HL Deb 29 October 1998 vol 593 cc2096-102

Line 3, at end insert— ("() the period of two years beginning with the date upon which this Act receives Royal Assent; and thereafter").

Lord Lester of Herne Hill

My Lords, I beg to move the amendment standing in my name, which is an amendment to Commons Amendment No. 15. I should like also to speak to other amendments in this group. As the Minister explained, the Government take the view that a one-year basic limitation period for bringing proceedings under Clause 7 of the Bill strikes the right balance. They have essentially—and quite understandably and rightly—put their trust in the courts to do mercy and to extend the time limit when it is fair to do so.

Perhaps I may begin by saying that there was absolutely no indication that there would be any such time limit in the White Paper or in any other document which preceded the introduction of the Bill; nor is there any time limit of this kind in any of the other constitutional Bills of Rights anywhere else in the Commonwealth of which I am aware. Indeed, there is none in the New Zealand Bill of Rights and none in the Canadian Charter of Rights. However, this has been put in and it seems to me that Her Majesty's Treasury is probably concerned to seek to limit liability by public authorities for what will be a new constitutional tort under Clauses 6 and 7 of the Bill.

What troubles me, first, about the time limit of one year is that it will cause confusion and uncertainty because the scheme of the Act will be to bind convention rights into the fabric of the common law. Therefore, there will be a whole variety of claims, some of which have time limits appropriate to an ordinary tort action but some of which will have time limits appropriate to this one-year constitutional tort action. Perhaps I may give your Lordships an example. Let us suppose that there is the tort of misfeasance in public office, which might have a convention element added to it. That would be subject to a longer time limit. Alternatively, there could be an Entick v. Carrington claim based upon common law notions of personal privacy which would be subject to a different time limit.

Somehow the unfortunate litigant will have to sort out what the true position will be about time limits. Therefore, I am troubled that it may cause confusion and uncertainty to introduce this unique one-year limit. I say "unique" in the sense that I know of nothing like it in any constitutional Bill of Rights. The Minister referred to the three-month time limit in judicial review, but that does not deal with a claim of right—a tort claim—indeed, it is dealing with a separate issue about judicial review.

That is my first major concern. My second concern is that the reasonableness of a one-year period is also undermined by the narrow victim test that has been adopted on standing and by the absence of any assistance for complainants, about which I have already spoken and upon which we await future government announcements.

It is easy to imagine a situation where someone with a potentially meritorious claim is unaware for a year that his or her rights have been infringed, especially if the person has had no effective access to legal services and little knowledge about the impact of the new legislation. In such a situation, the Minister will no doubt say that we can trust the judges to extend the time limit. I agree that that seems to be probable. However, I am still concerned that this new one-year time limit will have a chilling effect upon the vulnerable and underprivileged in deciding whether to invoke the Act.

The reason why I tabled my amendment to extend the one-year period to an initial two-years relates to another problem which, if anything, is more serious as far as concerns ordinary members of the public. When we read Bringing Rights Home we thought—at least I did, and I believe most other people did—that it meant that rights would be brought home within a reasonable period of time. I certainly thought they would be brought home some time within a year of Royal Assent.

My understanding is that at present the Government are not thinking of bringing rights home next year—in terms of any claims of right—and not until some unspecified time in the year 2000. I believe that the reason put forward is judicial training. I am much in favour of any form of training for anyone, including the legal profession and judges. However, I am concerned that the public administration will immunise itself from claims involving alleged breaches of convention rights throughout that long hiatus with no prospect of an individual being able to seek and obtain an effective domestic remedy throughout a period of perhaps two years from now while breaches of convention rights may occur.

That will result in a number of factors which concern me greatly. First, it will frustrate the central objective of the legislation, which is to bring rights home and create speedy and effective domestic remedies without the need to go to Strasbourg, except in the last recourse. The longer the hiatus, the longer the period in which there will be no effective domestic remedies. That will be a great misfortune. In my view as time goes by and we see rights not being effectively brought home, many of us who strongly support the Government and strongly support the objectives of this legislation will become discontented. Instead of being friends and allies of the Bill—as we are—we shall become discontented. That would be a great pity because in a measure of this kind I believe that we should seek the widest consensus of support. Therefore the longer the hiatus—if I may say so, this may be the result of the Treasury seeking to minimise liability as much as anything else—the greater the discontent.

My concern was aggravated by the comments of the Home Secretary in another place when he explained to one of the Members of his party why Article 13 of the convention had not been incorporated into our domestic law. I should be grateful if the Minister could reassure me on this matter. During the Third Reading debate on 21st October the Home Secretary said, Although Article 13 mentions a national authority, the truth is that it is there to provide a remedy for the international Court at Strasbourg. For that reason, the Government thought that it would be inappropriate to include Article 13 in the Bill to incorporate the principal operational parts of the convention that provide substantive rights".—[Official Report, Commons, 21/10/98; col. 1367.] With great respect, the Home Secretary was surely mistaken in suggesting that Article 13 does not create a substantive right to an effective national remedy. That has been made quite clear by the court in Strasbourg again and again. I mention it because it is important in the context of this time limit and the immunity that it gives to public authorities when allied with a delay in bringing the Bill into force. It will mean that there are continuing breaches of Article 13 of the convention for failure to provide effective domestic remedies during the long hiatus.

I have proposed a two year initial period so that no one will be prejudiced, in terms of their claims against a public authority, by the one year limitation period if the Government take two full years to bring the substantive provisions into force. It will mean that time will stand still as regards the one year limitation period. If people are the victims of breaches of convention rights by public authorities during that period after Royal Assent, once the Bill comes into force they will be able to seek and obtain a domestic remedy. If that does not happen, it will simply mean that we shall have to continue to have recourse on the international plain.

I am not suggesting that the Government should bring the Act into force on Royal Assent. That would be absurd. Nor am I suggesting that they should do so within a matter of weeks. However, I hope that we may be given some reassurance that the Government will look sympathetically at this matter and bring it into force in the course of 1999 before the millennium. I hope that the one year limitation period will not be an engine of injustice. I am sure the courts will do their best to secure that it is not.

Moved, That Amendment No. 15A, as an amendment to Commons Amendment No. 15, be agreed to.—(Lord Lester of Herne Hill.)

Lord Campbell of Alloway

My Lords, I object to this amendment. This is not the occasion either to initiate or reiterate a form of Committee stage argument. The views of the noble Lord are sincerely held, he is entitled to hold them, and I respect them. However, to impose them at this stage in these circumstances upon this House is not acceptable. The Government have this measure. I do not always agree with the Government—

Noble Lords


Lord Campbell of Alloway

My Lords, I do not know why I do not always agree with the Government, but if one does not feel like doing so one does not. There are occasions when I agree with the Government. I think that the Government have this measure right, and it is rather distressing that we have to take the time of the House on this affair. The noble Lord is, of course, an expert on this matter, but we are not a House of experts. I hope that we are still all of a somewhat amateur status.

Lord Lester of Herne Hill

My Lords, I am grateful to the noble Lord for giving way. Is he aware that we are discussing something entirely new; namely, a time limit that was inserted by the other place? That is why I thought it right to raise the consequences of that, coupled with commencement. Therefore it is a proper point for this House to consider.

Lord Campbell of Alloway

My Lords, I shall not prolong the discussion between the noble Lord and myself. In my opinion too much time has been spent on this matter already.

Lord Renton

My Lords, before my noble friend sits down I wonder whether he would care to rectify one thing that he said. He said that we do not have experts here. The strength of this House and its superiority is because of the vast amount of expertise that there is here.

Lord Meston

My Lords, I wish to reinforce the point that was made by my noble friend Lord Lester of Herne Hill by reminding the House of the opening words of the financial memorandum to the Bill which state, in terms, that public authorities should already be seeking to comply with the convention. I also point out that although these amendments affect Clause 7(1)(a) of the Bill, Clause 7(1)(b) provides that a person may, rely on the Convention right or rights … in any legal proceedings". As I understand it, Clause 22(4) provides, in terms, that that applies to, proceedings brought by or at the instigation of a public authority whenever the act in question took place". Accordingly the message should clearly be going out to public authorities that they cannot afford to be complacent and that they are vulnerable to arguments involving convention rights from now on.

Lord Kingsland

My Lords, I am always reluctant to disagree with the noble Lord, Lord Lester, on matters such as these because he is so often right. I am equally nervous of agreeing with the Government lest my noble friends accuse me of political ineptitude. Nevertheless I think this is an occasion where the Government have got it right.

If the noble Lord, Lord Lester, had advanced an argument based on a six-year limitation period deriving from the establishment of a new tort, the logic would have been compelling. But the noble Lord has not done that. What he has done is to say: "The Government have taken a stab at what is a fair limitation period; I think that they have got it wrong, and my stab is better than theirs".

In matters relating to public authorities, speed is important. Our laws must be certain. I am sure that the Minister would wish to assure the House that, in circumstances where an individual could not possibly have known that a breach of the convention had arisen, a court would normally extend the time period in sympathy with that individual. If the Minister could give some indication along those lines and deal with the important point made by the noble Lord, Lord Lester, about the transitional provisions, we might all find ourselves in agreement with him.

4.30 p.m.

Earl Russell

My Lords, I do not know whether the noble Lord, Lord Kingsland, was in the Chamber at the end of Questions. I am fairly sure that the Minister was. The noble Lord may have heard a Petition presented by the noble Lord, Lord Davies of Oldham, to which I listened with close attention, relating to the denial of a war pension for service-induced deafness. The denial happened in 1976 and was discovered and finally put right in 1993.

I entirely agree with the noble Lord, Lord Kingsland, on the need for speedy execution of the law. Public bodies do not always rise to that. We do not yet have a freedom of information Act. I shall not speculate on when we shall have one. In the absence of such a right it may take quite a long time to discover that a miscarriage of justice or denial of the convention right has taken place. In those circumstances this time limit may prove doubly onerous.

To repeat a comment from the noble Lord, Lord Campbell of Alloway, this matter is before the House for the first time. This is our first opportunity to address it. If new matter comes from the Commons at this stage, we should at least have the privilege of speaking about it.

Lord Williams of Mostyn

My Lords, this amendment delivers all that can reasonably be required. I take up the point made by the noble Lord, Lord Kingsland, in indicating that sub-paragraph (b) gives a discretion to the court by stating specifically that the period of one year may be extended to, such longer period as the court or tribunal considers equitable having regard to all the circumstances". I cannot think of a clause that could be more aptly drafted to secure the interests of those persons of whom examples have been given, not least that of Mr. Viggers—I was present; I am always here—and the Petition regarding his deafness.

The noble Lord, Lord Kingsland, asked what happens if there is a good reason for delay. I am happy to confirm that there may well be occasions where an individual has good reasons for delay—for example, when he is not aware at the time of the act that it might be incompatible with convention rights and therefore unlawful.

Every matter has been introduced into this debate, including a freedom of information Bill. I am happy to reiterate—yet again, and I am not confident that it is for the last time—that a draft freedom of information Bill is to be placed before the relevant committee in another place for pre-legislation scrutiny in the early part of next year.

The noble Lord, Lord Lester, thought that this was somehow the hand of the Treasury manipulating the Home Office like a marionette. That is simply not so. The Home Secretary has already announced that a task force is to be set up. He has asked the Solicitor-General and the Minister of State in the Lord Chancellor's Department to be on the task force. There will be representatives from non-governmental organisations, and the Home Secretary has asked me to chair it. That is not putting off the evil day at the request or instruction of the Treasury. It is an attempt to make sure that this epoch-making Act is translated into practice in the proper way. Judicial training is a very important aspect. We have already achieved the result from the Treasury of an extra £5 million for the Judicial Studies Board for judicial training. And it may be that barristers and solicitors will also be able to open their minds to training in this new discipline.

There will not be confusion. A person bringing proceedings will have the choice of proceeding under Clause 7(1)(a), on the convention ground alone, the one-year time limit, or relying on convention grounds in the course of existing proceedings under Clause 7 (1)(b) with exactly the same time limit as at present.

It would be confusing to have no time limit at all. There is no necessary confusion. For instance, the time limit for defamation has recently been reduced to one year. If I am assaulted by a police officer and defamed by him on the same occasion, there are two different limits. But that is easily manageable. We believe that we have got this matter right—to coin a phrase which the noble Lord, Lord Kingsland, was kind enough to offer. This is new law. A year is not unreasonable. It has nothing to do with the purse strings of the Treasury. Public authorities have to run their businesses and manage their schemes. If they are left in limbo for an unnecessarily long period of time, that will militate against efficient administration; in fact, it will be a recipe for human rights not to be upheld and demonstrated. On the basis of the assurances I have given to the noble Lord, Lord Lester, I ask him to withdraw his amendment to the Commons amendment—which I respectfully commend to the House in its place.

Lord Lester of Herne Hill

My Lords, before the Minister sits down, perhaps he will deal with two matters before I explain what I propose to do. First, does it follow from his remarks that in the Government's view it would be open to the courts to treat as a just and equitable reason for extending the time period any very long delay in bringing the human rights Act into force after Royal Assent, so that the hiatus problem could be dealt with in that equitable way?

Secondly, will the Minister reassure me on a matter that causes widespread concern among human rights organisations; namely, the suggestion by the Home Secretary that we are not obliged under Article 13 to give effective domestic remedies as a substantive right? Again, that relates to the hiatus problem.

Lord Williams of Mostyn

My Lords, the discretion is given to the courts to be exercised judicially on an equitable basis. It is not right for any government Minister, not even a Home Office Minister, to give indications to the courts as to how they exercise their discretion. That would be improper.

Article 13 states that everyone whose convention rights are breached has a right to an effective remedy before a national authority. I do not believe that on any occasion the Home Secretary has said anything implying a contrary proposition.

Lord Lester of Herne Hill

My Lords, I am grateful to everyone who has taken part in the debate, even to the noble Lord, Lord Campbell of Alloway, who thought it somehow improper to raise the subject at all since he thought it to be unimportant. It is important that, if we bring rights home, we do so speedily and in a way that can be enjoyed in practice by ordinary men and women of limited means, by the vulnerable and by those who do not understand their rights well.

I am reassured by the Minister's remarks about the width of the judicial discretion. I very much hope that the Government will make sure that there is no unnecessarily long hiatus. On the basis that it is common ground that Article 13 guarantees the right to an effective remedy in this country, not merely a right to an international remedy, I beg leave to withdraw my amendment.

Amendment No. 15A, as an amendment to Commons Amendment No. 15, by leave, withdrawn.

On Question, Motion agreed to.