§ 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 Hill
moved 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 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 Glaisdale
moved 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.
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 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 Hill
had 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 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 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 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 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 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 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 adjourned at eleven o'clock.