 60. Indeed, if I had come earlier this morning I would have agreed to my amendment being grouped with Amendment No. 32. They cover the same ground and deal with the same problem, but in a slightly different technical way.
The problem is simply this. It is perfectly true that Clauses 6, 7 and 8 of the Bill deal only with public authorities and not with private persons: indeed, nothing in the Bill deals with private persons. The problem arises when one turns to the courts. It is said in Clause 6 that a court is to be treated as a public authority. The noble Lord deals with the problem I am now discussing by taking courts out of that definition in cases where only private litigants are involved.
There is a problem. A case is brought in court between an aggrieved person and a person who is not a public authority. At the moment I am not discussing whether any particular person is or is not a public
782
authority. That is a problem to one side which we shall come to later. We assume that he or she is not a public authority. A remedy is asked for or an injunction of some kind against the private person. It may be a journalist or a paparazzo (if that is the right singular) or against any other wrongdoer. If the claim is based on the convention the court ought to say that there is nothing wrong under it because the convention only makes it unlawful to act in that particular way if one is a public authority. The case should be thrown out.
But there may be cases where an attempt is made to carry the dispute further and to say, "You, the court, have acted incompatibly with the convention"—those are the vague words that are used—if one either has or has not granted a particular remedy. I am very anxious to ensure that there is such a case that courts are not exposed to further proceedings against them for acting unlawfully and incompatibly with the convention.
Of course, we know that damages cannot be given against the court. Clause 9 states that one has to go by way of appeal or judicial review. The wording of the noble Lord's Amendment No. 32 does nothing more than to say that in such a case the court is not to be treated as a public authority and that remedies are not to be granted against it as if it were a public authority. There is nothing in that which is contrary to the spirit of the Bill or which prevents the common law and the courts from developing a law of privacy. I am not afraid of that at all and in that I differ rather from the noble Lord, Lord Wakeham. There is nothing to prevent the issue of privacy being developed at common law or the courts acting in a perfectly normal way, with appeals and so forth, so long as they are justified.
In so far as proceedings are based on this Bill, I am only concerned that, under the convention, in cases where private persons are concerned, there should not be a whole chain of judicial reviews, appeals and so forth on the ground that the court has acted incompatibly with the convention. I am perfectly happy to support the noble Lord's amendment. I repeat that it does not deal specifically with the press, but with a general problem of public versus private. My amendment comes to the same thing. I take no position whatsoever on the enlarged or more specialised dispute so far as it relates to the press.
Lord Lester of Herne Hill: Before the noble and learned Lord sits down, I shall be very grateful if he can answer one question arising from his very important speech. Clause 13(2) specifically reserves the right to rely on the convention in cases where a person is not seeking a right against a public authority. The noble and learned Lord, Lord Wilberforce, will remember a case in which he gave the leading speech. I believe it was called Baron Cawley's case and it was some years ago. He referred to the convention as a source of public policy in deciding whether a restrictive covenant based on religious exclusion in a will between private persons was or was not against public policy.
From what the noble and learned Lord, Lord Wilberforce, said, I am not clear whether he is seeking to prevent the convention from being relied on in ordinary private law proceedings, say, involving the

783
contours of the law of libel or whether a restrictive covenant in a will is against public policy. I am therefore quarrelling with Clause 13(2).
Lord Wilberforce: I am much obliged to the noble Lord, Lord Lester, who as usual has raised a very relevant point. Clause 13 has already been discussed and does nothing more than say that you may rely on a convention right without prejudice to any other right. I am perfectly happy to leave intact—I thought that I had made it clear that I wished to leave intact—any right of anybody to go under the common law. If they are going under the common law, they are faced with the perfectly normal position that there is in existence an international convention to which one must have regard and if any statute is involved, it has to be interpreted. I would certainly not wish to exclude the courts from relying on interpreting any law which exists consistent with the convention, as is stated in Clause 2. I do not see any difficulty relating between actions under the convention and actions not under the convention. I want only to ensure, in so far as an action is brought under the convention relying on Clauses 6, 7 and 8, that a court is not to be treated as liable to proceedings under the convention by a private individual.
5.15 p.m.
The Lord Chancellor: I hope that I can persuade the noble Lord, Lord Wakeham, and the Committee that it is neither necessary nor right to go down the road proposed in these amendments.
We believe that it is right as a matter of principle that organisations which are, on a reasonable view and as decided by the courts, exercising a public function should be so treated under the Bill and should have the duty, alongside other organisations having public functions, to act compatibly with the convention rights in respect of those functions. That means (among other things) that, in doing what they do, they should pay due regard to Article 8 (on privacy) as well as to Article 10 (on freedom of expression, which includes also the freedom of the press).
We also believe that it is right as a matter of principle for the courts to have the duty of acting compatibly with the convention not only in cases involving other public authorities but also in developing the common law in deciding cases between individuals. Why should they not? In preparing this Bill, we have taken the view that it is the other course, that of excluding convention considerations altogether from cases between individuals, which would have to be justified. We do not think that that would be justifiable; nor, indeed, do we think it would be practicable. As the noble and learned Lord, Lord Wilberforce, recognised, the courts already bring convention considerations to bear and I have no doubt that they will continue to do so in developing the common law and that they have the support of the noble and learned Lord in making that use of the convention. Clause 3 requires the courts to interpret legislation compatibly with the convention rights and to the fullest extent possible in all cases coming before them.
784
The noble Lord, Lord Wakeham, properly referred to my letter to him of this morning. I think it preferable, and for the assistance of the Committee since it has already been referred to, that I should read it out in full. The first paragraph refers to the relevant paragraph from counsel's opinion, with which the noble Lord, Lord Wakeham, supplied me, and after referring to that, my letter states:
"I have been giving further thought to whether the Press Complaints Commission (PCC) is a 'public authority' under the Human Rights Bill.
The authorities which [counsel] cites are not, as I said, precisely in point because they are judicial review cases. But I do agree that they show a disposition on the part of the Courts to regard the PCC as a 'public authority'. On reconsideration, therefore, of the relevant provision of the Bill: is the PCC a 'person certain of whose functions are functions of a public nature'? (Clause 6 (3)(c)). I now tend to think that … the press might well be held to be a 'function of a public nature', so that the PCC would be a 'public authority' under the Human Rights Act.
I do, however, think that, for the reasons I gave when we met, this possibility is an opportunity, not a burden, for the PCC. The opportunity is that the courts would look to the PCC as the pre-eminently appropriate public authority to deliver effective self-regulation, fairly balancing Articles 8 and 10. The Courts. therefore, would only themselves intervene if self-regulation did not adequately secure compliance with the Convention.
I repeat that when the press has solid grounds, in the public interest, for publication, even where an individual's privacy is invaded, it will not go down to interim injunctions: in just the same way as it does not go down to injunctions, in libel cases, when it says that it will justify.
I look forward to the debate in Committee on Monday".
I want to tackle the concerns of the press directly. They are essentially twofold. First, will the courts develop a law of privacy, and, secondly, is the PCC itself to be regarded as a public authority which should act consistently with the convention? First, as I have often said, the judges are pen-poised, regardless of incorporation of the convention, to develop a right to privacy to be protected by the common law. This is not me saying so; they have said so. It must be emphasised that the judges are free to develop the common law in their own independent judicial sphere. What I say positively is that it will be a better law if the judges develop it after incorporation because they will have regard to Articles 8 and 10, giving Article 10 its due high value, which the strenuous efforts of the noble Lord, Lord Lester of Herne Hill, in the courts of this country and of elsewhere have contributed to ensuring that it enjoys.
I believe it to be well recognised, including by the press, that Parliament, if invited to do so, might well pass a tougher statute outlawing invasion of privacy than the judges are likely to develop having regard to Articles 8 and 10, balancing them and giving each its due value and giving Article 10 its due high value. I would respectfully suggest that the noble Lord, Lord Wakeham, had his tongue somewhere in his cheek when he said that he would have preferred the Government to introduce a privacy statute, although, of course, he would have opposed it in principle. This Bill does not impose any statutory controls on the press by a back-door privacy law. I remind the noble Lord,

785
Lord Henley, that the previous government promised a White Paper on privacy, a promise which they did not deliver.
I would not agree with any proposition that the courts as public authorities will be obliged to fashion a law on privacy because of the terms of the Bill. That is simply not so. If it were so, whenever a law cannot be found either in the statute book or as a rule of common law to protect a convention right, the courts would in effect be obliged to legislate by way of judicial decision and to make one. That is not the true position. If it were—in my view, it is not—the courts would also have in effect to legislate where Parliament had acted, but incompatibly with the convention. Let us suppose that an Act of Parliament provides for detention on suspicion of drug trafficking but that the legislation goes too far and conflicts with Article 5. The court would so hold and would make a declaration of incompatibility. The scheme of the Bill is that Parliament may act to remedy a failure where the judges cannot.
In my opinion, the court is not obliged to remedy the failure by legislating via the common law either where a convention right is infringed by incompatible legislation or where, because of the absence of legislation—say, privacy legislation—a convention right is left unprotected. In my view, the courts may not act as legislators and grant new remedies for infringement of convention rights unless the common law itself enables them to develop new rights or remedies. I believe that the true view is that the courts will be able to adapt and develop the common law by relying on existing domestic principles in the laws of trespass, nuisance, copyright, confidence and the like, to fashion a common law right to privacy. That was more or less what the noble and learned Lord, Lord Hoffmann, said in an important public lecture. They may have regard to the convention in developing the common law, as they do today and as the noble and learned Lord, Lord Wilberforce, says it is right that they should.
The experience of continental countries shows that their cautious development of privacy law has been based on domestic law, case by case, although they have also had regard to the convention. I repeat my view that any privacy law developed by the judges will be a better law after incorporation of the convention because the judges will have to balance and have regard to Articles 10 and 8, giving Article 10 its due high value. What I have said is in accord with European jurisprudence. In Winer v. United Kingdom in 1986 the European Commission on Human Rights concluded that because of Article 10 it did not consider that the absence of an actionable right to privacy under English law was a lack of respect for the applicant's private life.
I believe that effective self-regulation is the way forward. The noble Lord, Lord Wakeham, was good enough to acknowledge that as a member for some years of the Appointments Commission to the Press Complaints Commission I had assisted in self-regulation and its governance. The PCC should embrace and welcome the possibility that it may come to be regarded as a public authority under the Bill and expected to deliver convention rights. A beefed-up PCC, as the noble Lord, Lord Lester of Herne Hill, suggests, perhaps with the
786
power to award compensation in appropriate cases—a power that the PCC lacks today—could become the general arbitrator in practice in these cases provided it did its job strongly and well.
The courts may well develop a law of privacy, not because the Government require them to do so but because they will be exercising their freedom to do so in their own independent sphere. But if there were effective self-regulation a law of privacy developed by the judges would hardly ever have to be invoked against the press.
It is wrong for noble Lords to allow this debate to focus exclusively upon a privacy law that applies only to the media. I emphasise to the noble Lord, Lord Wakeham, that the right to privacy is a basic human right. That right can be infringed by a neighbour, an intrusive commercial agency, private investigators, the police and all manner of other people. The little man needs protection against these bodies. It is primarily these malpractices without a shred of public interest to justify them that will be in the sights of the courts if they move to develop a right to privacy as part of the common law. A well regulated press which is essential to a free society has nothing to fear and everything to gain.
I tend to believe that the important function of the PCC to adjudicate on complaints from the public about the press may well be held to be a function of a public nature, so that, as I said in my letter, the PCC might well be held to be a public authority under the Human Rights Bill. But I believe that this is an opportunity, not a burden on the PCC. The opportunity is that the courts would look to the PCC as the pre-eminently appropriate public authority to deliver effective self-regulation fairly balancing Articles 8 and 10. The courts therefore would have to intervene only if self-regulation did not adequately secure compliance with the convention. The message for the press is plain: strengthen self-regulation and strengthen the PCC under its eminent chairmanship.
I do not believe that the courts will grant temporary injunctions where there are solid grounds for the press to maintain that they have public interest grounds to publish something, just as the courts do not restrain libels where the press intends to justify them. I say to the press that its salvation as it sees it can be in its own hands.
The noble Lord has rendered an important service to the House in tabling the amendment. It raises important issues which deserve time to be devoted to them, as has happened, for them to be fully ventilated and discussed. I have given as full a response as I am able to the amendment tabled by the noble Lord. I am sure that he and the interests he represents will consider carefully what I have said, just as I will consider carefully what he and other noble Lords have said. I do not close the door to any proposal. The noble Lord, together with some of his colleagues, has had one meeting with me already. He knows that my door is open for further discussion. But I believe—I agree with every word that the noble Lord, Lord Lester of Herne Hill, has said on this subject—that the door is really open to the PCC, which the noble Lord chairs, to strengthen self-regulation so that the courts will be satisfied in all cases concerning the press that effective remedies are

787
provided by the PCC and they amount to compliance by the United Kingdom with its obligations under the convention without any need for intervention.
For those reasons, I invite the noble Lord, Lord Wakeham, to seek leave to withdraw his amendment.
Lord Wakeham:I am grateful to the noble and learned Lord the Lord Chancellor for his substantial reply. It must be studied carefully, and that I shall certainly do. In a debate of this kind one tends to clutch at contributions from non-lawyers. I very much agreed with the remarks of the noble Lord, Lord Callaghan, although he did not intend to speak in support of my amendment. I am not here to speak for the press. I am independent of the press. I am concerned to secure an effective remedy for all the people who complain to me, 95 per cent. of whom are ordinary citizens of this country, not celebrities or famous people with large resources. I am concerned about the invasion of their privacy. Further, I am concerned that the remedies which may be inadequate at the moment under self-regulation will disappear and will be replaced by legal remedies which these people will be in no position to invoke because of the thousands of pounds it will cost to take newspapers to court.
However, the noble and learned Lord has made a number of substantial points and I should like to study them carefully. I very much appreciate his kind offer not necessarily to visit him again but to leave open the door. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 33 not moved.]
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 34:
Page 4, leave out line 7 and insert ("or tribunal").
The noble Lord said: Amendment No. 34 is a technical amendment which removes the reference in Clause 6(3)(b) to a tribunal:
"which exercises functions in relation to legal proceedings".
This qualification is, on reflection, unnecessary because Clause 21(1) defines the meaning of "tribunal" for the Bill generally as:
"any tribunal in which legal proceedings may be brought".
The effect is that Clause 6(3) as amended will refer simply to "a court or tribunal" as included within the meaning of "public authority", and "tribunal" will attract the definition in Clause 21(1). I beg to move.
On Question, amendment agreed to.
5.30 p.m.
[Amendment No. 35 not moved.]
Lord Henley Lord Henley moved Amendment No. 36:
Page 4, leave out lines 9 and 10 and insert—("(c) a local authority,

(d) the police,

(e) immigration officers, and

(f) prisons,").

The noble Lord said: This amendment is grouped with Amendments Nos. 38, 40 and 44. I do not wish to speak to Amendments Nos. 40 and 44 in the name of the noble and learned Lord, Lord Simon of Glaisdale, but I shall say a few words about Amendment No. 40 in the name of my noble friend Lady Young.
Before we broke for the Statement to be repeated earlier this afternoon by the noble Lord the Lord Privy Seal I asked for a brief explanation of the definition of a public authority. We can return to that matter with this group of amendments. For my part, these are very much probing amendments because I seek reassurances and explanations, in particular explanations of the Pepper v. Hart sort, from the noble and learned Lord the Lord Chancellor when he comes to respond.
The noble and learned Lord will see that Amendment No. 36 takes words from the White Paper. We have done that in order to elicit further advice and information from the noble and learned Lord as to what he means by "public authority".
I am still somewhat confused. I hope that I am beginning to see what the clause provides but I do not understand how that will be interpreted. As the noble and learned Lord explained, government departments are included in the definition. That is straightforward and I understand that. He then gave the example of Railtrack, a private body exercising public functions. We now hear that as a body the Press Complaints Commission could be included. As the noble and learned Lord will see from Amendment No. 40 in the name of my noble friend Lady Young, there are concerns as to whether religious organisations, denominations or Churches could be included. Again, we seek further advice from the noble and learned Lord in that regard. I do not know whether the noble and learned Lord has seen correspondence from the Christian Institute, because that organisation certainly has some concerns that it may be included as a public authority when exercising certain functions.
The purpose behind the amendments is to probe a little further as to what is meant by a public authority and where the line is to be drawn. I hope that the noble and learned Lord will be able to explain that in as simple language as possible so that lawyers and non-lawyers in the Chamber can understand and get a clear grip of the Government's intention behind the words that we see in Clause 6. I beg to move.
The Deputy Chairman of Committees (Lord Murton of Lindisfarne): In proposing this amendment, I should point out that if it were to be agreed to, I should be unable to call Amendment No. 37 because of pre-emption.
Lord Simon of Glaisdale: Amendment No. 38, which is in my name, has been grouped with Amendment No. 36. I agree respectfully that in the context of this Bill there must be a definition of a public authority. It has been extremely widely construed in different contexts by the courts in various cases.

789
Before I speak to my amendment, perhaps I may say that earlier I rather rudely associated my noble and learned friend the Lord Chancellor with Mephistopheles. Having heard his recent masterly speech on the last amendment, I feel rather ashamed of that.
The noble Lord, Lord Henley, said that in framing his amendment he has used the words of the White Paper. I claim to have done even better because I have taken the definition of a public authority from two Bills, both of which were Bills of a Labour Government. They were race relations Acts and were therefore in the very sphere of human rights, with which this Committee is concerned.
My general aim in supporting this Bill has been to try to strengthen it to make sure that we really are bringing home convention rights. The definition which I proffer, which, as I say, is taken from race relations Acts, states,
"any person concerned with the provision to the public or a section of the public (whether for payment or otherwise) of any goods. facilities or services".
There is another advantage in that formula; namely, that it has been subject to considerable explanation and interpretation in the courts. I hope that it will be acceptable to my noble and learned friend and that he will not revert to his mephistophelean role.
Baroness Young: It may be for the convenience of the Committee if I speak to Amendment No. 40. I have two reasons for tabling the amendment. The first is to follow from what my noble friend Lord Henley said and to probe further in relation to the definition of a public authority.
Unlike almost every Member of the Committee taking part in the debate, I am a lay person and I think it important that one should try to understand what the Bill means. To that end, I looked carefully again at the White Paper which of course, in the second part of it, goes into considerable detail about the definition of a public authority, although it states:
"The definition of what constitutes a public authority is in wide terms".
I notice that the point about the definition of a public authority was raised by a number of noble Lords on Second Reading. I much regret that I could not be here on that occasion. However, the noble Lord, Lord Borrie, who is in his place, raised that issue, as did the noble and learned Lords, Lord Donaldson of Lymington and Lord Wilberforce. Therefore, there is concern about the definition.
I listened carefully to what the noble Lord, Lord Williams of Mostyn, said in replying to one of the earlier debates this afternoon. If I understood him correctly, he said that one definition could be recognised quite easily and put in laymen's terms—although I may not he right, I would say that it is an authority set up by statute which one can understand as a public authority. I find it more difficult to understand that a privatised industry is a public authority. It rather reminds me of the kind of essay that I was once asked to write as an undergraduate in philosophy. But I have no doubt that there is an explanation for that. But on the face of it it is quite a difficult argument to accept.
790
I do not quite understand the definition given either in the Bill or in the White Paper. But there are many people who think, for example, that the Church of England is a public authority; that in certain cases, charities are public authorities. If that is the case—and it would be helpful to know whether it is—it could lead to decisions of the Church being challenged in the courts under the convention. That might involve a judicial review. Instances which have been put to me include who can and who cannot marry in church, who can or cannot be a godparent. It has even been suggested to me that a PCC which decided that it did not want to have a woman priest would be falling foul of all that, and could not decide that that was what it wanted.
In regard to a charity, let us take, for instance, a hospice dealing with terminally ill adults or children. Let us suppose it is partly government funded. Does that make it a public authority, and should it be obliged to accept, for instance, information about voluntary euthanasia? Those are not entirely imaginary issues. They are the kind of issues that could confront ordinary people trying to go about their business as they have to from day to day.
Let us look again at a Church school. Religious denominations, and Churches generally, have a freedom today to employ certain staff who adhere to a particular faith. Under this arrangement could employment rights be developed so that there could be conflicts with regard to employing a practising homosexual who might be able to claim that he was being discriminated against if he were sacked from the staff of a Church school or not employed in the first place?
The whole issue raises areas where there could be a conflict of rights: the right of the freedom of the individual; the rights of the organisation (its religious convictions). I am not clear which right takes precedence. Whether it is the noble Lord, Lord Williams, or the noble and learned Lord the Lord Chancellor who is to reply to the debate, I should be glad to hear whether the Church of England is a public authority or, indeed, whether any religious organisation is a public authority; whether a hospice or a charity is a public authority; or whether a school with a religious foundation or a trustee is a public authority. Those are the organisations which I have put down in my amendment.
In the charity world an enormous number of organisations are partly publicly and partly privately funded. Are they thought to be public authorities? What about those which are entirely privately funded? Is the argument that if it is a private organisation which at times exercises a public function, it is a public authority, and who knows?
If I understood the argument correctly, we need not worry about any of that, because there is a second definition. If I understood him correctly, the noble Lord, Lord Williams of Mostyn, said in relation to a public authority that there are those who understand what a public authority is. He said there are those who have part of their functions as a public authority. Perhaps he will explain the matter further, but how does one know whether part of one's functions is public unless that is defined somewhere? If a matter is subject to litigation it

791
is to be interpreted by the judges. I hope that he will forgive me if I have misunderstood him, but I think that he said that this was all against a background of changing social conditions.
That is worrying, because the convention is drawn in general terms. People now think differently from how they thought 50 years ago. For all I know, in 30 years' time they will think differently again. The matter is open to all sorts of interpretations. I do not understand how many organisations will enjoy the kind of freedom to act as they do now under the Bill. I should be most grateful for an explanation.
Baroness Williams of Crosby: Before the noble Baroness sits down, perhaps in this brief moment between lawyers I may press her on something she said about which I am a little confused. Is not the EOC already able to intervene in an organisation that, for example, refuses employment to someone on grounds of race, sexual orientation, or whatever it may be? I am not clear what new matters the European convention would bring to this beyond what the EOC, the CRE and other such bodies can already do.
My other question relates to Churches. Could she say what happens, for example, in the case of a voluntary aided school? In a sense it is clearly a public authority. It is part of the public system of education, but it may stem from a religious foundation. What would be the consequence therefore in dividing the responsibility of schools were the amendment to be accepted?
5.45 p.m.
Baroness Young: Voluntary aided schools form one of the groups about which I was speaking. As I understand it, those schools have considerable freedom to select on religious grounds. A Catholic school would want a Catholic head. I am not clear whether that right would remain under all of this. That is one of the points that must be cleared up. I am not a lawyer. I cannot pretend to interpret what is happening. I am merely asking the questions. These are serious questions. A governor is someone like myself trying to cope with something which is complicated.
Of course I recognise equal opportunities and other similar legislation, but the points about which I was thinking related to the Church. Let us take marriage, for instance. Is the Church allowed to say that it will not, as it were, "marry" a homosexual couple? That is the kind of thing that the Church should be able to decide. Will that be allowed? Can the Church be overruled because it is a public authority? There are many cases—I have mentioned just a few—where there could be difficulties, and a conflict of rights might arise: the rights of the homosexual as opposed to the rights of the Church. I do not know which would have dominance. This is a real point. I am seeking clarity on this matter, particularly with regard to what constitutes a public authority.
Lord Campbell of Alloway: It is a totally fair point. I do not know. I do not suppose many lawyers know. It all stems from "family". When the convention was
792
drafted, the concept of the "family" was different from what it is today. The concept of the "family" is different as between different states. It is a different concept among members of the same state. If one now has this homosexual business—I do not understand it and I do not think many people do—and one has, say, a pair of lesbians who are living together in perfect amity and have done so for a long time, I do not suppose that they are a family, but I do not know. If they have some sort of insemination and have a child, does that make them a family? If they adopt a child, does that make them a family? I am not asking these questions to be tiresome, but just to support my noble friend, because I do not really have a clue as to what the answer to all this is.
Lord Lester of Herne Hill: We are now dealing with an important set of amendments. I should like to speak to Amendments Nos. 36, 38 and 40 and make one or two introductory remarks before I turn to each of them. The drafters of the Bill have wisely included a broad, inclusive definition of what constitutes a public authority. They have done so because it is only possible on a case-by-case basis, looking at the particular body, the nature of the functions and the circumstances in which they are discharged, for the courts to come to a conclusion as to whether the activity falls on the side of a public function.
It is not a new problem. Indeed, the courts have been seeking to distinguish between those bodies that are subject to the supervisory jurisdiction of the courts in judicial review and those which are not for a number of years. By now, they have developed clear and coherent criteria of a general kind to decide which side of the line a particular body comes within. Therefore, I entirely agree with the need for a broad and inclusive definition rather than some kind of exhaustive list.
One noble Lord referred to the problem of privatised industries. It is clear from the case law of the European Court of Human Rights that, where a body that is private in form is performing a function that would otherwise be performed by a public authority, there would be international liability if that body does not comply properly with the convention. Perhaps we can imagine, for example, the privatisation of the Prison Service. It would be unthinkable if a body which was private in form but public in function could escape liability under the convention.
Lord Henley: As a matter of interest, can the noble Lord say whether that would mean that in a former Communist state, where everything was in the public sector, everything would therefore be a former public sector body, whether or not we would consider it to be totally private?
Lord Lester of Herne Hill: Even in a Communist state there are individual human beings who do things to each other without doing so in public clothing. Therefore, even in a Marxist totalitarian state it would not be the case that everything that was done by individuals would fall within the scope of the convention or the international covenant.

793
I was seeking to explain that my understanding is that in drawing the line between what is and what is not a public authority, the courts have developed clear principles in the context of judicial review in England, Scotland and Northern Ireland. In doing so, they have held, for example, that the functions of the Chief Rabbi acting in interpreting Rabbinical law fall plainly outside the scope of judicial review. Similarly—and we discussed this on the first day of Committee on 18th November in connection with another amendment—it is quite clear that the decisions of the Synod, or those of the bishops of the Catholic Church, or, indeed, those of any other church organisation or body, would not normally fall within the scope of a public authority.
The problem about homosexual couples, as raised by the noble Lord, Lord Campbell of Alloway—
Lord Campbell of Alloway: That is just the problem. I wonder whether the noble Lord can help us in that respect. How do we define the problem that he has just demonstrated? It is a difficult one.
Lord Lester of Herne Hill: The question to be asked is whether the functions performed by the person concerned are or are not functions of a public nature. That is exactly the same kind of question as arises all the time under Order 53 of the Rules of the Supreme Court and its counterpart under the Scots rules for judicial review. One has the broad question raised which has to be answered by the courts on a case-by-case basis.
The noble Lord, Lord Campbell of Alloway, raised the problem as to whether a ban on marrying homosexual couples would incur liability on a Church body which failed to do so. My answer would be that the Church body would not itself be liable. If the UK were to prevent marriages or the recognition of permanent unions of homosexual couples, that might or might not give rise to liability under Article 8 of the convention on the international plane. But in my opinion the Church itself would not be liable as a public authority.
I turn now to the specific amendments. Amendment No. 36 would create a yawning chasm between what is required by the convention and what would be done by the Bill. Under the amendment the only public authorities obliged to comply with convention rights would be local authorities, the police, immigration officers and the Prison Service. There can be no justification for excluding central government, a Scottish parliament, a Welsh senate, regional authorities and the wide range of government, quasi-government and other bodies performing public functions.
I turn now to Amendment No. 38 tabled in the name of the noble and learned Lord, Lord Simon of Glaisdale. This amendment seeks to borrow the language of Section 29 of the Sex Discrimination Act 1975 in defining public authorities and public functions. The snag in that respect is that such statutory language was interpreted by a majority decision of the House of Lords in Re Atnin [1983] 2AC 818 as confined to so-called "marketplace" activities. It would, therefore, have the reverse effect of what is intended by the noble and
794
learned Lord. As interpreted—in my respectful opinion wrongly but, nevertheless, it represents the law of the land—by a majority of the Law Lords (the noble and learned Lord, Lord Scarman, and, I believe, Lord Salmon dissenting), that language would have the very opposite effect in that it would have the result of using language which is only concerned with the marketplace, as being so held by the Law Lords, to define what is a public authority.
Amendment No. 40 seeks to immunise from the duty to comply with convention rights religious organisations, hospices, voluntary-aided religious schools and religious charities. To the extent that any of those bodies were to exercise their powers in breach of convention rights, and to do so in a way that was characterised as a public function, it is hard to see why they should be immune from liability. Having said that, I find it difficult to conceive of circumstances in which any of those bodies would be directly liable as a public authority, with the possible exception of those in charge of voluntary-aided schools, if, for example—and this would be inconceivable—they were to exclude people of a particular colour or race and interfere with Article 2 of the first protocol to the convention, read with Article 14, in a context where there was no domestic remedy, which in fact there is.
However, I should have thought that even in respect of those bodies such matters can be safely left to the courts to consider in the light of Strasbourg case law and the facts of the case. I do not know of any decision that has been made by the courts in this country about what is a public authority which has created any difficult problem. Therefore, to sum up, I consider that the broad inclusive definition marches properly with the courts' functions. For the reasons that I have given, I believe that any attempt to be exhaustive and to be entirely prescriptive would be a mistake.
The Lord Bishop of Exeter: I shall speak to Amendment No. 40 in support of the remarks made by the noble Baroness, Lady Young, especially as regards her plea for clarity and definition. I very much regret that our timetable in this Chamber has given the Church of England very little time to scrutinise the legislation. However, some anxiety was expressed in that other place—the General Synod—this afternoon on the matter. We shall try to continue to do so.
I should like, in particular, to raise the point about the fast-track procedure. If a Minister believes that there is a conflict between the decisions of the General Synod, which are in legislative form—the law of the land—and the convention, he or she can amend the measures of the General Synod by order. The measures of the Synod are passed by Parliament. But in this case a Minister will be able to amend Synodical legislation by order without consulting the Synod. I believe that we shall find this unacceptable and shall want to continue to scrutinise the legislation in its further stages.
I assure the Committee of the determination, certainly of the established Church, to improve its procedures on accountability. I am myself a member of a working party that is seeking to revise the ecclesiastical jurisdiction measure of 1963 which has been found in

795
practice to be an unwieldy measure. We are trying to improve the whole process of accountability and discipline of the clergy. But having said that, I make the practical point that there is a necessity surely to avoid legislation that becomes unworkable because of lack of finance. This is where Churches differ from other public bodies, many of which can draw upon taxes to create the necessary machinery for dealing with the kind of procedures envisaged in the convention. However, the finances of Churches are almost entirely voluntary. The people in the pew would finance the very procedures by which they could make complaints. That may not work well in practice. I support the plea of the noble Baroness, Lady Young, for greater clarity and definition.
6 p.m.
Baroness Carnegy of Lour: I have listened to the discussion carefully as a lay person who does not know an enormous amount about the subject. Will the noble and learned Lord the Lord Chancellor in his reply make it plain to the Committee how a body knows, under the Bill, whether it is liable to be caught by Clause 6 or not? That is the critical question: how a body which is not easily understood to be a public authority knows whether the Bill applies to it or not.
The Lord Chancellor: I am rightly reminded by the noble Baroness, Lady Young, that lay people are entitled to understand Acts of Parliament. I entirely agree. I am mindful of the Shavian maxim that professions are a conspiracy against the laity. Therefore I shall endeavour not to participate in that conspiracy but to make matters as clear as I can.
I am urged by the noble and learned Lord, Lord Simon of Glaisdale, not to don my mephistophelean hat. The problem is that the noble and learned Lord regards me as Mephistopheles whenever I do not accept an amendment moved by him. As the noble and learned Lord will appreciate, there is a distinction between amendments which challenge the basic scheme and the structure of the Bill—which, if you believe in the basic scheme and the structure of the Bill, you will not accept—and amendments which one must consider with an open mind if, without doing violence to the basic scheme of the Bill, they offer collateral improvements. As regards the Government being willing to consider an amendment that was moved before this group as a possible collateral improvement, that was readily accepted by my noble friend Lord Williams of Mostyn.
The point about the Bill is that it has a coherent intellectual structure. It rests upon giving the strongest jurisdiction possible to the judges to interpret Acts of Parliament so as to make them, whenever possible, compatible with the convention. But then the Bill reflects the decision that when a court is unable to do that and make a declaration of incompatibility the Bill does not embrace the doctrine of implied repeal—which it could have done—and allow the courts to strike down Acts of Parliament; it goes down the route of a declaration of incompatibility which then leaves Parliament free, a sovereign Parliament which must decide whether to pass a remedial order or indeed a full
796
amending Bill. That is part of the central scheme of the Bill, as also is the definition of public authority which I shall endeavour to explain.
Clause 6(1) states,
"It is unlawful for a public authority to act in a way which is incompatible with one or more of the Convention rights".
There are some bodies which are obviously public authorities such as the police, the courts, government departments and prisons. They are obviously public authorities under Clause 6(1). However, under Clause 6(3)(c) the term "public authority" includes,
"any person certain of whose functions are functions of a public nature".
I ask the noble Baroness, Lady Young, to abstain from asking herself the question: is this a public authority just looking at the body in the round? That is what Clause 6(1) invites us to do. However, Clause 6(3)(c) asks whether the body in question has certain functions—not all—which are functions of a public nature. If it has any functions of a public nature, it qualifies as a public authority. However, it is certain acts by public authorities which this Bill makes unlawful. In Clause 6(5) the Bill provides:
"In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(c) if the nature of the act is private".
Therefore Railtrack, as a public utility, obviously qualifies as a public authority because some of its functions, for example its functions in relation to safety on the railway, qualify it as a public authority. However, acts carried out in its capacity as a private property developer would no doubt be held by the courts to be of a private nature and therefore not caught by the Bill.
The noble Lord, Lord Lester, is right: we took a policy decision to avoid a list. I am appreciative that he supports our not having gone down the route of an exhaustive list. The disadvantage of a list is precisely the one identified by the noble Lord; namely, that it would be easy to regard it as exhaustive or to suggest that any non-listed body could be a public authority only if it was sufficiently analogous in its essential characteristics to a body that had qualified in the list. There are obvious public authorities—I have mentioned some—which are covered in relation to the whole of their functions by Clause 6(1). Then there are some bodies some of whose functions are public and some private. If there are some public functions the body qualifies as a public authority but not in respect of acts which are of a private nature. Those statutory principles will have to be applied case by case by the courts when issues arise. We think that it is far better to have a principle rather than a list which would be regarded as exhaustive.
On Amendment No. 40, 1 see no objection to the proposition that if any of the bodies listed exercise public functions they are caught by the convention save in relation to acts by them which are of a private nature. For example, I should have thought that the Church would have welcomed being bound by Article 8 which provides that,
"Everyone has the right to respect for his private and family life, his home and his correspondence".

797
I urge the noble Baroness, Lady Young, to read the convention. Article 9 provides that,
"Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance".
Paragraph 2 provides that,
"Freedom to manifest one's religion or beliefs shall he subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others".
The first and true effect of the amendments moved by the noble Lord, Lord Henley, in the place of the noble Lord, Lord Kingsland, would be to remove paragraph (c) of subsection (3) of Clause 6. The result would be that it would fall to the courts to decide what was or was not a public authority for the purpose of the Bill in accordance with subsection (1) of the clause. However, for good measure the noble Lord threw in examples of bodies that he would be content to see treated as public authorities. As he acknowledged, he has drawn those examples on a selective basis from those mentioned in the White Paper. Next, however, the noble Lord offered the Committee some examples of organisations which he thinks should definitely be excluded from being regarded as public authorities. In fact once subsection (3) of the clause is deleted or replaced, the probability of the courts regarding organisations of this kind as public authorities becomes remote.
While the amendments in the name of Opposition spokesmen would restrict the application of the Bill, the amendments in the name of the noble and learned Lord, Lord Simon of Glaisdale, would extend it. He would include any person supplying goods or services to the public. The convention, I suppose, would catch window cleaners, jobbing joiners, the girl who keeps the window cleaner's accounts and the boy who delivers the flyers from the local restaurant. I think that that is far too broad.
The juxtaposition of the amendments whose effects point in opposite directions encourages me to believe that we have the balance right in Clause 6 as it stands. I suggest to the Committee that both sets of amendments should be resisted.
What we have sought to do in Clause 6 is to set out a principle: first, that the effects of Clauses 6 to 8 should apply in the first place to bodies which are quite plainly public authorities such as government departments; and, secondly, to other bodies whose functions include functions of a public nature, and therefore the focus should be on their functions and not on their nature as an authority. In the latter case the provisions of the Bill would not apply to the private acts of the bodies in question.
That is the principled approach that we have chosen. Another approach would have been to draw up lists of the bodies to which the Bill did or did not apply. But we rejected that approach as a matter of principle. In particular, there would be the difficulty of compiling such a list, the arguments about it, and the difficulty at the end of the day of preserving any coherent rationale
798
in such a list. The debate that we have had today strengthens me in the view that it was right as a matter of principle to go for a principle and not a list.
Against that background, there is not a great deal more that I wish to say about the particular cases cited. What is most obvious is that the lists could scarcely end where the Opposition have suggested that they might. I appreciate what the noble Lord, Lord Henley, said: that the amendments are put down primarily to probe. We agree of course that local authorities, the police, and so on, will be subject to the Bill. Any expression such as "public authority" is bound to cover them. But it is equally obvious that the list produced in the amendment does not delineate all the obligations that we have under the European convention which we seek to make justiciable by means of the Bill in our own courts. As to the bodies which noble Lords opposite would wish specifically to exclude, I think that they would be the first to agree, at any rate in private, that it would be extremely difficult to justify excluding those bodies, however worthy they are, and not others. Some of them I do not doubt carry out some functions which are functions of a public nature. It is possible that others do not. But we see no reason why bodies which carry out functions of a public nature should not be amenable to the convention rights as interpreted and applied by our own courts as they are already indirectly in Strasbourg unless, as I said, the nature of the act complained of is of a private nature.
Whatever interpretation might he applied to the expressions "public authority" and "public functions", I doubt whether anyone would go as far as the noble and learned Lord, Lord Simon. His amendment would shift the boundary an enormous distance at a single stroke. It does not need a Mephistopheles to see that. I cannot see any rationale in a society such as ours for regarding the fact of supplying goods or services as qualifying people to be treated as on a par with public bodies, or other organisations of at least a semi-public nature having regard to certain of their functions which will be of a public nature. It would be the smallest step from there, and perhaps more honest, to give the convention full horizontal effect, as it is sometimes called—that is, to regard the convention as applying to private individuals as well as to public authorities. I sense that the noble and learned Lord might not be too averse to that. But we think that that would be a step too far in a Bill which, I repeat, is designed to allow the convention rights to be invoked in this country by people who would have already a case in Strasbourg. I therefore respectfully suggest to those who moved the amendments to consider withdrawing them.
6.15 p.m.
Lord Campbell of Alloway: Before the noble and learned Lord sits down, perhaps I may respectfully ask whether it is right that the answer to the right reverend Prelate would be yes, assuredly, from what the noble and learned Lord said: the decision, guidance, or whatever it may be from synod would attract the fast-track procedure, but only if it is a private act. In the context of the administration of synod, how can one

799
differentiate between a private and general act? On that I would need the assistance of the right reverend Prelate. It is pretty finely drawn stuff, is it not?
The Lord Bishop of Lichfield: I greatly regret that I am not comforted by the remarks of the noble and learned Lord the Lord Chancellor. He seems to have rather deliberately left out the question of religious freedom. I am concerned that a very strict, rather totalitarian view of "public" is endangering the freedom of choice of very large numbers of people in this country who see, as part of their democratic freedom, the freedom to have their children educated in a particular type of school without so-called public rights being used against that very basic freedom.
At Second Reading I was glad to speak on behalf of the Churches very much in favour of the Human Rights Bill. But if a sense of rights is being introduced in this total kind of way, at the expense of the choice of individual families, then something very serious is being lost. Church schools in my diocese welcome in considerable numbers children of other faiths. That is seen as a freedom that we respect in their case. I hope that we shall resist any infringement, on this very delicate matter, of the religious nurture of the young in our country.
Lord Lester of Herne Hill: Before the right reverend Prelate sits down, I wonder whether he is aware that the European Convention on Human rights is a charter of religious tolerance and freedom, and has been so interpreted consistently by the European Court of Human Rights in upholding pluralism and religious freedom: for example, in refusing to extend the law of blasphemy in this country to protect other faiths in a way that would be an engine of intolerance, according to the European Human Rights Commission; and in refusing persistently to permit the taxation of churches in other countries, and in other ways showing a complete respect for, as I say, religious tolerance and freedom, including the freedom of the Church of England in this country.
The Lord Bishop of Lichfield: That point has not been explicitly spelt out, in the way that the noble Lord has done, by the Government. That is what I seek.
Baroness Williams of Crosby: Perhaps I may intervene before the right reverend Prelate sits down. He will see in Article 2 of the First Protocol—I speak as a former Education Secretary—a precise commitment to the right of parents to decide, within the limits of national resources, the kind of education they wish their children to have. Recalling my own period as Secretary of State—I believe that the same holds good today—one of the things underpinning the right of parents in Britain to choose a church school for their children's education if they so wish is precisely the European Convention on Human rights. The right reverend Prelate might well feel reassured rather than the opposite.
Lord Campbell of Alloway: I still seek some assistance on the distinction and how it is drawn—even
800
an illustration—from the noble and learned Lord between a general act and a private act by the Synod. One will invoke the fast-track procedure; the other will not. I merely seek some help.
The Lord Chancellor: I am not sure whether the right reverend Prelate was in the Chamber when I read out Article 9 of the convention. I was at pains to emphasise that the convention guarantees religious freedom and entitles anyone, either alone or in community with others, in public or private, to manifest his religion or belief in worship, teaching, practice and observance. If any words of mine are necessary to add to the remarks of the noble Lord, Lord Lester of Herne Hill, it is well known that the European Court is highly respectful of Article 9. The Court does treat it as a charter for religious tolerance. I doubt whether the right reverend Prelate, were he to study the decisions of the Court under the article would find much, if anything, with which to quarrel.
I shall not be drawn into two particular responses to very particular questions. One of the dangers of Pepper v. Hart is that if one becomes drawn in that way, what one says can be too readily cited in the courts for a particular interpretation of the Bill. Pepper v. Hart does not come free of risk.
If a court were to uphold that a religious organisation, denomination or Church, in celebrating marriage, was exercising a public function, what on earth would be wrong with that? If a court were to hold that a hospice, because it provided a medical service, was exercising a public function, what on earth would be wrong with that? Is it not also perfectly true that schools, although underpinned by a religious foundation or a trust deed, may well be carrying out public functions? If we take, for example, a charity whose charitable aims include the advancement of a religion, the answer must depend upon the nature of the functions of the charity. For example, charities that operate, let us say, in the area of homelessness, no doubt do exercise public functions. The NSPCC, for example, exercises statutory functions which are of a public nature, although it is a charity. We believe that the principles of the Bill are right and that the courts will come to answers in which the public will have confidence.
Baroness Young: In reaction to my particular amendment, I thank the noble and learned Lord the Lord Chancellor for his very full and lengthy reply. I do not believe that there is any dispute at all about what he gave as his first definition of a public authority. We all understand that; there cannot be any argument about it. It is an authority set up by statute, such as a local authority.
His second definition of a public authority is the one which causes me, and I believe the right reverend Prelate the Bishop of Exeter and the other right reverend Prelate, some concern. It defines the body in question as having certain functions of a public nature.
Indeed, I was not really encouraged by the remarks of the noble Lord, Lord Lester. He said that the whole matter was defined on a case-by-case basis and that it was not a new problem. But in a sense the Bill before

801
us does create a new situation, so the situation is not precisely as it was before. The noble Lord went on to say—I shall read his remarks very carefully in Hansard—that the courts have developed certain clear principles and, for example, the functions of the Chief Rabbi or the Synod of the Church of England would not normally fall within the scope of the Bill. That does not really help us, because we do not know when a function would normally fall within the scope of the Bill and when it would not.
The noble and learned Lord the Lord Chancellor said that he had considered the provision of a list but had turned down the idea because of the complexities. Obviously, bodies that were not included in the list would feel that they were outside it but might in fact be included in the terms of the provision. The noble and learned Lord, with respect, has not quite answered my question about the sort of problems that could arise. It is not a question of whether the Church can marry somebody and whether that is a public function; it is a question of whether the Church has the right to say to a homosexual couple who "wish to marry", "I am not going to do it". That is the sort of issue to which I refer. Adoption is another example. Could a religious-based adoption agency which refused to recommend a placement with a homosexual or lesbian couple find itself in court? It ought to know.
Questions arise in regard to charities—for example, the hospice dealing with the organisation for euthanasia. I do not raise these matters as mere debating points. They actually worry quite a lot of people. We have not received an answer as to what the situation would be. I shall read very carefully what was said before considering whether to return to the matter on Report. It would perhaps be helpful to have some definitions, for instance, of "a family". The noble and learned Lord shakes his head. I am not writing the Bill. There will be many situations on which the Bill is not clear: people are concerned. This is new legislation. I do not believe that I have had a full answer to my question. I shall not press my amendment today but I shall look very carefully at what was said and consider whether to return to the matter on Report.
6.30 p.m.
LordHenley: Before I withdraw my amendment, and by implication the other amendments, perhaps I may thank the noble and learned Lord for being distinctly non-mephistophelean this afternoon. We have seen the sunny side, the angelic side, of his nature and he has given us a relatively full explanation of Clause 6, which is what we were seeking in putting down these amendments.
Some of my confusion is disappearing but at the same time my alarm is increasing with regard to the extent of the definition of "public authority", certainly as set out by the noble Lord, Lord Lester, for his party. We shall need to look much more closely, not only at the definition of "public authority" but also at the exact meaning of "functions of a public nature" in Clause 6(3)(c).
802
I appreciate that the noble and learned Lord finds himself in a very pleasant position. On the one hand, he sees us trying to limit the scope of the clause; on the other hand, he sees the noble and learned Lord, Lord Simon, trying to increase its remit. I know from experience how very pleasant it is to put the argument, "On the one hand," "On the other hand," and then to say, "We have taken the middle road". It is not a very central part of the road that the noble and learned Lord occupies, as we see it. We see the definition as far too wide. As my noble friend Lady Young said, we must look carefully at the very full response the noble and learned Lord gave to the amendments, for which I thank him, and perhaps come back to the matter at a later stage.
I accept the noble and learned Lord's arguments in their entirety as regards the exhaustive-list approach. I do not believe that one could approach the matter in that way because lists never can be exhaustive, however hard one tries. Obviously, the noble and learned Lord took some time to take my amendments to pieces fairly carefully. There was no need to do that because they were merely probing amendments. We shall try to come forward with other amendments at a later stage of the Bill to limit to some extent the width of the clause. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 37:
Page 4, line 9, after ("any") insert ("natural or legal").
The noble and learned Lord said: This is a relatively minor amendment compared to those we discussed earlier today. I hope that it will be viewed by the Government as an amendment which does not offer any form of violence to the scheme of the Bill as the noble and learned Lord the Lord Chancellor has carefully and painstakingly explained it to us.
While I fully accept what has been said about the problems associated with having an exhaustive list, it nevertheless may be valuable to set it clear on the face of the Bill that in Clause 6(3)(c) the person or persons to whom reference is made can be either natural or legal persons. When one looks at the convention rights set out in Schedule 1 to the Bill, one sees that in Article 1 of the First Protocol, on page 17 of the Bill, there is reference to "every natural or legal person", making it clear that both categories are protected when it comes to the peaceful enjoyment of their possessions. That contrasts with the provisions of the convention itself which, when dealing with, for example, the right to liberty and security in Article 5, restricts itself to the use of the word "person". I therefore hope that the Government will be persuaded of the merit of looking at this matter when they reconsider the terms of Clause 6. I beg to move.
Lord William of Mostyn: I am most grateful for that explanation. We have looked at the matter in the context of the schedule and the terms of the convention article to which the noble and learned Lord, Lord Mackay of Drumadoon, referred. We believe that the present draft of

803
the Bill achieves what the noble and learned Lord wishes to achieve since Clause 6(3)(c) refers to "any person". Unlike the situation when one looks at the drafting of Article 1, the term is well known as a term of art in our law. It is defined in the Interpretation Act 1978 and is relied upon throughout the statute book as including any person or body of persons corporate or unincorporate. I suggest that that is clearly wide enough to cover the natural or legal person to which the amendment refers. I hope that that short explanation is of assistance to the noble and learned Lord. We believe that the Bill fully accommodates what he wishes to achieve.
Lord Mackay of Drumadoon: I am grateful to the noble Lord for his explanation, which I fully understand and accept. I hope that lay people who will increasingly be looking at the Bill will do likewise. In the light of the explanation, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Simon of Glaisdale Lord Simon of Glaisdale had given notice of his intention to move Amendment No. 38:
Page 4, line 10, at end insert ("and
(d) any person concerned with the provision to the public or a section of the public (whether for payment or otherwise) of any goods, facilities or services").
The noble and learned Lord said: This amendment was discussed in the grouping with Amendment No. 36. I should like to say a word about what the noble and learned Lord said about it.
I paid earlier a well merited and genuine tribute to the intellectual power which has gone into the Bill and which has promoted and secured its cohesion. But the noble and learned Lord, like other artists before him, has, I am afraid, fallen in love with his own creation. It is the Pygmalion syndrome. When we who are supporters of the Bill suggest that perhaps so elaborate a hairstyle is not required in every circumstance and that, for example, when dealing with preceding legislation, a plainer style, which is well known to part of our law, might be acceptable, the noble and learned Lord merely says, "That does not fit in with our scheme, and that is an end of it." I am afraid that I cannot accept that. We shall have to return to the clause at a later stage. It was criticised from all parts of the House by supporters of the Bill—by the noble Lord, Lord Borrie, the noble Lord, Lord Windlesham, and my noble and learned friend Lord Donaldson of Lymington.
The noble and learned Lord said that my amendment would extend to people like window cleaners, the restaurant or the church on the corner, and so on. That is arguable, but by no means certain. Bu if those people fall within the definition of the Race Relations Act, why should they not be encompassed by the Human Rights Bill?
However, this is not the time to argue further. I am afraid that my noble and learned friend has once again clothed himself in flames and decided to send this amendment to the nether regions.
[Amendment No. 38 not moved.]
[Amendments Nos. 39 and 40 not moved.]
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 41:
Page 4, line 12, at end insert ("or the Lord Advocate or Attorney General exercising their roles as independent public prosecutors").
The noble and learned Lord said: This amendment raises the important issue of the intended effect of the Bill on the decisions taken by the Attorney-General and those who work under his supervision and by the Lord Advocate in their roles as independent public prosecutors. I accept at the outset that the role of the Attorney-General in England is not identical to that of the Lord Advocate in Scotland. However, I felt it appropriate to raise the roles of both Law Officers, though my specific concern, for reasons upon which I shall elaborate, is with the role of the Lord Advocate, his Crown counsel and procurators fiscal in Scotland.
It is clear from the discussion that has taken place in the Committee this afternoon that both the Attorney-General and the Lord Advocate fall within the definition of "public authority" as set out in Clause 6(3) of the Bill. I also accept, as I am sure the Committee accepts, that at all times those acting as independent public prosecutors will wish to follow, in the course of taking the decisions with which they are charged, all of the principles to be set out in the convention and the protocols to which the United Kingdom is bound and seek to respect the convention rights as they are defined in the Bill.
The question which arises and on which I seek guidance from the Minister is this. Is it intended that the decisions taken by or on behalf of the Attorney-General and the Lord Advocate as to whether to prosecute in a specific case, and, if there is to be a prosecution, on which charges, should be open to review by the courts on the basis that a specific decision is incompatible with one or more convention rights? In other words, the issue I seek to address is the issue of jurisdiction. Is it intended that the courts, whether it be the civil or the criminal courts, should have jurisdiction to entertain such an application, whether at the instance of the person who has been prosecuted or at the instance of a victim of a person who may have been arrested by the police but against whom no criminal proceedings are to take place?
It is not difficult to imagine an argument being evolved that a decision taken as to whether to prosecute has in some way breached, or been taken in a way which is incompatible with, the convention rights as defined in the Bill. As the noble Lord, Lord Williams of Mostyn, said on the first day of Committee, some arguments advanced in legal proceedings are more meritorious than others. It is not difficult to imagine the argument being conceived. What I wish to address is not the merits of such an application but the issue of whether the courts should have jurisdiction to entertain such an application.
I understand, though I shall be guided by English lawyers in this matter, that in limited circumstances the High Court in England will entertain judicial review proceedings against the decision of the independent prosecutor. That principle has been established certainly in relation to cases involving the prosecution of juveniles where it is possible for the person bringing

805
the proceedings to demonstrate that the DPP decision to prosecute has been contrary to settled prosecution policy.
In Scotland the position is different. I am unaware of any case in which either the High Court of Justiciary or the Court of Session has entertained proceedings which have sought judicially to review the decision of the Lord Advocate or a procurator fiscal either to initiate criminal proceedings or to refrain from doing so. The principle which applies is well established and was famously described by the then Lord Justice General, Lord Justice General Clyde, in the case of M'Bain v. Crichton in 1961. He said this:
"In this country [Scotland] he [the Lord Advocate] is the recognised prosecutor in the public interest. It is for him, in the exercise of his responsible office, to decide whether he will prosecute in the public interest and at the public expense, and under our constitutional practice this decision is a matter for him, and for him alone. No one can compel him to give his reasons, nor order him to concur in a private prosecution. The basic principle of our system of criminal administration in Scotland is to submit the question of whether there is to he a public prosecution to the impartial and skilled investigation of the Lord Advocate and his department, and the decision whether or not to prosecute is exclusively within his discretion".
The Lord Justice General went on to say:
"it is utterly inconsistent with such a system that the Courts should examine, as it was suggested it would be proper or competent for us to do, the reasons which have affected the Lord Advocate in deciding how to exercise his discretion, and it would be still more absurd for this Court to proceed to review their soundness".
That principle was recognised not long ago during the holding of the Cullen inquiry into the Dunblane tragedy, where it was felt appropriate that the procurators fiscal who had been involved in dealing with police reports relating to Thomas Hamilton should give evidence before Lord Cullen. They did so. But Lord Cullen respected the principle that it would be inappropriate to review the soundness of the decisions which the individual procurators fiscal had reached.
It is important, with any form of constitutional Bill, that this Chamber examines with great care what may be the unintended consequences of legislation being brought forward with a wide measure of support, as it is suggested this Bill has. What I seek to have clarified, particularly in relation to Scotland but also in relation to England, is the issue of jurisdiction; namely, whether the courts could confidently review those decisions I described as against the convention rights set out in the schedule to the Bill. I beg to move.
6.45 p.m.
Lord Hope of Craighead: I should like to add a few words to what the noble and learned Lord said in order to focus on what I see as a relatively narrow but important point raised by his amendment. The point is rather more narrow than the terms of his amendment suggest.
There is a considerable field of both investigation and prosecution practice which is currently subject to review under the common law by the law of Scotland, on which I am best qualified to speak. To take one recent and indeed welcome example, in a case called McLeod, which is well known to the noble and learned Lord the
806
Lord Advocate, the High Court of Justiciary in Scotland referred to a larger court for further examination the question of whether the prosecutor was obliged by Article 6(1) of the convention to disclose all material evidence for or against the accused. It took the view that these decisions were of great importance and required proper consideration of the relevant jurisprudence of the European Court of Human Rights.
I mention that because I would not like it to be thought that the court—I speak against the background of having served as chairman of the court on these issues for a number of years—was not aware of the importance of these issues and anxious to develop the jurisprudence under the common law. The point to which the noble and learned Lord has referred, however, is, as I have said, a very narrow one as to whether it is right for the court to tell the Lord Advocate whether he should prosecute or not prosecute in a particular case, and, if so, on what charges he should or should not prosecute.
There is, to add further background to the point, certainly jurisdiction to the effect that if the Lord Advocate decides to prosecute, he may be told that his prosecution is bad because it is oppressive; he may be told that it is too late; he may be told that the charges which he brings are incompetent or the wording is irrelevant. It is the narrow point of decision taking as to whether or not to prosecute that is at issue. The reason, I suspect, why the court has always in the past held back from giving directions on these matters is that it has always in the past taken the view that these questions raise difficult issues of policy which are best decided by the Lord Advocate and on which the court is really not well placed to express a view.
The issue for the noble and learned Lord the Lord Advocate, if he is to reply, is whether the law should be changed on this matter. If it is to be changed, it raises one other important point on which perhaps I should dwell at least for a moment. If a prosecution has been brought—if a decision has been taken—and the matter is then in the criminal field, there is plenty of jurisprudence in Scotland which identifies the court to which the matter can be brought; that is, the High Court of Justiciary. If there are no proceedings and a decision is being asked for as to whether the Lord Advocate ought to prosecute, there seems to me to be an open question as to whether that is a matter to be brought by way of judicial review in the Court of Session.
I do not need to emphasise the importance of the choice from the point of view of Scottish practice, because there is no appeal to the House of Lords from decisions of the High Court of Justiciary whereas there is an appeal from decisions of the Court of Session in matters of judicial review. I confess that it is not clear to me from the present wording of the Bill whether, if these matters are to be subject to review, it is clearly decided that they should be taken under review only in the High Court of Justiciary, which I would venture to suggest was the proper court for it. If that is to be the decision, it may well be that some indication in primary legislation should be given.

807
I make these observations really more to emphasise the importance of the amendment which the noble and learned Lord has suggested rather than to develop his theme in any further detail.
Lord Lester of Herne Hill: No English common lawyer has any business in this debate except, if I may, to reflect on two matters which may be helpful. I recall that there was a decision of the House of Lords in the case of Lennon where Lord Diplock indicated that in a case of criminal libel—or it may have been blasphemous libel—it was incumbent on the Director of Public Prosecutions and the prosecuting authorities to have regard to the convention so as to ensure that in exercising the prosecutorial discretion there would be no unnecessary infringement of the right to free speech. So there, in an English appeal, the House of Lords in its judicial capacity recognised that there is an international obligation on prosecuting authorities to have regard to the convention.
I also recall—I am not sure whether it was in the interstate case of Ireland v. United Kingdom—developing an argument before the European Court of Human Rights with regard to prosecutorial discretion that if, for example, the prosecuting authorities in this country were to exercise their discretion in an arbitrary and racially discriminatory way or based on the religion of particular people—prosecuting some but not others because of their colour or race—English judicial review would certainly provide an effective remedy in that context as well.
hope that those two observations are of some help in resolving this problem.
The Lord Chancellor: This amendment would explicitly exclude the Lord Advocate and the Attorney-General in their role as independent public prosecutors from the definition of a public authority in Clause 6(3)(c). It would therefore not be unlawful for them, if these amendments were passed, to act in a way which was incompatible with the convention rights. I have derived assistance from the contributions to the debate of the noble and learned Lords, Lord Mackay of Drumadoon and Lord Hope of Craighead, and of the noble Lord, Lord Lester of Herne Hill. I undertake to write to those who have spoken in support of the amendment elaborating what I now say.
It is of the first importance to distinguish clearly between judicial review and unlawful action under the convention. They are two different things. So far as I am aware, the Bill does not affect the ordinary law of judicial review. What it does do, however, is make it unlawful for a public authority to act in a way which is incompatible with one or more of the convention rights. That is set out in Clause 6(1).
In England, certainly today, decisions not to prosecute are reviewable. The test would be whether no reasonable prosecutor could have abstained from prosecuting. I do not see in principle why that should not apply to a decision to prosecute where no reasonable prosecutor would prosecute. I would also agree with the noble
808
Lord, Lord Lester, that a decision to prosecute only those who were black but not those who were white would be perverse and judicially reviewable. That, however, is not what is touched by the Bill. I am not aware of—and no noble and learned Lord has drawn my attention to—any provision of the convention which a decision to prosecute or not to prosecute might be said to infringe. So, as at present advised, I do not see how a prosecutor—
Lord Lester of Herne Hill: I am grateful to the noble and learned Lord for giving way. The example I had in mind was the right to liberty under Article 5 of the convention. Perhaps I may give, as an example, internment without trial, which was the subject matter of the Irish state case where I had the honour to represent the United Kingdom Government. A discriminatory use of internment without trial would plainly breach Article 5 and a decision to arrest and detain with a view to prosecution might breach Article 6 read with Articles 5 and 14. That is the risk that could arise since people would then find themselves facing criminal charges on a discriminatory basis. Some such argument might be mounted in relation to the discretion of the prosecutor. The example I have given of Article 10, where the prosecution related to free speech, was why Lord Diplock considered that the prosecutor needed to have regard to the convention in that context.
The Lord Chancellor: The noble Lord refers to Article 5. I should have thought that internment or detention was not a matter of prosecutorial decision and therefore would fall outside Article 5. As at present advised, I am not persuaded that a decision to prosecute or not to prosecute is caught by the convention or by any provision of the convention. But I shall look at that with greater care.
I can see that certain provisions of Article 6 and in particular those in paragraph (3) which confer certain minimum rights on persons charged with a criminal offence could be infringed by a prosecutor. So I am not saying that it appears to me that prosecutors are free of any duties under the convention. But for the present I do not see how a decision whether to prosecute would be caught by any particular provision of the convention. But I shall look at it and write to the noble and learned Lords who have spoken in support of the amendment.
In developing our proposals in Clause 6 we have opted for a wide-ranging definition of public authority. We have created a correspondingly wide liability. That is because we want to provide as much protection as possible for the rights of individuals against the misuse of power by the state within the framework of a Bill which preserves parliamentary sovereignty.
As a matter of principle it is plain that a prosecuting authority is a public authority and that it is right that it should abstain from acting in a way which is incompatible with one or more of the convention rights, but if it does so act, then it acts unlawfully.
Given the central role played in our criminal justice by independent public prosecutors, it would create a significant gap in the protection provided by the Bill if they were not subject to Clause 6. I do not see why they

809
should be exempted. I do not see why public prosecutors should not be required to act in a way which is compatible with the convention in just the same way as the courts themselves and investigators such as the police are required to act compatibly.
I oppose this amendment on its own terms. In my view, it would be subversive of the rule of law to provide that independent public prosecutors should be above the convention when no other public body is so placed. My right honourable and learned friend the Attorney-General and my noble and learned friend the Lord Advocate do not desire to be above the convention. In my view it would be bizarre if they were above it, while, in the case of the Attorney-General, the body for which he is responsible—namely, the Crown Prosecution Service—must comply with the convention. For these reasons, I oppose this amendment in its own terns but on the narrow issue of whether a decision to prosecute could arguably be said to infringe any convention rights, I shall consider it and write to the noble and learned Lords.
7 p.m.
Lord Mackay of Drumadoon: I am grateful to the noble and learned Lord the Lord Chancellor. I am sure that he will appreciate that the amendment was tabled to probe the Government's position on this issue. In moving the amendment I did not for a moment begin to suggest that either the Attorney-General or the Lord Advocate would desire to be above the convention or that in their prosecutorial work they would in any way wish to ignore any of the convention rights.
Clearly, there is a difference in practice between the law of England and the law of Scotland on this issue. I am sure that the noble and learned Lord the Lord Advocate will appreciate and accept that one would not wish, in Scotland at least, to admit the possibility of either the High Court or the Court of Session reviewing decisions of the type I have described and those of the nature on which the noble and learned Lord, Lord Hope, focused in his contribution lest the practice be expanded into undesirable fields.
However, I am grateful to the noble and learned Lord the Lord Chancellor for undertaking to write further about this matter. No doubt he will be assisted in framing his letter by the noble and learned Lord the Lord Advocate and others. Having received the letter, I shall reflect, consult with others whom I know are interested in this issue and possibly return to it at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 42 not moved.]
Lord Meston Lord Meston moved Amendment No. 43:
Page 4, line 15, leave out subsection (5) and insert
("(5) A private body, which sometimes exercises functions of a public nature, shall not because of subsection (3) be regarded as a public body in respect of an act which is private in nature.").
The noble Lord said: This amendment is supported by the Law Reform Committee of the Bar Council and by the Criminal Bar Association. It proposes a different form of wording for Clause 6(5). As Members of the
810
Committee have been told in the course of the debate this afternoon, Clause 6(3) gives a wide and non-exclusive definition to "public authority". But Clause 6(5), as drafted, has caused concern because it may be construed as removing from the protection to be given by the Bill public bodies when they are engaged in activities which may be classified as private. For example, employment relationships are not usually classified as public in nature.
This amendment is intended to make it clear that public bodies must comply with the Human Rights Bill, when it is enacted, in all their actions, including the treatment of their employees. For example, if that treatment involves an interference with the private life of an employee or a restriction on an employee's freedom of expression, it is suggested that such treatment should not be taken outside the protection of the Bill.
Clause 6(5), as presently drafted, may also give rise to uncertainty about its application to public servants who act outside the scope of their authority. An example is the notorious case of Makanjuola v. The Metropolitan Police Commissioner where the plaintiff was indecently assaulted by a police officer who had gained entry to her home by showing his warrant card. Under Clause 6(5) such an action might be said to be private rather than public. Therefore, there is a risk that the more seriously a public official misbehaves, the less likely that the victim will have the protection of the Bill. This amendment is intended to try to limit the exclusions in the Bill to truly private functions.
At an earlier stage the noble and learned Lord the Lord Chancellor said that he felt that the balance in Clause 6 was right. I would not argue in general with that proposition. This amendment is intended to achieve a small measure of fine tuning. I beg to move.
Lord Renton: I support this amendment. It is mainly a matter of drafting. I do not believe that there is much difference in substance between what is proposed in the amendment and what is already in Clause 3(2)(c) and in Clause 6(5) as presently drafted. But that subsection does not give enough information, whereas this amendment amplifies the position and is well worthy of consideration.
The Lord Chancellor: I understand that this is a probing amendment, but what I am concerned to elucidate is whether it proceeds on the basis of a misunderstanding about the way in which Clause 6 works. Interpreting Clause 6(3)(c) as applying to all public authorities, even obvious ones, they already qualify as public authorities under Clause 6(1), with the result that government departments, for example, would not be bound by the convention in respect of their private acts. Of course, once a body qualifies as a public authority under Clause 6(1), if any of its acts are incompatible with one or more of the convention rights, it acts unlawfully.
The noble Lord has explained the reasoning behind his amendment. Essentially it is intended to ensure that public authorities must comply with Clause 6 in relation to all their acts, including those which might be regarded

811
as private in nature, such as those relating to employment matters, while exempting private bodies with some public functions from Clause 6 in relation to their private acts. With respect, I think that the noble Lord may have misunderstood how Clause 6 in its current form is intended to work in relation to public authorities. I hope that my explanation will persuade him that his amendment is not necessary.
For the purposes of this amendment, I hope that the Committee will forgive me if I repeat and perhaps amplify some of the observations that I made pursuant to an invitation from the noble Baroness, Lady Young, that I give a better explanation. Clause 6(1) refers to a "public authority" without defining the term. In many cases it will be obvious to the courts that they are dealing with a public authority. In respect of government departments, for example, or police officers, or prison officers, or immigration officers, or local authorities, there can be no doubt that the body in question is a public authority. Any clear case of that kind comes in under Clause 6(1); and it is then unlawful for the authority to act in a way which is incompatible with one or more of the convention rights. In such cases, the prohibition applies in respect of all their acts, public and private. There is no exemption for private acts such as is conferred by Clause 6(5) in relation to Clause 6(3)(c).
Clause 6(3)(c) provides further assistance on the meaning of public authority. It provides that "public authority" includes,
"any person certain of whose functions are functions of a public nature".
That provision is there to include bodies which are not manifestly public authorities, but some of whose functions only are of a public nature. It is relevant to cases where the courts are not sure whether they are looking at a public authority in the full-blooded Clause 6(1) sense with regard to those bodies which fall into the grey area between public and private. The Bill reflects the decision to include as "public authorities" bodies which have some public functions and some private functions.
Perhaps I may give an example that I have cited previously. Railtrack would fall into that category because it exercises public functions in its role as a safety regulator, but it is acting privately in its role as a property developer. A private security company would be exercising public functions in relation to the management of a contracted-out prison but would be acting privately when, for example, guarding commercial premises. Doctors in general practice would be public authorities in relation to their National Health Service functions, but not in relation to their private patients.
The effect of Clause 6(5) read with Clause 6(3)(c) is that all the acts of bodies with mixed functions are subject to the prohibition in Clause 6(1) unless— I emphasise this—in relation to a particular act, the nature of which is private.
Clause 6 accordingly distinguishes between obvious public authorities, all of whose acts are subject to Clause 6, and bodies with mixed functions which are caught in relation to their public acts but not their private acts. In so far as the noble Lord is concerned with obvious
812
public authorities such as those I have described, Clause 6 already does the job which his amendment is designed to do. In so far as he is concerned with bodies in the second category, I would contend that it is right to exempt from Clause 6 their private acts. In relation to employment matters, for example, I do not see a distinction between a private security company which has a contracted-out prison in its portfolio and one which does not. There is no reason to make the first company liable under Clause 6 in respect of its private acts and the second one not liable simply because the first company is also responsible for the management of a prison. As far as acts of a private nature are concerned, the two private security companies are indistinguishable; nor do I see a distinction in this area between Railtrack and other property developers or between doctors with NHS patients and those without.
Returning to the noble Lord's amendment, I do not believe that its actual effect—or its intended effect—differs significantly, if at all, from the effect of the provisions currently in the Bill. I do not see any real difference between,
"any person certain of whose functions are functions of a public nature",
as in Clause 6(3)(c), and
"A private body. which sometimes exercises functions of a public nature",
as in the amendment. Both of them refer to an entity which has mixed public and private functions. Both of them feed into the exemption for private acts in Clause 6(5). As I have explained, it may be that the Government and the noble Lord are aiming at the same target. In the light of that, I hope that the noble Lord will seek leave to withdraw his amendment.
7.15 p.m.
Lord Meston: Iam most grateful to the noble Lord, Lord Renton, for his support—albeit on the basis that I was seeking only to improve the form of the Bill rather than its substance in any material way.
I am most grateful also to the noble and learned Lord the Lord Chancellor for his full and careful explanation of his reading of the way in which Clause 6 is intended to work. There are, indeed, certain grey areas, caused in particular by the interaction of the phraseology concerned with bodies whether public or private and with activities of a public or private nature. This is not something to be pressed further this evening, but I shall wish to reflect upon the amendment and, if more refined provisions can be produced at a later stage, I reserve the right to do so. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 44 not moved.]
Lord Meston Lord Meston moved Amendment No. 45:
Page 4, line 17, leave out from second ("act) to end of line 19.
The noble Lord said: Clause 6(6) as presently drafted excludes a failure to legislate from the omissions which could give rise to a remedy under the Bill, thus it may be interpreted as inhibiting the courts from making declarations in situations in which the absence of legislation violates the convention. The convention

813
requires that any necessary interference with convention rights must be regulated and defined by law with sufficient precision and clarity as, for example, was the case in the telephone tapping case of Malone where the absence of a statutory regime led to the finding of a violation of Article 8 of the convention.
The purpose of the amendment is to explore whether and to what extent it is right for a government—for any government—to drag their heels in introducing legislation necessary to bring the United Kingdom into compliance with the convention. I beg to move.
Lord Ackner: I support this amendment. In addition to what has been said by the noble Lord, Lord Meston, Clause 6(6) may have serious implications for the victims of crime. Strasbourg case law recognises that under certain circumstances the state is under an obligation to legislate so as to prohibit the infringement of convention rights by private individuals. Typically, the infringement will involve the commission of a criminal offence against a victim. Thus, in the case of X. and Y v. The Netherlands it was the failure of Dutch law to criminalise sexual abuse of a mentally handicapped 16 year-old which resulted in a violation of Article 8. Similarly, in the recent case of A. v. United Kingdom it was the failure of the UK to legislate so as to prohibit the abusive beating of a child by a parent which was found by the Commission to involve a violation of Article 3.
The courts may in certain circumstances be able to bridge such gaps by the development of common law rules, as the House of Lords did when it interpreted the offence of rape so as to include rape within the marriage. But by expressly excluding a failure to legislate from the acts that can give rise to a violation, Clause 6(6) may inhibit the ability of the courts to develop positive protection in this area. This would increase the risk of further adverse rulings in Strasbourg.
Lord Renton: I am very puzzled by subsection (6). If one refers to subsection (1), one is dealing with incompatibility on the part of a public authority in the way that it does its work with a convention right. But I cannot understand how a mere negative failure to introduce a proposal for legislation or to make primary legislation can be incompatible with the convention. It appears that we are getting into the area of non-events which are irrelevant.
I am also puzzled by the last two words of subsection (6). What is a remedial order? That is not a parliamentary phrase that I have ever heard. It may be a parliamentary way of describing an act of some kind, but I am not familiar with it. I believe that noble Lords will be helped if they can be told what "remedial order" means in this context.
Lord Lester of Herne Hill: I hope that my noble friend Lord Meston and the noble and learned Lord, Lord Ackner, will forgive me for not being enthusiastic about this amendment for a reason that I can explain briefly. I was once guilty of a constitutional solecism in The Queen v. Secretary of State for Employment, ex parte
814
Equal Opportunities Commission. In that case relief was sought against Mr. Michael Howard (then Secretary of State for Employment) for his failure to introduce legislation amending the employment protection legislation so as to remove indirect sex discrimination against women. Reliance was placed on directly effective provisions of European Community law.
It was pointed out both in the House of Lords and the lower courts that one could not seek that kind of direct relief without invading the prerogative and privileges of Parliament as an institution, and there would be clashes between the law of Parliament and the law of the courts if one sought what was tantamount to an order against the Secretary of State for failing to introduce legislation into Parliament. Instead, what the Law Lords did was in a way more aggressive. They disapplied the legislation and displaced the inconsistent provisions. They could do that because Section 2 of the European Communities Act so required.
I am a reluctant convert to the proposition in this Bill that the courts should not have the power to strike down legislation or interfere with parliamentary sovereignty. It therefore seems to me to be sensible to include Clause 6(6) as the logical consequence of that decision so as to prevent the kind of challenge that I have endeavoured to summarise for the reasons that I have given.
The Lord Chancellor: The noble Lord has explained that the purpose of his amendment is to ensure that the courts are not inhibited from making a declaration of incompatibility when the case before them turns on the absence of legislation rather than on a specific provision of legislation which is said to be incompatible with the convention rights. His particular concern is with cases where a public authority interferes with a convention right in an area which is not regulated by law. I shall try to explain that the Bill provides a remedy for the individual in the kind of case that has prompted this amendment and that the amendment has an effect which is inconsistent with one of the fundamental principles on which the Bill is based.
If a person believes that his convention rights have been violated as a result of action by a public authority which is not governed by legislation the right course is for him to bring legal proceedings against the authority under Clause 7 of the Bill or to rely on his convention rights in any other legal proceedings to which he and the authority are a party. If the court finds in his favour it will be able to grant whatever remedy is within its jurisdiction and appears just and appropriate. The fact that there is no specific legislation for the court to declare incompatible with the convention does not affect the ability of the person concerned to obtain a remedy. The absence of legislation entails that there is no legislative warrant for acts in breach of the convention by the public authority. The Minister, however, as the noble Lord, Lord Lester, rightly points out, is protected by Clause 6(6) from any claim that he is in breach by failing to bring forward legislation. That is part of the scheme of the Bill to underpin parliamentary sovereignty.
Further, the purpose of a declaration of incompatibility is to allow the courts to make a public statement that they cannot interpret legislation in a way which is

815
incompatible with the convention rights. It is just not possible to do so. This provides a trigger for the power to make a remedial order in Clause 10. Because the Bill protects public authorities which are acting so as to give effect to primary legislation, even if the action is incompatible with the convention rights, there is nothing that the courts can do to provide a remedy to the person affected by their actions. That is why the power to make a declaration of incompatibility is needed in these cases. There is no corresponding need to make a declaration of incompatibility in cases where the problem is an absence of legislation, because there is nothing to stop the courts providing a remedy in those cases. There is no legislative bar or block on the courts doing so. On the contrary.
I therefore believe that the noble Lord, Lord Lester, is right not to be enthusiastic about this amendment. I believe that the noble Lord's amendment is unnecessary and would have undesirable consequences if it were accepted.
Clause 6(6) exempts from Clause 6 a failure by a public authority to,
"introduce in, or lay before, Parliament a proposal for legislation; or make any primary legislation or remedial order".
This amendment would remove that exemption so that a failure by a public authority to do one of those things would be capable of being challenged in the courts on the grounds that it was unlawful because it was incompatible with one or more of the convention rights.
In effect—and I believe this to be the compelling argument against the amendment—it would make a decision not to enact primary legislation justiciable before the courts. That would be inconsistent with a fundamental precept of our constitutional arrangements; namely, that the courts do not interfere with the proceedings of Parliament. In short, the Bill is designed to preserve parliamentary sovereignty and this amendment would encroach upon that.
As to the examples which the noble and learned Lord, Lord Ackner, gave, in those cases, the Government would of course consider whether to make a legislative response to any decision of the Strasbourg court. I should add also that judges do, in their judgments from time to time, draw attention to the need for Parliament to consider legislative change and after the passage of this Bill they will remain as free to do that as they have always been and have felt themselves free to do.
Lord Renton: Before the noble Lord, Lord Meston, replies perhaps I may say that the noble and learned Lord the Lord Chancellor has gone a long way towards filling the gaps in my mind. However, he has not dealt with the question which I asked him to deal with in relation to the words "remedial order". It would seem that a remedial order means an order made by a court of law. Bearing in mind that earlier we were talking about parliament and legislation, for the sake of clarity should we not make it clear that that refers to a remedial order by a court of law?
The Lord Chancellor: "Remedial order" is an order of the kind defined in Clause 11.
Lord Meston: Dealing with the "remedial order" point, the noble Lord, Lord Renton, has spotted a drafting
816
defect in the Bill which has irritated me in the sense that Clause 11 refers for the first time to a definition of a remedial order, or a partial definition of it when in fact it covers Clause 10. It would be much more helpful to have somewhere in Clause 10 the phrase "remedial order" introduced for the first time. But that is a drafting point rather than anything else.
I am grateful to the noble and learned Lord, Lord Ackner, for his assistance in supporting this amendment. I am comforted by the explanation of the noble and learned Lord the Lord Chancellor which suggests that it will be no defence to proceedings brought under the convention to say that there is no appropriate legislation. That is a substantial answer to the point raised by the amendment.
But I do not accept the proposition that a failure by the Executive to legislate is in any way an infringement of parliamentary sovereignty. Surely it is the absence of any parliamentary activity which is involved and the absence of any parliamentary initiative by the Executive. That is the situation about which I am troubled in this amendment.
Having said that, I am conscious of the fact that a substantial answer has been given by the Government to the point raised in this amendment and that it does not have the support of my noble friend Lord Lester of Herne Hill. I shall not completely scuttle off with my tail between my legs but I will beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6, as amended, agreed to.
Lord Haskel: I beg to move that the House be now resumed. In moving this Motion, I suggest that the Committee stage begin again not before 8.35 p.m.
Moved, That the House be now resumed.— (Lord Haskel.)
Lord Simon of Glaisdale: May I ask the Whip until what time it is proposed that we should sit this evening? In asking that question, perhaps I may remind him of the Rippon Committee recommendations on the Sittings of the House and also the fact that we have had three introductions and a Statement lasting three-quarters of an hour.
Lord Haskel: I shall respond to that when we return after the Dinner Hour when I shall have had the opportunity to consult the people who are dealing with the Committee stage of the Bill.
Lord Simon of Glaisdale: I am much obliged to the noble Lord.
On Question, Motion agreed to.
House resumed.

Food Protection (Emergency Prohibitions) (Dounreay Nuclear Establishment) Order 1997
7.36 p.m.
Baroness Farrington of Ribbletonrose to move, That the order laid before the House on 31st October be approved [12th Report from the Joint Committee].
The noble Baroness said: My Lords, the order before the House today seeks your Lordships' approval for an emergency order made on behalf of the Secretary of State for Scotland to ban fishing for all species of fish and shellfish in an area of water around the Dounreay nuclear establishment.
The order was made on 29th October as a result of the detection of 34 fragments of irradiated fuel by the United Kingdom Atomic Energy Authority (UKAEA) during its recent survey of offshore sediments. The survey was an extension to the Atomic Energy Authority's survey programme aimed at establishing the source of particulate contamination detected on the Dounreay foreshore since 1984 and on the public beach at Sandside Bay.
The decision to make this Food and Environment Protection Act (FEPA) order was based on advice from the Scottish Environment Protection Agency, (SEPA), which is the regulatory agency and acts as a source of independent advice to the Scottish Office. In providing this advice, the Scottish Environment Protection Agency has carefully considered the information currently available. It has taken into account the contamination of seabed sediments by fragments of irradiated nuclear fuel extending for at least 1 kilometre laterally along the coast from the Dounreay main site outfall. On the basis of that information, the Scottish Environment Protection agency requested a restriction on the harvesting of seafood around the area as a precautionary measure.
The order therefore prohibits the taking of all species of fish and shellfish within a 2 kilometre area of water around the main outfall pipe of the Dounreay nuclear establishment, again as recommended by the Scottish Environment Protection Agency. I must emphasise that our aim in taking the action is to ensure effective protection of public health.
I am advised, on the current information available, that the risk to public health is likely to be very low, although there does remain a possibility that fragments of the irradiated nuclear fuel could be taken up by seafood species and subsequently enter the human food chain. If a fragment of this irradiated nuclear fuel was to be ingested, it could result in severe acute radiation effects and significant long term health effects. That is the reason, therefore, that this precautionary measure has been taken. The protection of public safety is of paramount importance.
We are advised by the Scottish Fisheries Protection Agency (SFPA) that very little commercial fishing takes place in the closed area of water. Some fishing for crabs and lobsters takes place on a seasonal basis. We have been advised also that the closed area may affect the
818
harvesting of a run of wild salmon. It is not yet clear whether this run is within the exclusion zone, and that will need to be examined further.
By acting quickly to protect public health, we also ensure that the good name of the Scottish fisheries industry is protected. The quality of Scottish produce is second to none. In taking action to close the area for fishing as a precautionary measure, we can demonstrate to our trading partners and customers that the safety and quality of our produce is of paramount importance.
I must stress also that at this stage no fragments of irradiated nuclear fuel have been found in fish or shellfish during recent aquatic monitoring programmes in the area carried out on behalf of the Scottish Office by the Scottish Environment Protection Agency.
Indeed, following the making of the order a request was received from fishermen to recover their catch from the prohibited area. Consent was granted by the Scottish Office and on 4th November this year 69 creels were recovered under the supervision of the Scottish Environment Protection Agency and the Atomic Energy Authority. All the catch, mainly crabs and lobsters, was individually monitored, and no radioactivity was found. The catch was detained for further examination by the Scottish Environment Protection Agency and the Atomic Energy Authority. Some contamination was found adhering to one creel. It consisted of a small piece of black tape, which showed readily detectable levels of radioactivity. Further detailed analysis of the tape is currently under way.
Fragments of irradiated nuclear fuel have been found on the Dounreay foreshore since 1984 at a rate of approximately one per month. The Committee on Medical Aspects of Radiation in the Environment (COMARE) and the Radioactive Waste Management Advisory Committee (RWMAC), in their independent reports, published in May 1995, concluded that the chance of a member of the public encountering a fragment on the beach was considered to be extremely small. The operator has undertaken investigations to find the source of the material. The work was restricted initially to the foreshore. Following an isolated find at Sandside Bay earlier this year, investigations commenced offshore and 34 fragments were found in offshore sediments. Their presence was notified to the Scottish Environment Protection Agency which has made a clear recommendation that interim action is required.
The order is based upon these recent results. The extent of the ban relates to an area of 2 kilometres of the main outfall pipe of Dounreay and reflects the extent necessary to deal with the current situation. The source of the fragments has not yet been identified by the Atomic Energy Authority. Once that is determined a more accurate assessment of the risk will be possible.
The Scottish Environment Protection Agency has confirmed that it will ask the National Radiological Protection Board (NRPB) to assist it in producing an assessment of the risks from fragments of irradiated nuclear fuel offshore at Dounreay. When the results of that assessment are available, the Scottish Environment Protection Agency will reassess its current advice. I am

819
certain that the Scottish Environment Protection Agency and the National Radiological Protection Board will undertake that work as quickly as possible, but it is likely to take some months.
I must re-emphasise that our aim in taking this action is to safeguard public health. I beg to move.
Moved, That the order laid before the House on 31st October be approved [12th Report from the Joint Committee.]—(Baroness Farrington of Ribbleton.)
7.45 p.m.
The Earl of Courtown: My Lords, I thank the Minister for her clear and concise explanation of why the order has been brought before us. I realise that in such incidents, as the Minister said, public health is of paramount importance. I note that she confirmed that there had been no evidence of contamination of fishing species in the area. I should like to know who carried out the inspections off the coast at Dounreay.
Is the Minister aware that the order will not affect just the 2 kilometre area about which she talked but the reputation of all fish and shellfish caught throughout northern waters? As the Minister confirmed, it must be emphasised that produce from outside the area has not been found to be contaminated.
I was made aware in the early part of the year that fishing is of prime importance economically in this area. I hope that the Minister will make her right honourable friend aware of that fact, especially as I believe—I should like her to let me know whether or not this is so—there is no compensation available for fishermen as a result of the order. We of course support the order, but we are concerned for the livelihoods of those fishing in northern waters.
Baroness Farrington of Ribbleton: My Lords, I thank the noble Earl for his interest and his questions which I shall attempt to answer to his satisfaction. I am sure that if any point remains to be clarified, we can do so by letter. The inspection was carried out by the operator (the UKAEA) which undertook the offshore survey as an extension of the monitoring programme. It is aimed at establishing the route by which the particles have been appearing on the foreshore.
Fragments were detected offshore for the first time during August and September as a result of the survey. SEPA informed the Scottish Office on 23rd October that it advised an interim ban. Obviously there is concern. I confirm that no compensation is available when action is taken to protect food safety because the safety of the food chain is of paramount importance.
The order will be lifted when it is felt safe to do so. It will be reviewed when there has been a further assessment by the National Radiological Protection Board and SEPA. That is likely to take several months. I want to clarify the point, because I notice a questioning look on the face of the noble Earl. It is not the policy to compensate when taking action to ensure food safety. I commend the order to the House.
On Question, Motion agreed to.

Summer Time Order 1997
7.48 p.m.
Lord Hoylerose to move, That an humble Address be presented to Her Majesty praying that the Summer Time Order 1997 be made in the form of the draft laid before the House on 27th October [11th Report from the Joint Committee].
The noble Lord said: My Lords, I beg to move that the Summer Time Order 1997 be approved. The draft order before your Lordships this evening has been considered by the Joint Committee on Statutory Instruments, and has been approved by affirmative resolution in another place.
As your Lordships will see, the order is uncontentious. It does no more than continue for a further four years—that is, for 1998 to 2001—the existing arrangements for the starting and ending dates of summer time. In line with previous years, summer time will start at 1 a.m. GMT on the last Sunday in March and end at I a.m. GMT on the last Sunday in October. That will mean that summer time will run from 29th March to 25th October in 1998; 28th March to 31st October in 1999; 26th March to 29th October in the year 2000; and 25th March to 28th October in 2001.
These dates are in accordance with the 8th EC Directive on summer time in the European Union. EC directives on summer time are concerned only with setting the start and end dates. Noble Lords will recall that until 1996 the UK and the Republic of Ireland had a derogation from the directive which enabled them to continue to end summer time in October rather than in September, the date preferred by other member states.
For the past two years, however, that derogation has not been required. This follows a decision by our European partners that an October end date would also have advantages for them. That has removed the uncertainty that was caused by the one-month difference among member states in the times that they altered their clocks. Travellers and business, particularly transport operators, have all benefited from this change. I therefore seek the agreement of the House to the continuation of the present arrangements for a further four years. I beg to move.
Moved, That an humble Address be presented to Her Majesty praying that the Summer Time Order 1997 be made in the form of the draft laid before the House on 27th October [11th Report from the Joint Committee].—(Lord Hoyle.)
Baroness Anelay of St. Johns: My Lords, I thank the Minister for his explanation of the order. When the Summer Time Order was last before the House in 1994, it was then the noble Lord, Lord McIntosh of Haringey, who responded for the Opposition. Well, the cast list and the stage directions seem to have changed, for the moment at any rate, but I take the same view as the noble Lord did on that occasion. It is indeed an uncontroversial order and we shall not oppose it.
However, I shall make a brief reference to the issues related to the order, just as the noble Lord, Lord McIntosh, did some three years ago. There are those who would argue that this order does not go far enough—that we should have double summer time so that our

821
trading day would coincide exactly with that of our colleagues in continental Europe. There would be special advantages, in particular for the banking and financial services sectors. We have two out of the top four banking and financial services centres in the EU within the UK, based in London and in Edinburgh.
The issue of double summer time was debated in another place in January 1996, when my honourable friend Mr. Butterfill, introduced the British Time (Extra Daylight) Bill. He pointed out the advantages of aligning our summer time exactly with that of our EU colleagues. He also, in due fairness, pointed out the disadvantages. Noble Lords will be glad to hear that I do not propose to go through that list tonight. However, without using too much of a pun, time does indeed move on. There have been two developments since we last debated the order which may have a bearing upon the issue of summer time.
First, there is the issue of EU expansion. For example, what would be the potential impact of proposals which have already been made for the extension of the EU into eastern European countries which are significantly further east than the current time zone covered by the EC 8th Summer Time Directive? Has the Minister any views about the future effect of EC expansion eastwards upon summer time directives?
The second point is connected to the powers of the Scottish parliament and was brought to my attention during the David Frost television programme yesterday morning when the issue of summer time was raised by Mr. David Frost during his interview with Mr. Richard Branson. Mr. Branson suggested that Scotland might choose to have a different time zone from that adopted in the rest of the UK, if indeed we move to double summer time. That raised in my mind the question of the powers of the Scottish parliament, now that we know that the Government are proposing to create such a body. If this Parliament were at some stage to adopt double summer time—that is, the Westminster Parliament—could a Scottish parliament require single summer time for Scotland? Further, just how desirable or, indeed, sensible might that be? I would be grateful if the Minister could comment upon those points either now or by writing to me in the future. However, as I said earlier, we do not oppose the order.
Lord Monson: My Lords, before I put a question to the Minister, perhaps I may correct the noble Baroness on one point. She suggested that all other European or EC countries are in the same time zone. That is not correct. Greece, the Republic of Ireland and Portugal are in different time zones.
Baroness Anelay of St. Johns: My Lords, the noble Lord is absolutely right. I was trying to convey the fact that such changes might occur. There are countries being brought into the EU which are significantly—and I hope that I used the word "significantly"—further east and in different time zones. The noble Lord was completely right to point out the different situation with regard to Ireland.
Lord Monson: My Lords, I am grateful to the noble Baroness. Of course, she made an entirely valid point about the countries coming in from further east. It may be
822
worth noting that Portugal carried out an experiment of going on to Central European Time, but the Portuguese people did not like it so the country reverted to UK time, so to speak.
Can the Minister say whether Her Majesty's Government are negotiating, or proposing to negotiate, with other European governments with a view to coming to some agreement to start summer time in the middle of March rather than at the end of that month every year so as to ensure that Easter always falls upon a date when summer time is in force? I have not given the Minister any notice of that question, but it is a matter worthy of consideration.
Lord Hoyle: My Lords, the noble Baroness, Lady Anelay, was quite right to say that the positions have been reversed on this occasion. Indeed, I have to reply in the way that her noble friend Lady Blatch did on a previous occasion. I should like, first, to deal with the question raised by the noble Baroness; namely, what difference would there be regarding the time zones which new members of the EU might adopt? As has been said, there are already two states—Finland and Greece—which have different time zones from ours. It is a matter for consideration. However, if the noble Baroness requires further information, I am sure that we can communicate with each other on that particular point.
As regards the question of Scotland, I am aware that it has been suggested that the Scottish parliament should be able to decide its own time zone. However, I should point out that different time zones within the UK would have significant effects on transport, business and communication links. We therefore consider that whatever arrangements are in place should apply to the United Kingdom as a whole. It is also wrong to assume that there is a regional split of opinion in relation to the zones. Many in England and Wales favour the status quo, while there are others in Scotland who would support a move to CET.
As regards starting summer time in mid-March, the cold weather does of course continue well into March and onwards. That is one of the reasons why we have always felt that it would be better for us to continue with the present system.
The noble Lord, Lord Monson, asked whether we would be negotiating with other European governments. I shall take advice on that point and write to the noble Lord on the matter. I commend the order to the House.
On Question Motion agreed to.
Lord Haskel: My Lords, I beg to move that the House do now adjourn during pleasure until 8.35 p.m.
Moved accordingly, and, on Question, Motion agreed to: the said Address to be presented to Her Majesty by the Lords with White Staves.
[The Sitting was suspended from 7.58 p.m. to 8.35 p.m.]

Human Rights Bill [H.L.]
House again in Committee.
Clause 7 [Proceedings]:
Lord Simon of Glaisdale: Before the noble Lord, Lord Lester of Herne Hill, moves Amendment No. 46, perhaps I may at last say something. The Government Whip kindly said that he would tell us what our bedtime would be when he came back to the Chamber.
Lord Haskel: With the permission of the Committee, the usual channels have consulted and will give a suggested finishing time at 9.30 p.m.
Lord Lester of Herne Hillmoved Amendment No. 46:
Page 4, leave out line 26.
The noble Lord said: In moving Amendment No. 46, I shall speak also to Amendments Nos. 50 and 56. They are designed to remove what I regard as the unnecessarily legalistic restrictions in Clause 7 on the standing needed to apply for judicial review where convention rights are at stake. They are, I hope, in accordance with the Bill's philosophy; namely, that of seeking to confer collateral advantages rather than to undermine the principles of the Bill.
There is a curious anomaly in the Bill as it stands. It is traditionally British in its main principles respecting both the English constitutional doctrine of parliamentary sovereignty and the need to provide effective British judicial remedies for breaches of convention rights. The Bill is also British in empowering all our courts and tribunals to interpret and apply the convention rather than to establish a special constitutional court. The Bill is British, too, in requiring our courts to take into account the European jurisprudence from Strasbourg but not to be ruled by it. Yet Clause 7 makes a curious and anomalous departure from this very British scheme. Instead of relying upon the well developed public law concepts—judicial review concepts—of legal standing for judicial review and other proceedings, the Bill imports a test of legal standing derived from the concept of a victim to be used by the European Court of Human Rights in interpreting and applying Article 34 of the convention, as it will be when it is amended by the 11th protocol.
The Notes on Clauses explain that Clause 7(3) provides for the purpose of the sufficient interest test in judicial review proceedings that an applicant can seek judicial review of the act of a public authority on the grounds that the act is unlawful under the Bill,
"only if he is, or would be, a victim of that act".
The Notes on Clauses state,
"This means that the ability to apply for judicial review on convention grounds which is narrower than for judicial review applications otherwise corresponds to the standing or locus test under Article 34 of the convention itself for bringing complaints to the European Court of Human Rights".
The Notes on Clauses do not explain the reasons and perceived mischief that have led the Government to seek deliberately to narrow the well-developed English
824
public law and Scots judicial review concepts of sufficient interest adopted by Parliament and developed by our courts.
Parliament enacted Section 31(3) of the Supreme Court Act 1981 imposing a jurisdictional requirement of "sufficient interest" for an applicant to apply for judicial review of administrative action. That test of sufficient interest has also been included in Order 53, Rule 3, of the Rules of the Supreme Court. The same applies under the Scottish Rules of Court for judicial review.
I am sorry that the noble and learned Lord, Lord Woolf, is not in his place. I know that he came to this debate with the hope of being able to support the amendment. In their masterly fifth edition of Stanley De Smith's Judicial Review of Administrative Action, the noble and learned Lord, Lord Woolf, and Professor Jeffrey Jowell QC refer to the generous and sensible approach to legal standing in public law cases taken by courts not only in this country but elsewhere in the Commonwealth. They point out in their book at page 127 that on applications for judicial review, because the requirement of leave in any event acts as a satisfactory filter, the need to have standing should be no more than a convenient general principle to be taken into account by the court when determining the manner in which it should exercise its discretion as to whether to grant leave, and, when leave has been granted, as to whether to grant one of the discretionary remedies available on judicial review.
The noble and learned Lord, Lord Woolf, and Professor Jeffrey Jowell observe that a sufficient interest,
"has to receive a generous interpretation. It has to be treated as a broad and flexible test … A great variety of factors are capable of qualifying as sufficient interest. They are not confined to property or financial or other legal interests. They can include civic (or community), environmental and cultural interests. The interests can be future or contingent … The gravity of the issue which is the subject of the application is a factor taken into account in determining the outcome of questions of standing. The more serious the issue at stake the less significance will be attached to arguments based on the applicant's alleged lack of standing … In deciding what, if any remedy to grant as a matter of discretion, the Court will take into account the extent of the applicant's interest. At this stage different remedies may require a different involvement by the applicant".
These fair, rational and well-modulated principles have worked well in practice. The test of sufficient interest, coupled with the requirement to obtain leave to apply for judicial review, and the courts' other discretionary powers provide sufficient safeguards against any abuse of judicial review by vexatious or interfering busybodies or bodies seeking an actio popularis.
Our courts have wisely interpreted the test of sufficient interest to allow public interest groups, such as the Child Poverty Action Group, the Joint Council for the Welfare of Immigrants, the Equal Opportunities Commission, or trade unions to bring cases in their own name on behalf of a class of people who are directly affected by laws and regulations. This has the advantage of enabling all the relevant matters at issue to be determined together and at an early stage in order to

825
clarify whether there has been a misuse of public powers, including an abuse involving a violation of human rights.
I am not aware of any instances of abuse that would justify excluding such public interest proceedings in human rights cases, and I should be grateful if the noble and learned Lord the Lord Chancellor would give any such examples of abuse in his reply.
Both the Law Commission for England and Wales in its report on judicial review and the noble and learned Lord, Lord Woolf, in his report on Access to Justice welcomed this development of public interest cases, as did the Labour Party's consultation paper Bringing Rights Home. I am disappointed that the noble and learned Lord the Lord Chancellor and his colleagues apparently do not do so.
If the Government continue to refuse to establish a human rights commissioner, the subject matter of the next debate, it will be all the more important to ensure that public interest organisations have sufficient standing to pursue challenges to the legality, the fairness or the rationality and proportionality of administrative decisions interfering with convention rights. Under Clause 7 they will not be able to do so unless they can find a John Doe or a Richard Roe to stand as a token victim in the case.
Thus far I have concentrated on the just, reasonable and workable nature of the sufficient interest test, as it has been developed by our courts. I now turn to consider the other side of the coin: the complex and obscure position that will be created if the European convention test of "victim" is imported for cases under Clause 7 of the Bill, but not for other judicial review proceedings. It will then become necessary for our courts to have regard not to our well tried and tested case law on the sufficient interest test, but to a complex body of Strasbourg case law developed for the quite different purpose of interpreting a provision of the convention that will disappear next year when Protocol 11 brings the new court into existence with new procedures.
Article 25 of the present convention as it stands empowers the European Commission of Human Rights to receive petitions from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation of convention rights. Article 34 of the convention as amended by the 1 1 th protocol will come into force next year with a similar victim test for applications to the European Court after the Commission has been abolished. The new European Court will presumably interpret Article 34 in the light of the large and complex body of case law developed by the existing Commission and Court under Article 25.
The Bill deliberately excludes the procedural rules of the European Court of Human Rights which allow third party interventions by bodies such as the Post Office Engineering Union (in Malone), or MIND (in Ashingdane), or the International Press Institute (in Lingens), or Justice (in Monnell v. Morris), or Amnesty International (in the Soering case), or the Northern Ireland Standing Advisory Commission for Human Rights, Liberty, and the Committee on the
826
Administration of Justice (in Brannigan and McBride), or the Society for the Protection of Unborn Children (in Open Door and Dublin Well Woman).
It is well established that a public authority such as the EOC has no standing to bring a case as a victim under the convention. What that means is that the EOC, the CRE, the Fair Employment Commission for Northern Ireland or the Official Solicitor will be prevented by Clause 7 from intervening as an amicus curiae, or third party, to represent the wider public interest if they seek to rely on convention rights in any legal proceedings. For example, I was instructed by the EOC many years ago to perform that amicus role in a case called Nasse v. Science Research Council, a case where applicants were seeking discovery of employers' confidential documents for the purpose of proving discrimination cases. I relied before the House of Lords on Article 6 of the convention representing not the individual but the EOC in the wider public interest. Clause 7(1) would now prevent that because the EOC is not a victim. How, I ask myself, can that possibly be in the interests of justice, including the proper interpretation and application of the convention?
The absurdity of that anomaly is highlighted by the fact that, under Clause 5, the Bill gives the Crown the right to intervene where a court is considering whether to make a declaration of incompatibility. Yet other public authorities or public interest organisations are to have no such right of third party intervention. I do not see any justification for placing the Government in that uniquely privileged procedural position, depriving the courts of the benefit of other third party interventions. I am not aware that any other European or Commonwealth country has adopted such a narrowly exclusive rule, giving a right to intervene to the Crown and to no other person or body. As I said, such an approach is also not consistent with the rules of the European Court of Human Rights, which allow third party interventions.
Nor does the matter end there. The existing Strasbourg case law on what constitutes a "victim" is, to say the least, not entirely satisfactory. I do not understand why the Government consider that it is better for our courts to have slavishly to adopt that European case law rather than using the well-understood English statutory test of "sufficient interest".
Harris, O'Boyle and Warbrick give examples of the case law in their authoritative textbook on the law of the convention (at page 633). In the case of Open Door and Dublin Well Women v. Ireland, which concerned an Irish Supreme Court injunction against the provision of information by the applicant companies concerning abortion facilities outside Ireland, the European Commission and the Court considered that women of child-bearing age could claim to be victims since they belonged to a class of women which might be adversely affected by the restriction. On the other hand, in the case of Leigh, Guardian Newspapers Ltd. and Observer Ltd. v. United Kingdom, the applicants complained of the impact of the majority House of Lords decision in Harriet Harman's case, finding her guilty of contempt of court as a solicitor for allowing the journalist, David Leigh, to inspect confidential documents even though

827
they had been read out in open court. I had the privilege of acting on their behalf and on behalf of Harriet Harman. They claimed that it breached their right to free expression under Article 10. The commission ruled that David Leigh could complain, but not the newspaper companies. As a result, the important issue of access to information by the press was excluded from the case. I doubt whether an English court would have reached such a narrowly restrictive conclusion.
To take another example, in Times Newspapers Ltd. v. United Kingdom, the commission ruled that the newspaper could not claim to be a victim of a breach of free speech under Article 10 in complaining of the unpredictability of jury damages awards in libel cases, because it had not shown that its newspapers had been inhibited from imparting information. An English court might well have reached the same conclusion in that particular case.
However, Harris, O'Boyle and Warbrick rightly observe in their textbook that these decisions demonstrate the elasticity of the notion of victim in the Commission's case law as well as the uncertain and shifting boundaries between those directly affected by a particular measure and those remotely affected by it. They also point out that, in view of the development of a concept of indirect victim, the different categories of victimhood often shade into one another. So the Strasbourg case law is not entirely consistent or predictable.
I am indebted to Justice, of whose executive and council I am proud to be a member, and to Liberty, of which I am a long-standing member, for a briefing paper prepared by Peter Duffy QC and Rabinder Singh, two very able and experienced public law advocates℄
Lord Campbell of Alloway: Will the noble Lord give way? I am much obliged. I have only been in this place for about 18 years, but I have never heard anything like this after dinner. For how long is this going on? The issue is so simple. It has already been explained.
Lord Lester of Herne Hill: If the noble Lord will show his customary patience, I shall shortly come to a conclusion.
The authors point out that enacting Clause 7(3) as it stands risks preventing some human rights cases from being brought that ought to be brought in the public interest. Public interest groups face losing standing to raise convention human rights points in circumstances in which otherwise they would have standing, even over fundamental rights points rooted in the common law.
Enacting Clause 7 as it stands would produce discrepancies over standing to bring judicial review proceedings between: (a) purely domestic law cases; (b) domestic law cases under the Human Rights Act; and (c) domestic law cases under directly effective European Community law with a human rights element.
828
Fifteen years ago in the National Federation of Self Employed case, Lord Diplock observed that it would be,
"a grave lacuna in our system of public law if a pressure group, like the federation, or even a single public-spirited taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped".
But if Clause 7(3) is enacted as it stands, that is what would happen not in ordinary judicial review cases, but where fundamental human rights are at stake. Technical rules, based on the unsatisfactory Strasbourg case law, will be incorporated into English law. It is surely absurd and unworkable to have different tests of standing according to whether the judicial review application is based upon: (i) ordinary common law principles; or (ii) common law principles matching or embodying convention rights; or (iii) directly effective Community law; or (iv) convention rights; or (v) a combination of any of those four grounds. But if Clause 7(3) is enacted as it stands, it will hamper the proper administration of justice, unnecessarily increase the legal costs of judicial review proceedings and create legal uncertainty.
For all those reasons—and I apologise for the length of my remarks—I seek to remove the reference to "victim" at the end of Clause 7(1), together with Clauses 7(3) and 7(4), from the Bill, leaving the issue of standing to the well-established just, reasonable and workable tests of standing used in English public law and Scots judicial review. I very much hope that the Government will think again. I beg to move.
The Deputy Chairman of Committees (Baroness Lockwood): I must point out that if this amendment is agreed to, I cannot, under the pre-emption rule, call Amendments Nos. 47 to 49 inclusive.
Lord Campbell of Alloway: I support the amendment. I protest against this sheer abuse of this House—at having to listen to these esoteric lectures on law at this hour of night. The issue is totally simple. Our own procedure will safeguard everything that is put in the words of the Bill—"the victim". It is preferable, for the reasons given, to have this amendment than to use the term "the victim". Why we have to be entertained for 20-something minutes with cases from here, there and everywhere totally defeats me, and I protest against it.
Lord Ackner: The wheel has gone full circle. Some 25 years ago I had the privilege of hearing the noble Lord, Lord Lester, as a junior allowed by his leader to address me on Spanish law in a commercial case that lasted 15 weeks. Sitting at the back was his father, listening with admiration, against whom I used to appear in the county court. Now, 25 years on, I have had the privilege of hearing him in the Court of Appeal in the House of Lords in Pepper v. Hart, the Spycatcher case and other cases, and I reach here in 1997 the position of being led by the noble Lord on a very important amendment.

829
I brush to one side what seem to me the offensive observations of the noble Lord, Lord Campbell. A great deal of work has been put into the noble Lord's remarks. It will read very well in Hansard. It sets out in an irresistible way the strength of the amendment that he has mounted and I support it strongly.
Baroness Amos: I shall be very brief as I appear to be losing my voice. The Bill proposes in Clause 7 to adopt the convention test for "victim" as the standing requirement for parties seeking to rely on the convention against a public authority in judicial review proceedings. The White Paper explains that that means that individuals or organisations will need to show that they have been directly affected.
I welcome the fact that one of the key elements of the Bill is establishing a human rights culture and context in the United Kingdom which will ensure that individuals understand their rights and have access to justice. I am therefore disappointed that public interest organisations appear to be excluded from taking cases in their own name even though that has been established by the courts as a legitimate development in the public interest.
I recall during my years at the Equal Opportunities Commission the importance of the commission having standing to take a case. This will be particularly important during the early stages of incorporation, when there will be a need to clarify the law. A case brought by a group can clarify the law for many people, some of whom may not even know of their rights. A well focused case, brought in good time, may also save public money—for example, multiple legal aid costs. In most cases there clearly will be a victim; but I believe it is important that we do not now go backwards and limit the access to the courts of public interest organisations.
9 p.m.
Baroness Kennedy of The Shaws: One of the Bill's great achievements is the way in which it grafts the convention onto the existing legal framework with a bare minimum of changes to the framework itself. While I welcome the adoption of the convention's definition of "victim", there seems to me no reason why that should lead to a modification of any features of the law of judicial review in relation to convention claims. I respectfully suggest that the preferable approach would be to leave untouched the present law concerning what constitutes "a sufficient interest" for the purposes of judicial review and to allow the courts to continue to develop the jurisprudence as to the circumstances when it is in the public interest for a challenge to be heard, even when there is no victim; otherwise in the same case the court will have to refuse to hear a public interest body raising a point about fundamental human rights when it will hear the same body on less fundamental issues.
I give notice that, if the amendment of the noble Lord, Lord Lester, is not accepted, I shall propose at Report stage an alternative amendment leaving in the reference
830
to "victim" but replacing subsection (3) with a new subsection as follows:
"Nothing in subsection (1) shall prevent an applicant from bringing an application for judicial review provided that the court considers that he has a sufficient interest in the matter to which the application relates".
Lord Meston: If the noble Baroness looks at the second Marshalled List she will see that that amendment is already down in my name as Amendment No. 50A. If the matter is to be taken further at Report stage, no doubt we shall have the benefit of supporting each other on it.
The case against enacting Clause 7(3) as presently drafted is compelling; and, if I may say so, in view of the intervention of the noble Lord, Lord Campbell of Alloway, my noble friend's introduction of the amendment was entirely justified considering the importance of the point which he wished to cover. I join my noble friend in paying tribute to the powerful analysis by Peter Duffy QC and Rabinder Singh.
Amendment No. 50A, which the noble Baroness has already read, proposes that it is preferable that the test of standing for all judicial reviews should be that of sufficient interest but at the same time makes clear that in all human rights cases anyone who would be a victim in Strasbourg terms would have a sufficient interest domestically.
Lord Kingsland: I hope that the knowledge that the Opposition Front Bench support the amendment will not deter the noble Lord, Lord Lester, from pursuing it with vigour.
The Lord Chancellor: The noble Lord, Lord Lester, was not deterred by the noble Lord, Lord Campbell of Alloway; nor was the noble and learned Lord, Lord Ackner, deterred by him. The noble Lord, Lord Campbell of Alloway, however, left the Chamber, as far as I could see, in protest at what he regarded as overly extensive legal anecdotage. For myself, I always enjoy listening to both noble Lords and the noble and learned Lord. They do not appear to have given much pleasure to each other this evening. I am disappointed that the noble Lord, Lord Campbell of Alloway, has not waited for the pleasure of listening to me; on the other hand, there might not have been much pleasure in that because I oppose the amendment.
The basic point, the critical issue, can be shortly and easily stated. It is whether the judicial review standing test domestically should apply to convention cases as well rather than the Strasbourg victim test, which is perhaps naturally more appropriate when we are bringing convention rights home. The fact that the two tests are not in accord causes the noble Lord, Lord Lester, uncharacteristically, to be hostile to the European test and to favour our domestic judicial review test.
In opposing Amendment No. 46, I beg leave to speak also to Amendments Nos. 50, 50A, 56 and 56A.
The purpose of the Bill is to give greater effect in our domestic law to the convention rights. It is in keeping with this approach that persons should be able to rely

831
on the convention rights before our domestic courts in precisely the same circumstances as they can rely upon them before the Strasbourg institutions. The wording of Clause 7 therefore reflects the terms of the convention, which stipulates that petitions to the European Commission (or to the European Court once the Eleventh Protocol comes into force) will be ruled inadmissible unless the applicant is the victim of the alleged violation.
I acknowledge that a consequence of that approach is that a narrower test will be applied for bringing applications by judicial review on convention grounds than will continue to apply in applications for judicial review on other grounds. But interest groups will still be able to provide assistance to victims who bring cases under the Bill and to bring cases directly where they themselves are victims of an unlawful act.
I also point out that Clause 7, consistent with the position in Strasbourg, also treats as victims those who are faced with the threat of a public authority proposing to act in a way which would be unlawful under Clause 6(1). So potential victims are included. Interest groups will similarly be able to assist potential victims to bring challenges to action which is threatened before it is actually carried out.
My noble friend, Lord Williams of Mostyn, reminded the House, both at Second Reading and on our first Committee day, that I am committed to implementing measures that will improve access to justice, and that I am giving serious consideration to Sir Peter Middleton's proposal that there should be a separate fund for public interest cases, including those involving convention rights.
I said in my speech to the Law Society's annual conference at Cardiff on 18th October that I believed it right to make special arrangements for cases that raise issues of wider public interest and that I intended to consult about the details. I am planning to issue a consultation paper early next year, but my officials have already begun informal discussions with various interest groups. That will of course include those bodies such as the Public Law Project, Justice, Liberty and the Child Poverty Action Group which regularly support applicants in the courts.
I emphasise to my noble friend Lady Kennedy of The Shaws that Clause 13(2) also makes clear that the Bill does not affect the existing ability of anyone with a sufficient interest to seek judicial review of a decision on non-convention grounds. A judicial review test will continue to apply and is in no way interfered with by the Bill. The sole and narrow point is whether the domestic English judicial review test of standing should apply where an application for judicial review is made on grounds other than convention grounds.
Lord Goodhart: Can the noble and learned Lord the Lord Chancellor say what is the position of a public interest group which, having perfectly properly brought proceedings under Clause 13 of the Bill on grounds
832
which do not involve convention rights, then finds that in those same proceedings it is unable to raise issues of convention rights because of Clause 7?
The Lord Chancellor: I shall come to that in a moment. I do not believe, for reasons I shall explain in a moment, that that consequence will follow.
I focus first on the essential and critical point—that is, whether there should be a victim test in relation to a complaint of an unlawful act on convention grounds. Essentially we believe the victim/potential victim test to be right. If there is unlawful action or if unlawful action is threatened, then there will be victims or potential victims who will complain and who will in practice be supported by interest groups. If there are no victims, the issue is probably academic and the courts should not be troubled.
We are right to mirror the law as Strasbourg applies it. I understand that to be generally accepted by Members of the Committee who have spoken in favour of the amendment. But they depart from that because of a greater affection for the English judicial review test than for the Strasbourg victim test in relation to convention cases.
I propose to complete my explanation and then, with my customary good nature, I shall cheerfully give way. But only after I have made the point fully so that Members of the Committee who wish to invite me to agree that there is a defect in my explanation have had the advantage of hearing the whole and not part of what I am saying.
I turn to the point that has been much made by the noble Lord, Lord Lester, in relation to third party intervention. The European Court of Human Rights rules of procedure allow non-parties such as national and international non-governmental organisations to make written submissions in the form of a brief. There is no reason why any change to primary legislation in this Bill is needed to allow the domestic courts to develop a similar practice in human rights cases, which is the answer to the noble Lord's question on how I would respond to the point that an interest group would have the right to be heard in a judicial review case under the English domestic test but that, if there was not a victim, could the individual interest group be heard on the convention point? So now, in its proper context, I address an answer to that question.
This is a development—that is to say, allowing third parties to intervene and be heard—which has already begun in the higher courts of this country in public law cases. Provisions as to standing are quite different. They determine who can become parties to the proceedings. The standing rule which the Bill proposes in relation to convention cases simpliciter is identical to that operated at Strasbourg; and why not? Is that not right in principle? It would not, however, prevent the acceptance by the courts in this country of non-governmental organisational briefs here any more than it does in Strasbourg.
Your Lordships' House, in its judicial capacity, has recently given leave for non-governmental organisations to intervene and file amicus briefs. It has done that in

833
Queen v. Khan for the benefit of Liberty and it has done that in Queen v. Secretary of State for the Home Department ex parte Venables and Thompson for the benefit of Justice. So it appears to me, as at present advised, that the natural position to take is to adopt the victim test as applied by Strasbourg when complaint is made of a denial of convention rights, recognising that our courts will be ready to permit amicus written briefs from non-governmental organisations; that is to say briefs, but not to treat them as full parties.
9.15 p.m.
Lord Lester of Herne Hill: I am grateful to the Lord Chancellor for giving way. I should like to ask him two questions in order to clarify his helpful and informative speech so far. First, does he agree that one of the disadvantages of the victim test is that it will compel our courts to have to familiarise themselves with a so far unfamiliar and complicated body of case law in Strasbourg, largely developed by the Human Rights Commission, as to what does or does not constitute a direct or indirect victim? Is that not a disadvantage?
Secondly, although he has helpfully indicated his own view that there is nothing in the Bill to prevent third party written interventions—I dare say he would concede oral interventions—will he explain the following point? Clause 7(1)(a) deals with a person who brings proceedings against the authority. I can understand there that he wishes to adopt the victim test. However, Clause 7(1)(b) does not deal with the applicant but anyone who does not bring proceedings and seeks to,
"rely on the Convention right or rights …in any legal proceedings".
Does he agree with me that on its face that would seem to preclude a third party who seeks to rely on the convention—whether it is the EOC for Great Britain, the Official Solicitor instructing an amicus curiae, a trade union, the Child Poverty Action Group, Justice, or Liberty? They are not applicants within Clause 7(1)(a) but within Clause 7(1)(b) they seek to rely on a convention right in legal proceedings; and then we are told in the tailpiece that they can do so only if they are a victim of the unlawful act. Does not that language require an amendment so as to free the third party intervener who wishes to rely on a convention right?
Finally, can the Lord Chancellor please explain why our courts should be in blinkers when the European Court of Human Rights in this context would be unblinkered in being able to deal with the matter?
The Lord Chancellor: I disagree with both the noble Lord's points. First, he says that a disadvantage of the victim test is that this will put the burden on English lawyers and on the English courts of learning about Strasbourg law on victims. The incorporation of the Bill will put a burden on all lawyers and courts to learn a great deal more about Strasbourg jurisprudence. I do not think that there is any particular burden in learning about the victim test that Strasbourg applies, which appears to me to be entirely intelligible and which requires an actual or potential victim and therefore precludes academic cases.
834
Clause 7(1)(b), states:
"A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may—
(b) rely on the Convention right or rights concerned in any legal proceedings"—
to my mind that entails a party—
"but only if he is (or would be) a victim of the unlawful act".
It does not touch a third party who has not ex hypothesi been the victim of the infringement of a convention right. It in no way precludes a third party from making submissions about the implication of convention rights in written briefs if a written brief is invited or accepted by the court, as I believe will happen.
As regards oral interventions by a third party, I dare say that the courts will be equally hospitable to oral interventions provided that they are brief.
Lord Campbell of Alloway: I thank the noble and learned Lord the Lord Chancellor for his masterly exposition of the situation and for the patience with which he has entertained this whole matter. In the light of his explanation I realise that I was wrong to accept this amendment and support it. I am wholly convinced by the clarity of the exposition. I acknowledge an erstwhile opponent with great pleasure.
Lord Mackay of Drumadoon: As a Scots lawyer I intervene with a certain diffidence in this private conversation between my English colleagues. If it be the case, as I believe it is, that the Scottish courts would not entertain third party interveners in civil proceedings in the same way as the English courts might do, is there not a risk that by leaving this matter to the courts to work out the practice, there may develop a different practice in Scotland from that in England when dealing with the same United Kingdom Bill? If it is the objective of the Bill to bring rights home, is it not correct that they should be as fully brought home in one jurisdiction as in another? It may be that that is a matter on which the noble and learned Lord the Lord Chancellor wishes to reflect at further length. I do not understand that the Scottish courts would welcome either written or oral submissions from third party interveners as their English brethren do.
The Lord Chancellor: It is no part of the intention of this Bill to alter the standing rules in relation to judicial review in either England or Scotland. It is no part of the intention of this Bill to impose uniformity on the Scottish courts—that is to say, to be uniform with England and Wales—in relation to the rules of practice of the English courts which I have described in permitting third party interventions by way of a written brief. It is part of the intention of this Bill to import the Strasbourg victim test in relation to complaints based solely on denial of convention rights. That appears to us to be right in principle.
Lord Kingsland: The noble and learned Lord may recall an amendment that I proposed earlier to Clause 2(1). It concerned the extent to which decisions

835
of the European Court of Human Rights would be binding on our own courts. The expression used in Clause 2(1) is that,
"A court or tribunal determining a question which has arisen under this Act in connection with a Convention Right must take into account any—
(a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights".
but not be bound by it.
At the time, the noble and learned Lord spoke about the enriching effect which the decisions of our own courts would have on the substance of the law of the convention. I perfectly understood that argument, although I respectfully disagreed with him. In other words, our own courts are not bound by the decisions of the Strasbourg court on the substance of the law. However, now that we are considering matters of procedure, it seems that the opposite rule applies: whereas we are not bound by the decisions of the European Court of Human Rights on the substance of the law, we appear to be bound by the system of rules of procedure of the European Court. This strikes me—does it not strike the noble and learned Lord?—as being a somewhat unbalanced approach. I put it to the noble and learned Lord that, if anything, he has got it the wrong way round. If we are to demonstrate flexibility, it ought to be in respect of matters of procedure, not in respect of matters of substance.
The Lord Chancellor: The short answer to that is this: I gave the explanations last time of why we preferred in Clause 2(1) "must take into account" rather than "must be bound by". Our courts must be free to develop human rights jurisprudence by taking into account European judgments and decisions, but they must also be free to distinguish them and to move out in new directions in relation to the whole area of human rights law. However, the victim test defines those who can assert—those who have rights to assert—that their convention rights have been denied; that is to say, European jurisprudence confines complainants to victims, and that has been determined in Europe beyond any possibility of recall. We, therefore, follow that position.
Lord Campbell of Alloway: That must be Amendment No. 9, to which the noble Lord, Lord Kingsland, was speaking. That is only a recollection. I support Amendment No. 9 but, with great respect, I do not think that it has any relevance to our situation today. I wholly support the view of the noble and learned Lord the Lord Chancellor on this amendment, but I am afraid that I cannot do so on Amendment No. 9.
Lord Lester of Herne Hill: I am extremely grateful to all noble Lords who have spoken, especially the noble and learned Lord, Lord Ackner, not only for what he said about me personally but because it was he who sponsored me for Silk to Lord Elwyn-Jones, who was then the Lord Chancellor. Therefore, it is all the fault of the noble and learned Lord that I became one of Her
836
Majesty's counsel, allegedly learned in the law. I have always remained indebted to the noble and learned Lord for that.
I am grateful also to the noble Lord, Lord Kingsland. I believe that this is the first time in these debates when our Benches and his—and the Government Back Benches and the Cross Benches—have made common cause. The only noble Lord who has spoken in support of the noble and learned Lord the Lord Chancellor is the doubtful supporter, the noble Lord, Lord Campbell of Alloway—"doubtful" not only because he was not here for part of the debate but, more seriously, because he seems to have changed his mind for reasons that I do not yet follow. I should have mentioned at the outset—
Lord Campbell of Alloway: If the noble Lord will give way, anybody who has any sense can change their mind in relation to a sensible, tight argument. I preferred the argument of the noble and learned Lord to that of the noble Lord. The noble Lord can have no complaint about that.
9.30 p.m.
Lord Lester of Herne Hill: I should have mentioned—it was a discourtesy—that the noble Lord, Lord Alexander of Weedon, wished me to say that he was sorry not to be here this evening. However, he supports these amendments both personally and on behalf of Justice.
I am grateful to the noble and learned Lord the Lord Chancellor for his very full reply. I shall consider carefully what he has said. I hope that he will return the compliment and be willing to consider equally carefully what has been said on all sides of the Chamber in the course of this debate. He is a brilliant Lord Chancellor, but a man of extremely firm views. On this Bill and otherwise I am reminded of the words of Judge Learned Hand speaking in Central Park, New York, on the spirit of liberty just after the war. He said that the spirit of liberty was a spirit that was not too sure that it was right. We hope to be able to convince the Lord Chancellor that perhaps this is one area in which open minds, open doors should apply.
The noble and learned Lord has dealt fully and carefully with my plea for third party interventions; that is, that our courts should be in the same position at least as the European Court of Human Rights—I say that it should be north as well as south of the Border—in being helped by third parties, whether they be public bodies like the EOC or public interest bodies, and that the Crown should not have the sole right of intervention as a third party. Of course, it will not be satisfactory if a different position obtains in different parts of the United Kingdom. We may have to return to that matter.
What the noble and learned Lord has not dealt with are the points that I made about the enormous burdens that will be placed upon the courts when they have different standing principles according to whether it is ordinary judicial review, judicial review with a Community law element and an ECHR element as well or judicial review with a pure ECHR element, and where in the course of litigation the grounds of review alter as

837
the issues become plainer. That will pose grave difficulties not only for the advocates in the case but also the courts. I would be surprised if the noble and learned Lord the Master of the Rolls was not particularly anxious about this. He wished to be here to deal with that practical problem.
We have heard nothing about the mischief about which the Government are concerned. Surely, if the EOC, a trade union, the Joint Council for the Welfare of Immigrants or any other public body with a genuine and sufficient interest in the matter wishes to challenge administrative discretion as being incompatible with the convention, it should be entitled to do so without the artificiality of finding a John Doe as a nominal applicant. I do not understand the mischief that the Government are so anxious to deal with that they wish to import the European test of "victim", devised for a different purpose, rather than use our own domestic standing rules. No answer has been provided to these practical problems which will afflict both judges and counsel in cases in ways that I have suggested; nor has there been any explanation as to the mischief that requires this unique importation of a European rule which, to the best of my knowledge, has never been adopted in any other European country or in any other analogous Commonwealth jurisdiction.
I shall reflect carefully upon what the Lord Chancellor has said. I very much hope that at Report stage there will be some reflection of the debate as a whole so that we can come together united. I believe, as does the noble Baroness, Lady Kennedy of The Shaws—she said this in her remarkable maiden speech last week—that we should try where we can to build on a consensus and not be adversarial. This is an area in which I believe judges and noble Lords generally wish the same standing test to apply in a consistent manner. Having said that, I shall obviously not press the matter this evening and therefore I wish to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Carter: It may be helpful and for the convenience of the Committee if I say that the usual channels have agreed that we shall rise at eleven o'clock or Amendment No. 76, whichever comes first. That shows that I am an incurable optimist, even after eight months as Chief Whip. But we must finish this Bill on Thursday.
Lord Simon of Glaisdale: Why?
Lord Carter: Because, if a fourth day is needed, it will be in the early hours of Friday morning.
Lord Henley: Perhaps I may say a few words in response to that statement by the Government Chief Whip. We shall certainly do our utmost to help the noble Lord in getting as far as we can. I am sure that the noble Lord will have observed that we have moved our amendments quickly and we shall do much the same on Thursday. I certainly do not wish to sit late on Thursday for reasons of my own.
838
However, the noble Lord will accept that this is an extremely important Bill. The noble Lord and I have debated matters late at night on other occasions but whether that is appropriate for the Human Rights Bill is another matter. As I say, we shall give all possible co-operation on Thursday but should we reach a late hour on Thursday, perhaps the noble Lord will give some consideration to allowing us some extra time. It is not as though we have reached the stage at which the noble Lord will find himself next summer when we shall obviously be very short of time. At the moment the Government have quite a lot of time and it would be worth considering, through the usual channels, providing perhaps an extra half day, should that be necessary. As my noble friends have pointed out to me, it is a Bill of constitutional importance.
Lord Carter: I agree that Members of the Committee on the Opposition Front Bench have not exceeded the normal time limits on consideration of their amendments. Equally, the noble Lord will understand my difficulty. We have a programme to get through. We allowed what we thought was plenty of time for this important Bill and we should like, if we possibly can, to finish the Bill on Thursday. The noble Lord would not expect me to give any undertaking regarding further time as that might be an encouragement to your Lordships.
Lord Simon of Glaisdalemoved Amendment No. 47:
Page 4, line 26, after ("only") insert ("(save for the Human Rights Commission established under section (Human Rights Commission) of this Act)").
The noble and learned Lord said: In rising to move this amendment, I express my thanks to the noble Lord the Chip Whip for intervening. I beg to point out that par for the course is 10.30 but we should be thankful for at least small mercies. We are promised that we shall rise at eleven o'clock.
This amendment is a paving amendment, together with Amendment No. 53, for Amendment No. 104 which concerns the establishment of a human rights commission. There is another amendment, Amendment No. 93, dealing with that in the name of the noble Lord, Lord Lester of Herne Hill.
Both amendments are based on a brief and recommendation by all the public interest groups which have taken an interest in this Bill. The amendment in the name of the noble Lord, Lord Lester, is closer to them, although it makes some alterations with which I agree. My own amendment makes considerable alterations. They were prepared in the hope of mollifying my noble and learned friend the Lord Chancellor at a time when I thought he might be mollified.
As I say, the amendments are paving amendments for Amendment No. 104. Amendment No. 93 does not appear to be paved with anything except good intentions, like the road to hell where my noble and learned friend the Lord Chancellor sits clutching his briefs, all of which end with the word "Reject".

839
It would be more agreeable for the Committee were I to leave the main introduction on the subject of the human rights commission, which, as I say, is recommended by all the public interest groups, to the noble Lord, Lord Lester. There is another reason: I was intending to quote a passage from the admirable speech on Second Reading of the noble Baroness, Lady Amos, in which she cogently set out the case for a commission. As she is in her place, it is preferable that she make her own speech rather than that I try to make it for her. With that introduction, I propose to leave it to the noble Lord, Lord Lester. I beg to move.
Lord Lester of Herne Hill: I do not believe that it is correct that I can be as effective an advocate in favour of the amendments as the noble and learned Lord, Lord Simon of Glaisdale, but I shall do my best. I shall speak, in particular, to Amendment No. 93 as part of the grouping, because what we are concerned with is not the particular form of the amendment but the principle itself.
Amendment No. 93 is a modest amendment. It gives the Secretary of State the power, and not the duty, to appoint a human rights commissioner. The commissioner may perform any or all of a number of prescribed functions. But his or her primary role would be to provide assistance, including legal and financial assistance, to persons bringing, or proposing to bring, proceedings under the Human Rights Bill, and of course to assist the courts with the proper interpretation and application of this new and important law.
The costs of the office of the commissioner would be comparatively small. If its functions were confined, as my amendments would confine them, I would expect them not to amount to more than £2 million or £3 million a year for the kind of functions that I have in mind. It is imperative that incorporation of the convention enhances effective access to justice, because incorporation will mean that everyone will have to exhaust his or her domestic remedies all the way to this place if necessary. If the right of access to the courts guaranteed by Article 6 of the convention is to be real and effective and not illusory, litigants must not be deterred unnecessarily by the absence of legal aid in advance or by the risks of having to pay the costs of the other side.
It is important also that the courts are assisted in the way that they have been by the EOC, the CRE and the Fair Employment Commission for Northern Ireland—assisted by properly argued cases by an expert human rights commissioner. The need for effective access to justice in relation to the Human Rights Bill was recognised by the Government in their pre-election manifesto Bringing Rights Home. It was stated that after the passage of the Bill it was important to:
"Provide advice and guidance for those who wish to assert their rights, Institute or support individual or public interest cases based on well-researched, well-founded evidence and arguments, Conduct inquiries into particular issues or legal areas, Monitor the operation of the Act, Scrutinise new legislation, Ensure the conformity of EU law with human rights obligations under international treaties".
840
It was envisaged that one way forward would be for the Bill to establish a human rights commission or commissioner to take on some or all of the roles described. I recognise that part of those functions would be performed by a parliamentary Select Committee on human rights in relation to the holding of some inquiries and other matters, not in terms of effective access to justice.
The possibility of a human rights commission or commissioner was also raised in the Joint Labour and Liberal Democrat Consultative Committee on Constitutional Reform. It was there agreed that a human rights commission or commissioner would provide advice and assistance to those seeking the protection of the rights enshrined in the convention and be itself able to bring proceedings to secure effective compliance with the ECHR, whether by judicial review or by representative proceedings on behalf of a number of people. There was an addendum to that report, initialled as I recall by the present Home Secretary and myself, which explained that there should be a human rights commission or commissioner, or similar public body, providing advice and assistance and being able itself to bring proceedings to secure effective compliance with the convention whether by way of judicial review or by representative proceedings on behalf of a number of people.
By my amendment, I merely seek to provide the means whereby those pre-election agreements and the views expressed by a wide variety of public interest bodies can be implemented at some time in the reasonably near future. The amendment envisages a very modestly funded public authority with carefully defined powers to give advice and assistance and bring proceedings in its own name. I am encouraged by the fact that the Government have not closed their minds to the idea of a human rights commissioner or commission. I am also encouraged by the comments made by the noble and learned Lord the Lord Chancellor in his important address to the Solicitors' Annual Conference in Cardiff on 18th October when he observed that the civil justice system,
"should be accessible for everyone—not just the very poor and the very rich".
The noble and learned Lord the Lord Chancellor also acknowledged that there are cases where the predicted cost would be disproportionate to the likely benefit to the individual,
"but where it is plainly in the public interest for a particular point of law to be examined, or for a precedent to be established … it would be right to make special arrangements for these cases".
Even in the absence of a human rights commission or commissioner, it would be very welcome if the Government were to adopt the recommendation of the noble and learned Lord, Lord Woolf, regarding legal issues of public importance where the courts should have a discretion to order that such costs be paid out of public funds or to order at the leave stage that an unsuccessful applicant will not have to pay the respondent's costs where the court is satisfied that the proceedings have been brought in the public interest.

841
The key question here is whether the Government are to provide the means to enable effective access to justice to be provided—and I recognise that there may be some kind of special fund which would go some way towards fulfilling that need—and whether there is to be an expert body able to marshall the arguments and the evidence and have authority before the courts in enabling test cases to be properly mounted and argued.
The establishment of a commission or commissioner of the kind suggested has the support of a wide range of human rights and professional organisations, including the Bar Council, Liberty, Justice, the Institute for Public Policy Research, Charter 88, the Data Protection Registrar, the Commission for Racial Equality, the Children Rights Office, and so on. Indeed, the list is long. There are only two arguments that come to my mind against the creation of such a commission. The first is public expense. I have already indicated that I would regard the body that I have in mind as not having access to very large public funds. Secondly, there is the argument that we should wait until we look at the enforcement agencies under the existing anti-discrimination legislation in order to see what should be done about them.
I have been careful in my amendment not in any way to deal with that wider question. It seems to me that it is a wholly separate issue. We certainly need to reform the enforcement of our anti-discrimination legislation. We need to harmonise and make more effective the enforcement procedures under those statutes. Professor B.A. Hepple, myself and other lawyers have prepared papers dealing with that question. But this commissioner is not to have any functions which might involve the Commission for Racial Equality, the Equal Opportunities Commission or the Fair Employment Commission. That is why I have deliberately kept the function narrow.
The amendment in the name of the noble and learned Lord, Lord Simon of Glaisdale, is wider. I certainly support that as an equally powerful model to be put forward. I have not addressed questions about public education or research. I know that my noble friend Lady Williams of Crosby wishes to address that wider issue. I am focusing on effective access to justice and helping the courts and tribunals. I suggest that it is as important to have this commissioner as it is to spend money on training for which there are to be ample funds available under the auspices of the Judicial Studies Board. It is vital that there be an authority, a public interest body able to assist in that way.
Lord Renton: I have to say that I am very worried about the prospect of a human rights commissioner as set out in either of these amendments, more especially, if I may say so with deep respect, in the amendment in the name of the noble Lord, Lord Lester, because it appears there that the commissioner's duties will be mandatory and have to apply in every case. If we look at the wording carefully he is,
"to perform any or all of the following functions".
They are not optional. Later in the amendment he is invited to consider whether the proceedings,
"raise a question of principle of general public importance".
842
There could be conflict there with the views of a court before which the proceedings eventually come.
The amendment of the noble and learned Lord, Lord Simon of Glaisdale, does not have that defect. It uses the words "where necessary" and that makes it rather less obligatory, but I do not know who will decide whether it is necessary or not.
In any event, as the Government made quite clear on the last but one page of their White Paper, there are various bodies in this country already which have responsibilities for protecting human rights. It seems to me to be overdoing it to give the commissioner the sort of powers that are proposed as well as those bodies having them. I refer in particular to paragraph 3.9 of the White Paper which refers to the impact—that is the impact of a commissioner␁
"on existing bodies concerned with particular aspects of human rights, such as the Commission for Racial Equality and the Equal Opportunities Commission … and … Disability Rights Commission".
What worries me rather is that if we have the kind of jurisdiction asserted under either of these amendments given to a human rights commissioner, it will not only make the procedure for getting justice done before our courts terribly elaborate but it will actually cause delay. That, I think, is something that we should avoid. Therefore I hope that my noble friends on the Opposition Front Bench will not support either of these amendments and I hope that the Government will give good reasons for not doing so.
Baroness Williams of Crosby: In rising to support my noble friend Lord Lester and to agree with the noble Lord, Lord Renton, I should like to advance some non-lawyers' arguments for a human rights commission in the hope that I can persuade the noble and learned Lord the Lord Chancellor and his colleague the noble Lord, Lord Williams of Mostyn, to consider again the position that they have now adopted. It is in some contrast to the position that we understood they supported at an earlier stage. However, I fully recognise that they have made it an open possibility that they may return to the issue at a later stage. In supporting my noble friend I seek to persuade them to do so.
First, I believe that the Bill could bring about a significant transformation and modernisation of the British constitution. My profound concern is that, because at present it fails to include within its orbit a proposal for a human rights commissioner or commission, however modest in its original manifestation, I believe that the Government may lose much of the thrust and purpose of the Bill. I trust that my remarks will not be so lengthy as to tire the noble Lord, Lord Campbell of Alloway. I note that he has left the Chamber.
As the noble Lord, Lord Renton, said, we are looking at a picture of fragmented and in many ways disassociated organisations, each looking after some aspect of human rights, each one thrust into the picture by the pressures of the constituency that it serves. As the noble Lord, Lord Renton, said, we have had an Equal Opportunities Commission concerned with the rights of women. It was created after the period in which the

843
women's movement grew to power and influence and began to press for such equal opportunities. We have a Commission for Racial Equality. Again it flowed from changes in our society, so that we became gradually a multicultural and multiracial society instead of the relatively homogeneous society that we had been before. We have a data protection commissioner, the result of the technological revolution of electronic saving of information. We have a human rights commission, or in effect a similar body, concerned with Northern Ireland. That flowed directly from seeking to deal with the extreme differences and mutual strains between the communities in that Province. I suspect that we shall soon have a human rights commissioner for Scotland and a human rights commissioner for Wales who may or may not be paid for by the budgets of the parliament and assembly shortly to be established.
However, what we are looking at is an extraordinarily uncoordinated structure of concern for human rights, with wide gaps between the organisations that currently exist. Those gaps may in part be filled by the Bill but they will not be satisfactorily filled if there is no provision for a human rights commissioner or commission. There is no overarching theme. There is no common culture of freedom to be found in this picture. I fear that we may lose a great opportunity created by the Bill—I pay due credit to the Government and to the Lord Chancellor—because of our unwillingness to take the final step. It reminds me of the famous poem about the battle of Bosworth Field:
"For want of a nail, the shoe was lost;
For want of a shoe the horse was lost;
For want of a horse the rider was lost;
or want of a rider the battle was lost;
And for want of a battle the kingdom was lost".
I commend that verse by Benjamin Franklin to the Government Front Bench.
Let me briefly explain, "For want of a nail". In his stirring speech at Second Reading the noble Lord, Lord Williams of Mostyn, said (at col. 1308 of the Official Report on 3rd November 1997):
"Every public authority will know that its behaviour, its structures, its conclusions and its executive actions will be subject to this culture",
the culture of human rights. The difficulty is—and I believe that it has been exemplified in this debate—that most public authorities have little understanding of the meaning of the Bill.
Indeed, let me say with due humility that those of us who are not trained lawyers have, time and again, repeated our inability fully to understand the terms of this debate. If that is true of us, who have the great privilege of sitting in this House alongside some of the most distinguished lawyers in the land—not excluding the noble and learned Lord the Lord Chancellor and his noble friend Lord Williams of Mostyn—how much truer it is of the scores of public bodies with which the Bill will deal and interact. I fear that, for failure to train them in what the Bill means, we shall see a great deal of litigation that is unnecessary, expensive, slow, tedious and repetitive.
844
One of the most important changes that a human rights commission could bring about would be a gradual extension of the culture of human rights, to which the noble and learned Lord the Lord Chancellor referred stirringly in his speech to University College, London, last July, when he spoke about it as "a driving force". He was absolutely right.
I fear that what we may see instead—and I should profoundly regret it, because I believe the Bill to be of the greatest importance—is a piece of legislation that comes to be seen as a lawyers' inside world, a world which excludes those who are not lawyers and, above all, those who are not sufficiently advantaged in their education even to think of understanding the strange professional aberrations of the law.
Therefore, my first point is that I believe the training and education of public bodies is just as important as the establishment of case law. The second point is that, in establishing education and training of public agencies, Her Majesty's Government could save themselves a great deal of money.
Perhaps I may draw a quick analogy. In areas such as industrial safety, we see safety officers established by companies and paid for by companies—in other words, they themselves in a sense own safety legislation and make themselves responsible for it. In the same way. we see increasingly the establishment of, for example, people who own human rights in other countries where human rights are long established. It is striking that in virtually every significant Commonwealth country—from India, with its millions of people and its relatively poor economy, to Canada—in every single case there is a clear responsibility for the education of the people. Indeed, the marvellous phrase used in Indian human rights law is that they must address "illiteracy in human rights". Australia, Canada and New Zealand all have a major function of education. Countries both richer and poorer than ours find that to be of the greatest possible importance.
One other thought about education is that we need to educate children in our schools in the culture not only of rights but of responsibilities. The two go side by side. There is little understanding of what it is to be a British citizen. If we are to move towards a genuine rather than a deferential democracy, our citizens need to have that understanding as a profound first principle.
Thirdly, we live in a profoundly changing society. That is why we need human rights laws. We live in a society that is becoming multi-racial and multi-cultural. We have to protect the rights of all in our society, including many who expect little respect for their position. We live in a society that is increasingly demanding the right to participate—for the characteristic of modern democracies is that their citizens want increasingly to participate. However, if they do not understand that responsibilities go with rights, their participation will be only the beginning of a new disappointment.
We live in a society which is becoming increasingly subject to international norms in areas like the environment, refugees and the protection of the rights of children. A human rights commission would be in a

845
position to make us much more aware of those international norms. If one looks at the extraordinary cost of the tribunal of inquiry into what happened in Clwyd, one can see that it will cost a great deal more to get across the consequences of forgetting the rights of children than to establish a consciousness of the rights of children to begin with.
Finally, the major arguments against a human rights commissioner or commission—I carefully put forward both alternatives for reasons of public expense—are, first, public expense itself. Having been a Minister, I have to say that it is never impossible to find a couple of million pounds. I believe that the preventive effect of paying that money would be more than repaid by the savings I have described already. I would go into detail if the House were not sitting so late in Committee. I shall not attempt to do so but I should be happy to indicate some ways in which I believe this money could be relatively easily found.
Secondly, the argument is that the Equal Opportunities Commission and the Commission for Racial Equality might be in difficulties in their relationship to such a new body. I find that argument unconvincing. They would begin to establish increasingly close working relationships one with the other. In any case, the chairman of the Commission for Racial Equality has made it plain that he believes that it would be right to have a human rights commission and the noble Baroness, Lady Amos, has made it clear that she, as a former chief executive of the Equal Opportunities Commission, believes that a human rights commission or commissioner would be extremely helpful, rather than a negative force, in relation to the Equal Opportunities Commission.
I conclude with this thought. The noble Lord the Lord Chancellor indicated that there would be a joint committee of Parliament. He indicated that the Government are or could be—it is a matter for Parliament, I understand—responsive to such an idea. I believe that it is an excellent proposal. However, I recognise that, if a joint committee of Parliament is to do an effective job in the way that, for example, the European Communities Committee does in both Houses in a rather similar scrutiny exercise—also one of great complexity—considerable sums of money will need to be spent on the expert resources to make it effective. Whether that secretariat is found in clerks within this House and the other place or in a human rights commission, it will involve additional expenditure. I suggest that the great advantage of a human rights commission or commissioner is that it would make human rights open to the public, it would encourage the public to own human rights in a way which would not be exclusive either to Parliament or to the legal profession but should be the beginning of a real and profound change in the democratic ethos and sense of freedom in this country.
Baroness Amos: My support for the creation of a human rights body is well known. Indeed, I made my maiden speech on this subject, so I shall be brief.
846
We currently lack any systematic monitoring, enforcement or promotion of human rights in the United Kingdom. We have bodies such as the Equal Opportunities Commission and the Committee for Racial Equality which have some responsibility for the protection of certain human rights, but their coverage is partial. We need a body which will raise public awareness, promote good practice, scrutinise legislation, monitor policy developments and their impact, provide independent advice to Parliament and advise those who feel that their rights have been infringed.
I am particularly keen to see the promotion of an inclusive human rights culture which builds on the diversity of British society. That would be a key role for any human rights body to play. I hope that my noble and learned friend the Lord Chancellor will make a commitment to the Government leading a consultation process on the options with respect to the creation of a human rights commission.
Lord Simon of Glaisdale: I am grateful to all Members of the Committee who have spoken on this amendment.
Lord Goodhart: Perhaps the noble and learned Lord will allow me to intervene. I rise to support my noble friend Lord Lester of Herne Hill, with whom I have long been associated on the council and executive committee of Justice. I very much regret that on this occasion I must disagree with the noble Lord, Lord Renton, with whom I am in almost complete agreement on most other aspects of the Bill.
Let me put my argument in simple and practical terms. If there is no human rights commission or human rights commissioner, what is to happen to the lay person who believes that his or her convention rights have been breached? They can go to their local citizen's advice bureau, but are unlikely to find anybody there who is sufficiently specialised to be able to give sensible advice. They may go to their local law centre, in the unlikely event that they can find one that operates in their area. They may go to a solicitor, but that will cost money for a totally uncertain future and they will not be able to obtain legal aid.
It would be an enormous help if such a person could go to the human rights commission or commissioner for advice as to their convention rights. And what if they have a serious case for breach of convention rights? It may be that they could agree with a solicitor or barrister a conditional fee agreement. But, in practice, that will not be practicable. Conditional fee agreements work in personal injury cases, but it is extremely unlikely that they can or will work in human rights cases. It would therefore be an enormous help if the victim could go to the human rights commission or commissioner for support in bringing the case before the court or tribunal which can give relief.
I know that problems arise in creating a human rights commission. Should it be a freestanding commission or an umbrella body including underneath it the EOC and CRE? But that is a matter of detail. I know that Rights Brought Home—the White Paper—does not rule out the

847
possibility of a human rights commission. But that is not good enough. A Human Rights Bill without a human rights commission is only half doing the job.
If the Government accept a commitment to a human rights commission, I see no problem in including it in another Bill rather than this one. But, if the Government will not accept a commitment to a human rights commission in principle, that refusal needs to be tested in the debate on this Bill.
Baroness Lockwood: I hope the amendments tonight will be regarded as probing amendments. The principles embodied in them are extremely important and need to be looked at in some detail. I support the concept of an equal rights commission in some form, whether it be limited to this Bill and the areas covered by it or whether it is to be a wider commission embracing the other areas that have already been mentioned, such as sex discrimination, race discrimination and, I hope, discrimination on grounds of disability.
However, I think there are two principles that we need to consider. The first is the importance of giving responsibility to a body to administer and help to enforce the Human Rights Bill. I say that as the first chairman of the Equal Opportunities Commission, which had the responsibility of administering and enforcing the Sex Discrimination Act 1975. I am very conscious of the important role which that body had in a number of ways in helping individuals to establish their own rights under the law; equally, and perhaps even more importantly, in testing the various sections of the Act so that potential applicants under the Act would be more aware of their own position and of what were their rights; and, just as importantly, in ensuring that those who might inadvertently or advertently contravene the Act would be made aware of the consequences of so doing. In other words, the commission helped to codify the Act by carefully selecting key cases to support and thereby establishing very important case law which was used widely both by individuals and organisations. I do not share the doubts of the noble Lord, Lord Renton, in this respect. I think it is important to have a single body with some responsibility.
That brings me to the second principle, about which the noble Baroness, Lady Williams, spoke, of having a commission which would embrace all human rights and take over the responsibilities of the existing commissions. There is a great deal to be said for that and I think we should give consideration to the noble Baroness's point. I think, too, that we need to consult the existing commissions. Although there is an overlap of responsibilities, they have certain expertise in their own areas which we would not want to lose in a new all-embracing commission. So I feel that there is still a great deal to be discussed in this whole area.
I should like to suggest to my noble and learned friend the Lord Chancellor that it would be helpful if he would give his agreement to the principle of having a human rights commission and then for us to have a consultative document on how best that might be achieved so as to maximise the full impact of the new
848
Bill and at the same time to ensure that we do not lose out on any of the existing legislation and the work that the respective commissions are doing.
10.15 p.m.
Lord Henley: Perhaps I may briefly give the views of this Front Bench before the noble and learned Lord the Lord Chancellor comes to sum up, which I imagine he wishes to do before the noble and learned Lord, Lord Simon, does whatever he intends to do with his amendment.
Perhaps I may say to my noble friend Lord Renton that I am in considerable agreement with him that we have doubts about the value of setting up a human rights commission or commissioner. I looked carefully at the arguments put forward by the Government in their White Paper. In paragraph 3.9, they state:
"Moreover, the idea of setting up a new human rights body is not universally acclaimed.
Well, I can say "Hear, hear" to that. It is not universally acclaimed. It does not have all-party support or universal support, despite the weight of some of the speeches made to the Committee.
Further, I believe that it was right for the Government to go on to make it clear that more consideration needs to be given as to how a commission would work in relation to the other bodies and to the new arrangements to be established for parliamentary and government scrutiny of human rights issues. Before we set up such a body, it is important that we consider carefully its relationship with the existing Equal Opportunities Commission, with the Commission for Racial Equality and with the Northern Ireland board, whose name I temporarily forget. It should be considered whether those bodies should continue to exist should such a new body come into being.
The third and most telling argument of all is in paragraph 3.10 of the White Paper which states that it is important,
"to justify the additional public expenditure needed to establish and run a new commission.
I have heard Members of the Committee say that it is only £2 million here or there, and what is that between friends. The noble Baroness, Lady Williams, said that anyone in government can always find £2 million. But it is not always that easy. I am pretty cynical about her arguments when she puts forward the idea that money will be saved. I have heard the argument on many occasions that by spending a little here it will save much more money there. I would wish to see considerable evidence before I accepted such arguments. I await with interest to hear what the Government have to say. But for those reasons we on these Benches could not support the idea of a human rights commissioner or a human rights commission.
Lord Williams of Mostyn: Perhaps I may give the response of the Government—
Lord Simon of Glaisdale: I believe that I am entitled now to make my speech in support of the amendment.

849
I hope that I am not interrupting anybody else, except, I am afraid, the noble Lord, Lord Williams of Mostyn, whom I trust will forgive me.
I am most grateful to all those Members of the Committee who have supported the idea of a human rights commission. There is now overwhelming authoritative opinion in favour of it. Of all the interest groups, naturally I attach particular importance to Justice. But they are unanimous that we need a human rights commission. A parliamentary joint or separate committee might be a useful adjunct, but it would be no substitute.
There are two aspects that particularly attract me in addition to the arguments which have been so forcefully and movingly put today. The first is the one that appealed to the noble Baroness, Lady Williams, and to the two noble Baronesses who have spoken on the government side, namely, that it would be possible to subsume the other bodies such as the racial equality body and the equal opportunities body into a human rights commission. That may well provide substantial economies which would offset any additional expense. Naturally that appeals to me very much.
The second aspect is that the proposition seems to fit in very well with the thinking of my noble and learned friend the Lord Chancellor about how to deal with legal aid. I know that there are amendments about that, but I hope that they will not be dealt with tonight. We could take up the idea of my noble and learned friend of a special interest fund and allocate part of it to the human rights commission. That would fit in very well with what we heard of his thinking in his speech at Cardiff and in the speech at Second Reading made by the noble Lord, Lord Williams of Mostyn.
For all those reasons, I would very much like to press—although not to a Division—the proposal of a human rights commission. I am not wedded to the words of my amendment, nor to those of the noble Lord, Lord Lester. I would be fully content if my noble and learned friend the Lord Chancellor were to accept the idea in principle and discuss the details further. In the meantime, I beg to move.
Lord Williams of Mostyn: There have been a number of speeches on this important topic so perhaps I may trespass on your Lordships' patience for a little longer than I usually do. Perhaps I may draw the threads together. Amendments Nos. 43, 47 and 49 are linked to the new amendment which has been tabled before Clause 20—I refer to Amendment No. 101 and to the amendment tabled after Clause 3, which is Amendment No. 93.
I want to make the Government's position perfectly plain, as I tried to do at Second Reading. I turn to the White Paper, which states:
"The Government's priority is implementation of its Manifesto commitment to give further effect to the Convention rights in domestic law so that people can enforce those rights in United Kingdom courts … the Government has not closed its mind to the idea of a new Human Rights Commission at some stage in the future in the light of practical experience of the working of the new legislation".
850
We believe that to be a sensible way forward. I do not resile for a moment from what I said at Second Reading, which the noble Baroness, Lady Williams of Crosby, was kind enough to cite. I believe that there will be a change in the culture of organisations in this country. That change in culture will be dictated by the passage of this legislation, but it will not require a human rights commission. I would find it difficult to imagine that a large organisation—for instance, a government department or a large commercial organisation—will not have its own internal structures to ensure that its practices are in accordance with new duties.
The noble Baroness referred to changing times and the democratic ethos. I entirely agree. One of the criticisms that is often made of another place is that it is not sufficiently astute to use its own powers. Many would say that the committee structure in another place perhaps needs a transfusion of life and activity. As I said earlier, with the specific authority of the Lord Chancellor and my right honourable friend the Home Secretary, we will look on the matter favourably as a government if another place wishes to set up a parliamentary committee on human rights.
For a very long time now, some would say, another place has been somewhat slow in using the full power which the committee system may offer. If another place wished to have a parliamentary committee on human rights, we would expect it to involve the educative function, the dissemination of information to the public and the taking of evidence, including, as the Lord Chancellor specifically said at Second Reading, the taking of evidence all over our country, and not only in London. That is a reflection of the democratic ethos in a society that we believe is changing and ought to change.
We do not wish to bully through a human rights commission without the fullest consultation with the Equal Opportunities Commission and the Commission for Racial Equality, to name but two. I pay tribute, as we all do, to the noble Baroness, Lady Lockwood, who has great experience of the EOC. When she cautions us and says that the principle may be appropriate but that we need the most careful, intricate and informed consultation with those bodies, I respectfully believe her to be right.
As we said in Rights Brought Home, we have not ruled out the idea of a commission for the future. I agree with what the noble Lord, Lord Henley, said about the expression, "£2 million or £3 million being neither here nor there". I know that he will tell me that such sums do not go very far these days—they may not—but they represent vast amounts of money in stringent financial times.
We believe that the right way forward is the one that has been proposed and that we should do our best to get the best possible Bill. If there is to be a parliamentary committee, single or joint, we welcome its involvement in scrutiny first should there be a human rights commission. Secondly, it is very important that we get the nuts and bolts and practicalities right after taking evidence and approaching the matter with care. The constitution and nature of a human rights commission, if there is to be one, is very important. It is extremely important that we get it right first time.

851
We are not ruling out the idea of a human rights commission. We believe that we should have the best possible material available before we decide, first, whether to have one and, secondly, what its terms of reference and proper parameters should be. On that basis, I respectfully ask that noble Lords who have moved this amendment withdraw it.
10.30 p.m.
Lord Simon of Glaisdale: I do not know whether it is for me or the noble Lord, Lord Lester, to reply. I fancy it is for me. I do so by thanking the noble Lord, Lord Williams of Mostyn, and other noble Lords who supported this amendment for their contributions. I repeat that informed opinion is now overwhelmingly in favour of a human rights commission. A parliamentary committee, admirable though it may be, is no substitute. One need look only at the terms of Amendment Nos.93 and 104 to see that the functions recommended are entirely different from those which would concern a parliamentary committee. The two are complementary. I certainly do not discourage the Government from consulting further and wider, except I should like to see them get on with it pretty fast.
I undertook not to press my amendment to a Division. Therefore, I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 48 and 49 not moved.]
Lord Lester of Herne Hillhad given notice of his intention to move Amendment No.50:
Page 4, line 30, leave out subsections (3) and (4).
The noble Lord said: Perhaps I may express my great gratitude to all who have spoken, particularly the non-lawyers. Not only are they specially qualified by their lack of legal qualifications but they are specially qualified in this debate. I pay great tribute to the noble Baroness, Lady Lockwood. I have known her ever since we both gave evidence to the Select Committee on sex discrimination on behalf of the Labour Party. We have known each other since she became the first and most distinguished chairwoman of the Equal Opportunities Commission in 1976. Her role and that of the commission illustrate why one needs a commission at the outset of new legislation, not after the legislation has been tried and tested. She has had a remarkable role in the labour movement and on behalf of women's rights. I pay great tribute to her. We should listen with particular care to what she has to say. The same applies to the noble Baroness, Lady Amos, who has had enormous experience both of the EOC and in protecting the rights of ethnic minorities. I also mention my noble friend Lady Williams of Crosby who I can well remember in the Labour Party, and beyond, fighting this particular case.
I have listened carefully to the arguments of the Minister. I understand and welcome what he says about a parliamentary human rights committee; but that is no substitute for the functions that we have been describing this evening. I ask the Minister and his colleagues to reconsider whether the doctrine of the unripe time—
852
a favourite doctrine of conservatives, whether they are Liberal, Labour or Tory, throughout the ages—is really one upon which he and his colleagues wish to stand.
If we had heard this morning about the plans of the noble and learned Lord the Lord Chancellor for a special fund for its administration, criteria and use, I should feel slightly more comforted. My position and that of my colleagues is that we have probed this evening but we shall surely return to it on Report. I very much hope by that stage there can be a wider consensus on the matter. Therefore, I shall not proceed with the amendment.
[Amendment No. 50 not moved.]
[Amendments Nos. 50A to 54 not moved.]
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 55:
Page 4, line 35, leave out second ("the unlawful") and insert ("that").
The noble Lord said: This is a modest drafting amendment. Clause 7(4) refers twice to "the unlawful act" of a public authority. The effect of this amendment is that on the second occasion, the style would be improved and the sentence more graceful if the words simply read "that act". I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 56 and 56A not moved.]
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 57:
Page 5, line 4, leave out ("Secretary of State") and insert ("Lord President or Lord Justice General").
The noble and learned Lord said: This amendment was tabled, I regret to say, I suspect, having misconstrued the provisions of Clause 7(8). I am grateful to the noble and learned Lord the Lord Advocate for pointing out to me informally where I may have been in error. I am confirmed that I am in error by the provisions of Amendment No. 105, which we shall no doubt reach in the fullness of time.
It may be helpful to those in Scotland who are interested in this matter if the noble and learned Lord the Lord Advocate would confirm that the rules which are referred to in subsection (8) are limited to rules in terms of which the Secretary of State would specify which courts in Scotland could entertain proceedings as they are referred to in Clause 7(1)(a). If, at this stage, it is possible to indicate what the Secretary of State has in mind as to the courts, I am sure that would also be of interest. I beg to move.
Lord Hope of Craighead: I intervene to say that I shared the misapprehension of the noble and learned Lord, Lord Mackay of Drumadoon. I confess that I also thought from the wording of Clause 7(8)(a) that the rules referred to were in relation to the rules as regards what would happen in the court as opposed to the choice of the court. If it is to be the choice of the court, then the Secretary of State is the appropriate person to make those rules; and I should be perfectly content, for my interest, if that point could be clarified.
The Lord Advocate (Lord Hardie): I confirm, as I indicated informally to the noble and learned Lord,

853
Lord Mackay of Drumadoon, during the break that the reference to the rules in subsection (8) is a reference back to Clause 7(2). The intention is that the Secretary of State would make rules as to which court or tribunal would have jurisdiction to entertain claims.
On the other hand, I wish to record that it is entirely appropriate that the head of the judiciary in Scotland, the Lord President or the Lord Justice General, as the case may be, should have responsibility for any procedural rules within the court. I am satisfied that that can be achieved without any special provision in the Bill, under existing powers.
On the other point raised by the noble and learned Lord, Lord Mackay of Drumadoon, I am afraid that I cannot indicate at this stage what the Secretary of State has in mind.
Lord Mackay of Drumadoon: I am grateful to the noble and learned Lord for confirming, for once, that I am wrong.
The second point that I raised is a matter of some interest, not least in relation to ancillary topics such as legal aid and the provision of the necessary resources for the courts. Perhaps some further thought can be given to that before the later stages of the Bill. Having received the explanation that I expected, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7, as amended, agreed to.
Clause 8 [Judicial remedies]:
[Amendment No. 57A not moved.]
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 58:
Page 5. line 16, leave out subsection (2).
The noble and learned Lord said: This is a probing amendment which seeks to invite the Government to consider whether there might be merit in recasting Clause 8 to enable both civil and criminal courts to award damages to any individual who might be able to establish that they have been the victim of an unlawful act.
I readily accept that the suggestion I put forward is a somewhat unusual one, but the concern which has been expressed to me, and which I repeat, is that if the matter is first raised in a criminal court (which would not have power to award such damages), it may be necessary for the individual who has successfully established that he has been the victim of an act which is incompatible with his convention rights to raise a second action at further expense to himself, to others and the court system itself.
I accept that the amendment as framed may be open to some criticism as being technically defective, but the point that it seeks to address should be looked at. On that basis, I beg to move.
Lord Campbell of Alloway: Although no doubt perfectly crafted for civil proceedings, I wonder whether the noble and learned Lord the Lord Chancellor could have a look at this provision with a view to amending it in a more suitable form as regards criminal proceedings. It
854
would be simply done. It is not a criticism of the drafting; it is just something which appears to have been overlooked. I wonder whether it could be looked at.
Lord Lester of Herne Hill: I wonder whether one matter could be clarified in the reply to the amendment. As those Members of the Committee who are judges or practical lawyers will know, one cannot obtain compensation under traditional English legal principles for maladministration unless there is misfeasance in public office, unless there is bad faith. However under the European Convention on Human Rights, the position is somewhat different.
It is clear that where a public authority acts in breach of legitimate expectations in a public law context and causes direct damage, there is a right under the convention to compensation. What I am not clear about as regards the structure of Clause 8 as it stands is what happens in, for example, judicial review proceedings, where what is at stake is a public law tort (a government tort) giving rise to direct loss, as distinct from the normal private law tort. That distinction does not normally arise under our legal system as it stands, except, as I say, where there is misfeasance in public office.
If I am right about the position under the European convention—it arises in an Irish case called Pine Valley Developments, where the European court held that there needed to be compensation for breach of legitimate expectations in the planning context—it seems to me that one needs to be clear whether, by means of a Pepper v. Hart statement, or under the wording of Clause 8, the Bill permits the remedy of compensation for what I call public law wrongdoing as distinct from normal private law tort in the context in which the convention would require it.
10.45 p.m.
The Lord Chancellor: Clause 8 provides the courts and tribunals with wide powers to grant such relief or remedy which they consider just and appropriate where they find that a public authority has acted unlawfully by virtue of Clause 6(1) of the Bill. Under Clause 8(2),
"damages may be awarded only by a court which has power to award damages, or to order the payment of compensation in civil proceedings".
Under Clause 8(3):
"No award of damages is to be made unless"⁁
and I miss out the intervening words⁁
"the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made".
That is a comprehensive and comprehensible code. However, it is necessary to put down certain limits on what remedies a court or tribunal can provide. Subsection (2), which I have just read, provides one such restriction. It states that,
"damages may be awarded only by a court which has power to award damages … in civil proceedings".
Quite clearly, this means that a criminal court will not be able to award damages for a convention breach, even if it currently has the power to make a compensation order unless it also has the power to award damages in civil proceedings.

855
So as to make the intention plain, it is not the Bill's aim that, for example, the Crown court should be able to make an award of damages where it finds, during the course of a trial, that a violation of a person's convention rights has occurred. We believe that it is appropriate for an individual who considers that his rights have been infringed in such a case to pursue any matter of damages through the civil courts where this type of issue is normally dealt with; in other words, to pursue the matter in the courts that are accustomed to determining whether it is necessary and appropriate to award damages and what the proper amount should be. For that reason, we regard the inclusion of subsection (2) as an entirely proper part of the scheme.
We say that the Crown court, in cases of crime, should not award damages. The remedy that the defendant wants in a criminal court is not to be convicted. We see very considerable practical difficulties about giving a new power to award damages to a criminal court in convention cases. It would seem to me to open up the need for representation in the Crown court to any person whom it might appear in the course of criminal proceedings might be at risk of damages. We believe that that would be potentially disruptive of a criminal trial. Similarly, a magistrates' court is a criminal court and, under the amendment, it could award damages. We believe that it is appropriate that the civil courts, which traditionally make awards of damages, should, alone, be enabled to make awards of damages in these convention cases.
Lord Lester of Herne Hill: Before the noble and learned Lord sits down, perhaps he could deal with the particular question that I raised regarding Clause 8(2). I follow the noble and learned Lord and respectfully agree with him about the position of the criminal courts. However, my question is: what happens with a judicial review court, which is only entitled to grant damages if there is a tort which could give rise to a damages claim in a civil court? The problem I seek to raise is this. What happens under the convention in a judicial review court where the convention requires the payment of damages for what is really the Government tort of breaking the convention—notably, where there is a breach of expectations but that may not be the only example? Will the position be that the damnified applicant has first to go to the judicial review court and then bring a Government tort claim in an ordinary civil court or will he be able to get his remedy under the convention for damages for public law wrongdoing in the judicial review court? I do not expect an answer off the cuff to that question as it has not been thought about, but I should be most grateful if there could be a considered reply in correspondence if that is the convenient way of proceeding. It seems to me to be quite important to sort this out if one can.
Lord Campbell of Alloway: I am rather naïve about these affairs. Is there such a thing as a government tort for breach of the convention? I have not heard of one. I should be grateful if the noble and learned Lord could give us some clarification on that.
The Lord Chancellor: I certainly do not undertake to give the noble Lord an answer to that either extempore or
856
in writing. I have grave reservations about giving legal advice from the Dispatch Box, which of course the noble Lord is well able to give to himself, which will then be transmuted by the doctrine of Pepper v. Hart into what the Government intended as a result of this provision of the Bill. I am very self-restrained about doing that. I am tempted simply to rely upon the answer that in the circumstances to which the noble Lord alludes an award of damages will be made if— I quote from Clause 8(3)—
"the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made".
I feel a moderate degree of confidence that the noble Lord could argue both sides of that question depending upon the client who instructed him.
Lord Mackay of Drumadoon: I am grateful to the noble and learned Lord the Lord Chancellor for his reply which I think I anticipated. However, it will be of interest to those who suggested this was an appropriate issue to raise. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 59 not moved.]
Clause 8 agreed to.
Clause 9 [Acts of courts and tribunals]:
The Deputy Chairman of Committees (Lord Cocks of Hartcliffe): I understand that the noble and learned Lord, Lord Wilberforce, does not wish to move Amendment No. 60.
[Amendment No. 60 not moved.]
Lord Meston Lord Meston moved Amendment No. 61:
Page 5, line 42, at beginning insert ("Except insofar as is required under Article 5(5) of the Convention.").
The noble Lord said: I shall speak briefly. Clause 9(3) provides a general immunity for acts of courts. However, the relationship between this subsection and Article 5(5) of the convention—which the Committee will find on page 14 of the Bill—needs to be addressed. Article 5(5) gives an enforceable right to compensation to those who have been victims of arrest or detention in contravention of the provisions of Article 5. In this respect the United Kingdom has been in breach of Article 5(5) for a long time. Clause 9(3) of the Bill seems to preserve that continuing breach. It should be possible to introduce a scheme of compensation for those who are victims of arrest or detention in breach of the convention without affecting the important personal immunity of judges and magistrates. I beg to move.
The Lord Chancellor: This amendment inserts an exception to the general provisions of Clause 9(3) so that damages could not be awarded in proceedings under this Act in respect of any act of a court,
"Except insofar as is required under Article 5(5) of the Convention".
The effect of the amendment would be to enable people to obtain damages in respect of acts of courts which are in contravention of the provisions of Article 5. The Government are aware that Clause 9, as currently drafted, makes no explicit provision for the requirement of Article 5(5) that everyone who has been the victim

857
of arrest or detention in contravention of the provisions of Article 5 shall have an enforceable right to compensation.
Clause 8 provides for such an enforceable right to compensation in relation to public authorities generally. Clause 9, as currently drafted, preserves the common law and statutory rules which, broadly speaking, provide that the Crown is not liable in tort in respect of judicial acts and that judges and magistrates acting within their jurisdiction, or outside their jurisdiction if doing so in good faith, are immune from having proceedings brought against them personally.
I can assure the noble Lord, Lord Meston, that the Government are alive to the need to make appropriate provisions for the Article 5(5) requirement and are considering how best to give effect to this obligation in relation to courts and tribunals. I am delighted that the noble and learned Lord, Lord Simon of Glaisdale, remains in his place to hear me in my non-Mephistophelean mode. In particular, the Government are considering the interrelationship between that obligation and the existing laws and judicial immunity and Crown liability for the acts and omissions of the courts. The Government are considering possible provisions that may be required at Report stage.
We welcome this opportunity to hear the view of the noble Lord on how best we might give effect to the obligation to provide a right to compensation. The Government will consider more fully the issues which we should take into account in considering how to address this matter. If the noble Lord desires to write to me on the subject, that would be welcome. An amendment on the lines of the one before the Committee now may prove to be the best way of achieving that aim. But it would be preferable, I think, if the complex and delicate issues of judicial immunity and Crown liability for judicial decisions could be considered a little more thoroughly before an amendment is made to this clause; and, perhaps because of the late hour at which this amendment has been taken, we have not had the fuller debate on this issue which we might otherwise have had.
Therefore at present I ask that the noble Lord withdraws the amendment against my undertaking that we shall consider it positively and with care.
Lord Meston: In view of that answer, I am happy to beg leave to withdraw the amendment. I express gratitude that the constant battering of the noble and learned Lord, Lord Simon of Glaisdale, has produced such flexibility, albeit rather late in the day.
Amendment, by leave, withdrawn. Clause 9 agreed to.
[Amendment No. 62 not moved.]
Lord Henley: As regards Amendment No. 63, I suspect that this—
Lord Simon of Glaisdale: Before the noble Lord sits down, are we really going to start a debate on legal aid at almost eleven o'clock')
Lord Henley: I am sympathetic—
Lord Simon of Glaisdale: I did not hear the answer to my question.
Lord Henley: I was about to give it, if I may. I suspect that it is not for me to answer; it is for the Government Chief Whip. I am sympathetic to what the noble and learned Lord says. I do not think that it is the right time to have a long debate on legal aid. I was not sure that we were to have a long debate on legal aid. I put down the amendment merely by way of a probing amendment in order to ask a number of questions of the Government about the Cardiff speech by the noble and learned Lord the Lord Chancellor on the separate fund for human rights issues, the Green Paper he proposes to bring forward on these matters and about how the legal aid issues will affect both England and Scotland.
As I understand it, I am not now speaking to the amendment. I seek advice at this stage as to whether I can move the amendment on Thursday and address it on that occasion, having given some forewarning of the few brief issues that I wish to pursue. I suspect that the best course is not to move the amendment now.
Lord Carter: In order to help the proceedings of the Committee, I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at eleven o'clock.