HL Deb 21 October 1998 vol 593 cc1548-54

(" . Where the Commission consider that a person is likely to engage in conduct that will lead to a persistent breach of the provisions of—

  1. (a) the Human Rights Act 1988, or
  2. (b) section 61 or 62 of this Act,
they may apply to the High Court for an injunction preventing that person from such conduct; and the High Court, if satisfied that the application is well founded, may grant the injunction sought in the terms applied for or in such more limited terms as it considers appropriate.").

The noble and learned Lord said: As we are all giving some biographical details, perhaps I should add myself to the list of those who are privileged to be members of the Northern Ireland Bar. I too would like to add to the very real tributes which have been paid to the moral and physical courage of the Northern Ireland judiciary, some of whom I am privileged to number among my friends.

This amendment approaches from a slightly different angle the question of the ability of the commission to engage in litigation. Amendment No. 149 seeks to deal with the situation where there has not merely been one isolated infringement of human rights but a pattern of violations. In fact, I was tempted to make the point by inserting the word "persistent" before the word "breach", but I resisted it because the necessity of establishing a persistent pattern has in the past sometimes given rise to difficulties.

If this power is not included, I suspect there will be occasions when a remedy which has sometimes been effective may not be available. I note Amendment No. 150 in the name of my noble friend Lord Morris and I am grateful for the reflections which have obviously been afforded to our representations. That amendment does not specifically refer to injunctions. It may be that I am being unduly cautious and that it would include injunctions, but I should be grateful for my noble friend's reflections on that.

Perhaps I may, with the Committee's leave, discuss with Amendment No. 149 Amendments Nos. 150 and 151. Amendment No. 151 takes a stage further our debates about the power of the commission to engage in litigation. I appreciate that Clause 56 accords with the policy of the Human Rights Act to confine the right of action to victims. I appreciate the reasoning behind that. But, as I understand it, the Human Rights Act does not address the power of a commission of the kind we are discussing here. It would be very strange if the commission did not have power to undertake litigation of its own accord and not necessarily have to wait for the victim.

I say that for two reasons. First, an individual victim may be reluctant to initiate proceedings. He may be threatened; or, even if he is not specifically threatened, he may be intimidated or he may be under pressure from a peer group. Secondly, an assault on human rights may be directed at a group or class of people. I appreciate the amendment which the Government have moved to extend the protection to persons as opposed to individuals, but that would not necessarily include groups or classes. For those reasons, I would ask that the restriction to a victim of an infringement should be extended at least a little. I am content at this late stage to await what my noble friend says about this. For the moment, I beg to move.

9.45 p.m.

Lord Lester of Herne Hill

Amendment No. 149 gives the human rights commission the same power as is already given to the EOC, the CRE and the FEC, all of which, in the equality field—certainly the CRE and the EOC—can bring proceedings to deal with persistent unlawful conduct by seeking an injunction. Therefore, it seems to be entirely appropriate that the human rights commission should have no less a power, where necessary, to deal with a persistent breach by seeking the order of the court. That is very rarely needed in practice but it is an important power to have within its armoury.

Amendment No. 150 may be better dealt with by Amendment No. 151, which stands in my name as well as that of the noble and learned Lord, Lord Archer of Sandwell.

Amendment No. 151 seeks to give the equality commission or the human rights commission the power to bring enforcement proceedings in the same way as a Law Officer may do so.

First, there seems to be an omission from the Human Rights Bill to which I have drawn attention in correspondence. I do not know whether it has been put right in another place; it is that, whereas the Law Officers have the power under the devolution legislation to bring enforcement proceedings in respect of breaches of human rights by devolved public authorities, there is no similar power under the Human Rights Bill itself. That seems to me to be an unfortunate gap. It may be caused simply by a failure to read across from the devolution legislation to the human rights legislation.

It seems to me that the great advantage of Amendment No. 151 is that without completely destroying the narrow victim test, to which I take strong objection but am stuck with because that has already been agreed to in the Human Rights Bill, this ensures that specialist equality and human rights commissions are able to bring public interest litigation to secure compliance with the law of the land just as may the Law Officers. That seems to me to be entirely right. It means that public interest litigation will be brought by the public authorities which are dealing with strategic law enforcement and they may do so whether together with or separate from Law Officers. For those reasons, I hope that in one form or another the Government will agree that there should be the capacity to deal with persistent breaches and the capacity for strategic public interest litigation to be brought in the name of one or other of the two new commissions.

Lord Kingsland

The wonderful thing about participating in a debate on human rights when the noble Lord, Lord Lester, is present is that he does almost all one's work for one. I should add only that I agree entirely with his analysis. We support Amendments Nos. 149 and 151.

Lord Williams of Mostyn

I am sorry to be disappointing because this is the last amendment of the evening but my noble and learned friend Lord Archer and the noble Lord, Lord Lester, are right to assume that I shall adhere to the policy which was adopted in our many long debates and discussions in the Chamber and outside it over many months, if not years, on the Human Rights Bill.

As has been rightly indicated, Amendment No. 149 would enable the commission to bring cases on its own behalf and to seek restraining injunctions if a person were likely to engage in conduct which would lead to a persistent breach without having a specific victim. We believe—and this is the theme on which we have expanded in the Human Rights Bill context—that breaches of human rights affect individuals and are best judged by their effect on the individual. If the commission wishes to test a point in court, it would not be difficult in practice to find someone who had been adversely affected and therefore fell within the victim bracket. That is the policy that we have adopted on the Human Rights Bill. I cannot expand on the policy reasons because they have been expanded at length if not ad nauseam on many previous occasions.

Amendment No. 151 relates to Clause 56. As drafted it is designed to keep the Northern Ireland Bill in line with the approach to the bringing of proceedings that the Government have adopted in the Human Rights Bill. As both noble Lords indicated, that does not allow an individual to bring proceedings unless that individual would be a victim for the purposes of the convention. The exceptions to the rule in this Bill relate simply to the Attorney-General, the Attorney-General for Northern Ireland and the Lord Advocate. It is a very limited exception; namely, when they need to bring devolution proceedings under Schedule 11 in respect of legislation or actions which are or may be contrary to the convention. If this amendment were accepted—and I am not able to accept it for the reasons I have shortly given—that would add to the list of persons who could bring victimless proceedings. We have decided in the past to resist that approach. Consistency is not always the hobgoblin of lesser minds, but on this occasion I have to be consistent.

Lord Lester of Herne Hill

Before the noble Lord sits down, dealing with the principle of consistency, is there any consistency in allowing the equality commission, with the powers it inherits from the EOC and the CRE, to bring proceedings for persistent discrimination without there being an individual victim, while not empowering the human rights commission or the equality commission to do so? Where the persistent discrimination is religious discrimination arising under the Human Rights Bill, will the noble Lord consider whether consistency might not suggest in that narrow area—I take the point about human rights violations generally—that there should be a power to seek an injunction where the discrimination is arising under the Northern Ireland Constitution Act 1973, as embodied in this Bill, where one is dealing with government discrimination, as it were, by public authorities of one kind or another?

Lord Williams of Mostyn

I think the noble Lord has a point there. The consistency I was pointing to was that we have adopted this stance or this platform on the Human Rights Bill in the context of England and Wales, and I am not able to depart from that concluded policy decision in this respect.

Lord Hylton

Before the movers of either of these amendments decide to do with them, could I as a non-lawyer raise a small point? I have noticed that no one this evening has mentioned a thing called an amicus curiae brief. As a non-lawyer, I am not at all clear what that involves or entails, but I wonder whether it could be at all helpful to the subject matter of either of these amendments.

Lord Williams of Mostyn

We only have an amicus brief if there are proceedings already extant. On the scheme that we offer there are not likely to be any extant proceedings. An amicus is certainly able to address the court. Our experience has been that certainly on judicial review the higher courts have extended the ambit of who can properly address the court; but that depends, alas, on getting your proceedings off the ground—and you cannot at the moment on our scheme. Therefore an amicus, however friendly, is not going to be available to assist the court.

Lord Lester of Herne Hill

Before the noble Lord sits down, that was not, I think, what was said by the noble and learned Lord the Lord Chancellor on the Human Rights Bill, when he dealt with the victim point by saying that, although he was sticking to the narrow victim test, he hoped that the courts would take a generous view of amicus representations, which would help to tackle the problem. I wonder whether the noble Lord would be kind enough to look again at what was said in the—he said "years" but I think it was only days of—debate on the Human Rights Bill in that respect.

Lord Williams of Mostyn

It was days of debate and years of discussion. I think that the noble Lord, Lord Lester, has the scars of the years of discussion more than I have. The Lord Chancellor, as I recall it, was not suggesting that one could sidestep the necessity for a victim by simply having an amicus. As I understood it, what he was doing was endorsing and welcoming the fact that the courts are much more flexible and open-minded about giving—this is almost a contradiction in itself—a locus to an amicus in a particular instance.

Lord Archer of Sandwell

The possibility of the amicus role was discussed in another place. I do not propose to embark on it tonight, but it may be something to which we would wish to return at a later stage of our deliberations.

I confess to an element of disappointment because consistency is certainly one of the qualities which I would happily accord to my noble friend. Tonight he has been somewhat selective in the matters on which he wishes to be consistent. One inroad into his consistency has already been pointed out by the noble Lord, Lord Lester. I would have thought another matter on which his consistency was in some doubt was that the exception for law officers must be based on the fact that the law officers are guardians of the public interest. What on earth is the commission doing if it is not a guardian of the public interest? I would have thought that if one were really dedicated fiercely to consistency, that too might be a consideration.

As my noble friend says, much of this ground has been traversed before. I do not promise that it will not be traversed again. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 150 not moved.]

Clause 56 [Restrictions on application of rights]:

[Amendment No. 151 not moved.]

Clause 56 agreed to.

Clause 57 agreed to.

Baroness Farrington of Ribbleton

I beg to move that the House be now resumed.

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

House resumed.

House adjourned at ten o'clock.