COMMONS AMENDMENT (Hansard, 29 October 1998)

§ Lord Williams of Mostyn
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 10. I wish to speak also to Amendments Nos. 11 to 13. These also are technical amendments to Clause 5 relating to whether or not notification is required to the Crown when a court is considering making a declaration of incompatibility. They are entirely technical. I beg to move.

§ Lord Mackay of Drumadoon
My Lords, perhaps I may welcome these amendments, as I had intended to welcome the previous group of amendments but was somewhat slow to get to my feet. I wish to raise one practical issue in relation to the relationship between Amendment No. 9 and these amendments.
I may be wrong, but I understand that Clause 5, as now amended, entitles the Crown to notice of the consideration of whether a declaration of incompatibility is to be made, and then, under subsection (2), gives the Minister of the Crown and various other parties, who now include a member of the Scottish executive and a Northern Ireland Minister, the right to intervene. I am interested in exploring the practicalities of how the Scottish executive, the Northern Ireland Minister and the Northern Ireland department will become aware of the possibility of a declaration of incompatibility being made. No obligation is set out on the face of the Bill to give notice to other parties in the same way as to the Crown. One possible solution might be for the Crown to undertake to pass on such notice to the other parties involved. I am sure that could be done administratively.

§ Lord Lester of Herne Hill
My Lords, we welcome what are undoubtedly perfectly sensible technical amendments. However, I wish to raise one matter. Under the amendments that have just been passed and under these amendments, it is obviously sensible for the governing authorities of the country to be given notice and for the Crown to be given adequate notice of the right to intervene when a court is considering whether to make a declaration of incompatibility, whether in the context of the devolution legislation or under the Human Rights Act. It is troubling that there will be no body that is able to represent anyone other than the individual victim or the Crown or government body concerned except in the context of the Northern Ireland Bill, where, as we understand it, the Human Rights Commission for Northern Ireland will be able to intervene, playing a public interest amicus role.
I was re-reading an important essay written by the noble and learned Lord the Lord Chancellor when in opposition. He deployed the case for a human rights commission very clearly. That is water under the bridge at the moment as far as concerns Great Britain, but I wonder whether the Minister can say something about 2094 how he sees the amicus curiae role of third party interest groups able to put in their submissions, in addition to the Crown's submissions, when issues about declarations of incompatibility are in issue. It is quite right that the Crown should be in a preferred position and have an automatic right of intervention, but does the Minister echo the words of the noble and learned Lord the Lord Chancellor at an earlier stage when he said he hoped that the courts would be generous in permitting third party human rights organisations to be able to make their representations, in addition to the victim him or herself.

§ Lord Williams of Mostyn
My Lords, originally this was simply a technical amendment because no notice is required to be served on the Crown. However, I have taken note of the noble Lord's question. I hope I can undertake that, if there is a gap in the appropriate notification to, for example, the Northern Ireland Assembly or the Scottish parliament, that will be attended to in the rules as provided for in Clause 5(2). I am grateful to the noble Lord because he has made a specific point and one which we need to bear particularly in mind.
The noble Lord, Lord Lester, is casting his net a little wider as regards this amendment. We have been together now for not quite 40 years—although it sometimes feels like it. I ought to point out that there is nothing at all—and I am saying this on the record for the noble Lord's legitimate, though subterranean purpose—to stop interest groups assisting individuals who may bring proceedings or making their views known to the Crown.
An important aspect of the development of judicial review and related proceedings in this country—and this echoes what my noble and learned friend the Lord Chancellor said quite plainly—is how much more flexible and open the courts have been in allowing various interest groups the amicus role. I can give your Lordships one illustration in that respect. I have in mind, for example, the time when NACRO performed an extremely helpful role in the very thorny question of the balancing of rights of those who have been convicted of paedophile offences to live reasonably with the rights of the community to know of their offences. That was a step forward and one in the continuing process. On the basis of the assurances that I have given to the noble Lord about the rule-making power, together with the other indications that I have made, I commend the amendment to the House.