§ 4.25 p.m.
§ House again in Committee on Clause 6.
Lord Wakeham moved Amendment No. 32:
Page 4, line 4, at end insert ("or
(c) where the public authority is a court or tribunal and the parties to the proceedings before it do not include any public authority.").
§ The noble Lord said: In moving this amendment, I shall also speak to Amendments Nos. 33, 35 and 42.
§ As the Committee will know, it is right for me to declare an interest as chairman of the Press Complaints Commission. The commission's job is to protect the legitimate expectation of privacy on the part of individuals—but to do so through self-regulation rather than statutory control.
§ Let me begin by saying that I have no great problem with the principles of the convention. My problem is not with the principle, but with the method. In short, the detail of the Bill and the consequences of that detail seem to do something which I profoundly do not want to happen; nor I believe do the Government. The Bill as drafted would damage the freedom of the press and badly wound the system of tough and effective self-regulation that we have built up to provide quick remedies without cost for ordinary citizens. It would inevitably introduce a privacy law, despite the Government's stated opposition to one.
§ As will be clear, I speak not as a lawyer but as a layman. From that standpoint, it seems to me that the first problem arises because of the role of the courts as public authorities enforcing the convention and developing the common law. As I understand it, it will therefore be possible for the courts to use the convention not just in respect of disputes between individuals and public authorities but in disputes between private individuals.
Again, that is contrary, as I understand it, to the Government's previously and clearly stated intentions. Indeed, the White Paper accompanying the publication of the Bill stated that,
the time has come to enable people to enforce their Convention rights against the State in the British courts".
§ No mention was made of private individuals or organisations.
§ In my view the Government were right first time. Incorporation of the convention should not be used to enlarge the remedies available in private disputes. It 772 must be made clear, as the Government have maintained before and since the election, that it is to be used to curb the power of the state.
§ I have tabled two sets of amendments to clarify that point and to prevent the courts being dragged into disputes which are nothing to do with public authorities. The first set seeks to prevent the courts using the convention to interfere in issues relating to privacy where those are matters between private parties and do not involve the state. I might add that I think the amendment tabled to Clause 9 by the noble and learned Lord, Lord Wilberforce—Amendment No. 60—relates to the same point.
§ My amendment aims to stop the development of a common law of privacy. Such a law could never be as effective as self-regulation in safeguarding the rights of individuals. And such a law would seriously erode the freedom of the press, which has been a pillar of our democracy since the first Bill of Rights in 1689.
§ It would also be highly damaging to ordinary people—in other words, the great majority of those who from time to time are affected by media intrusion—leaving them without the protection of self-regulation. For most people, going to law to protect their privacy would be a ruinously expensive business which few could afford. They simply would not do it. Given that, as I know from experience of the Press Complaints Commission, very few cases of invasion of privacy are clear-cut, I do not believe that the plan of the noble and learned Lord the Lord Chancellor for a "no-win, no-fee" system of costs will work in these kinds of cases.
§ If there is a law of privacy, fashioned by the courts, I fear that the newspapers will simply say to complainants, "Use it". That will be fine for the rich and the powerful, but it will be a remedy out of the reach of ordinary people. Indeed, where there is a problem with intrusion into the privacy of ordinary citizens, a law will simply make it worse than under tough self-regulation, not better.
§ I fully expect that the noble and learned Lord the Lord Chancellor will tell me—indeed, he has never sought to make any bones about it—that a judge-made law of privacy is on its way and that it may happen in a year or two anyway as the courts seek to advance, without Parliament's express approval or scrutiny, the law of confidence. With great respect, if I may say so as one who believes in the sovereignty of Parliament and has been Leader of both its Houses, that is no justification. If Parliament wants a law of privacy—which would be a fundamental change in our constitutional balance, to which I am, of course, opposed—it should pass one, not just acquiesce in the courts' creating one without its approval or scrutiny.
§ My second set of amendments seek to protect the work of the Press Complaints Commission and the system of self-regulation, which could be fatally undermined by this legislation if the PCC were held to be a "public authority" under the terms of the Bill. We need to ensure that the PCC is held not to be a public authority, not just for abstruse points of legal nicety, but because the future of self-regulation depends upon it.773
§ If the PCC's adjudications on matters of privacy could be subject to subsequent action by the courts, my task of seeking to resolve differences, to obtain a public apology where appropriate or, if necessary, to deliver a reprimand to an erring editor would no longer be a practical proposition because the courts would be able to intervene after our work had finished. That would ensure that from day one the newspapers' approach to a complaint of invasion of privacy would be highly cautious and legalistic. The courts may also be able to award monetary compensation. My chances of making self-regulation work for the benefit of ordinary people, and without cost to them, would be minimal.
§ I had intended to pose a rhetorical question about whether the PCC was a public authority in terms of the Bill in order to demonstrate that uncertainty existed on this point. As the noble and learned Lord the Lord Chancellor knows, there was until recently legal opinion from a most distinguished quarter that the PCC was not within the terms of the Bill. However, an article in last week by David Pannick QC asserted, in stark contrast, that the PCC is caught by the definition. In addition, during the Second Reading debate the noble Lord, Lord Williams of Mostyn, suggested that this was a matter for the courts to determine.
§ It would have been unusual to proceed with such uncertainty because it left open an ambiguity which might have the effect of bringing disputes between newspapers and individuals within the scope of the Bill only by virtue of the fact that the PCC was declared a public authority. However, I can now answer my own question—and I am most grateful to the noble and learned Lord the Lord Chancellor for assisting me in this. He wrote to me this morning to confirm that, in his view, the PCC is a public authority within the terms of the Bill. He also confirmed the point that in privacy matters newspapers would be subject to interim as well as final injunctions under its terms. His letter confirms that, despite what had been said to the contrary, newspapers and magazines are within the terms of the legislation. In other words, we have a de facto privacy law on our hands.
§ In the courteous way that I would expect of him, the noble and learned Lord the Lord Chancellor seeks to reassure me that a newspaper will not go down to an injunction where there are "solid" public interest grounds, just as when in libel cases a newspaper says it will justify a story. However, the point is that in privacy cases the courts would inevitably err on the side of caution and would not refuse an injunction, despite the fact that a newspaper said that there was a public interest defence. The result would be that all newspapers would be bound by that injunction and it could be years before a full hearing took place. That, in my view, would be an end to investigative journalism.
§ It may be that these are merely unintended consequences and the Government have not yet had a chance to think through all the implications of what the noble and learned Lord the Lord Chancellor said in his letter to me. It may be that they should look very carefully at my amendments, which would have the effect of taking the PCC out of the terms of the 774 legislation and of preventing direct action against newspapers. These amendments, after all, simply help the Government to do what they always said they wanted to do: introduce legislation that applies only to public authorities and not to newspapers.
§ The noble and learned Lord the Lord Chancellor is an old friend for whom I have the highest regard and who, as he said at Second Reading, until May played an important role in establishing and nurturing the work of the Press Complaints Commission as a member of its Appointments Commission. I know that he feels neither that my fears are justified nor that there will be established a convenient law for the rich to avoid publicity or the corrupt to escape the spotlight of investigation. I know he thinks that a free press will be safe in the hands of the judiciary.
§ I am sure that he will tell us that the courts will interpret these matters in a sensible and reasonable way by giving due weight to Article 10 of the convention on freedom of expression. We may be told—as David Pannick set out in the article I mentioned earlier—that the courts may seek to leave delicate judgments on privacy matters to specialist bodies such as the PCC. All so well and good. But, if the Government agree with those points, they ought not to leave them to the discretion of the courts; and they should not leave the Bill unamended. These are matters too important to be left to chance. After all, we are tampering with the freedom of the press and with self-regulation not just for this moment but for all time to come.
§ I am grateful, as I said earlier, to the noble and learned Lord the Lord Chancellor for writing to me to clarify these matters and for doing so in a way that convinces me that there is a very serious problem with the Bill. Self-regulation has come on in leaps and bounds in recent years but, as I have often said, it is not perfect. I do not rule out further improvements over time, but that will be much more difficult to negotiate with a press subject for the first time ever to statutory controls and a privacy law.
§ In my view, judicial interference in matters such as this and the freedom of the press do not mix. I believe that the freedom of a responsible press can only really be safe in the hands of Parliament. The Bill, as the noble and learned Lord's letter to me confirms, takes the matter out of the hands of Parliament and in doing so introduces a back-door privacy law. I do not want that to happen because I believe that the practical effect for the ordinary people of this country who cannot afford the expense of going to law will be less protection, not more. I therefore strongly urge the noble and learned Lord the Lord Chancellor to look at these matters again before it is too late.
§ Lord Lester of Herne Hill
I hope it will be for the convenience of the Committee if I speak to Amendments Nos. 32, 33, 35 and 42 and at the same time to Amendment No. 39, the official Opposition amendment seeking to exclude the press and the broadcasting media from the scope of Clause 7.
775 Amendments Nos. 32 and 35 seek to replace the broad definition of "public authority" in Clause 6(3) by a narrow definition that would effectively exclude a wide range of persons exercising functions of a public nature from the obligation to comply with convention rights. For example, they would exclude the Independent Television Commission, the Video Recordings Authority, the Radio Authority, the Broadcasting Standards Commission, the Press Complaints Commission and the Advertising Standards Authority. Those are all bodies, whether public or private in the technical sense, which perform functions of a public nature. They are all subject to judicial review as public authorities, as, for example, is the City Takeover Panel.
I agree with David Pannick QC. Though I have not had the benefit of sight of the Lord Chancellor's letter, I agree with him also that there can be no doubt that the Press Complaints Commission would not only be judicially reviewable but also a public authority for which the United Kingdom would be nationally responsible under the convention if it unnecessarily restricted free speech.
The United Kingdom is responsible under Article 10 of the convention if any one of those public authorities exercises its regulatory powers in breach of the right to free speech under Article 10 or, for that matter, if it purports to determine someone's civil rights or obligations without a fair hearing in breach of Article 6. I say that all those bodies exercising public functions are excluded by the amendment because (a) they are not a "court or tribunal" in the words of Amendment No. 32 and (b) they do not,confer a legally enforceable right or duty on another person",in the words of Amendment No. 35.
In spite of what has been said by the noble Lord, Lord Wakeham, I do not understand the mischief that this amendment seeks to remove from the Bill in respect of all those public authorities. It is surely essential that any person for whose breach of the convention the UK would be internationally responsible should be within the scope of Clause 6. The amendment will simply create a mismatch between our international obligations and domestic implementation.
I should add that it is in the interests of those regulatory bodies—including the PCC—exercising public functions to be subject to the court's supervisory jurisdiction by way of judicial review because they are protected by safeguards built into that supervisory jurisdiction, including the need to seek leave to apply against them for judicial review, fairly strict time limits, the limited scope for discovery and the discretionary nature of remedies. As regards Amendment No. 42, I am mystified by the proposed exclusion of Clause 6(5) since that serves the important purpose of making it clear that a person is not a public authority by virtue of Clause 6(3)(c) if the nature of the act is private.
Those may seem technical points. Perhaps I may now turn to the thrust of the amendment of the noble Lord, Lord Wakeham, and with it the amendment tabled in the name of the official Opposition which seeks to exclude 776 altogether from the scope of the duty to comply with convention rights the press and the broadcasting media. What is therefore contemplated by the amendment of the noble Lord, Lord Wakeham, and those standing in the name of the Opposition is that the press and broadcasting media should be able to enjoy the benefit of the right to free speech guaranteed by Article 10 but that they should not be under any legal obligation to respect the right to personal privacy guaranteed by Article 8.
Among other things, those amendments fly in the face of the Broadcasting Act 1996 sponsored by Mr. Major's government, Section 107 of which imposed a duty on the Broadcasting Standards Commission to draw up a code giving guidance as to the principles to be observed and the practices to be followed by the broadcasting media in connection with the avoidance of the unwarranted infringement of privacy.
Only today the Broadcasting Standards Commission, wisely and effectively chaired by Lady Howe, published a new code on fairness and privacy for broadcasters. The code sets out important basic principles which provide a useful ethical framework. It requires that any infringement of privacy must be justified by an overriding public interest in disclosure of the information. That includes revealing and detecting crime or disreputable behaviour; protecting public health or safety; exposing misleading claims or disclosing significant rather than insignificant incompetence in public office. The code also stresses that the means of obtaining the information must be proportionate to the matter under investigation.
The code seeks to balance two competing public interests—the citizen's basic right to freedom of information and expression and the responsibility of journalists and broadcasters not to infringe the citizen's right to personal privacy without good reason. As Lady Howe points out, there is considerable virtue in the electronic and print media setting standards. She expresses the hope and belief that the Press Complaints Commission will be onside in the same way. Her code—that of the Broadcasting Standards Commission—refers to the vulnerability of children and makes it clear that children do not lose the right of privacy because of the fame or notoriety of their parents or events in their school.
I find it a bit surprising, especially in the light of the public furore surrounding the death of Diana, Princess of Wales, that both the noble Lord, Lord Wakeham, and the official Opposition seek to remove the Broadcasting Standards Commission, the Independent Television Commission, the Radio Authority, the broadcasters and I dare say the Video Recordings Authority and the Press Complaints Commission from the obligation to respect both the right to free expression and the right to personal privacy.
As regards the exclusion of the independent press, that is unnecessary because a newspaper organisation could not properly be regarded as a public authority within the meaning of Clause 6(3)(c). The effect of the Bill on a newspaper is much more subtle and indirect. It is clear from the Strasbourg case law that there are 777 circumstances in which Article 8 of the convention imposes a positive obligation on the state to ensure that personal privacy is respected vis-a-vis private persons as well as public authorities.
Under Clause 6(3) a public authority includes a court. Under Clause 13(1) a person may rely on a convention right without prejudice to any other right or freedom conferred on him under any other law. Clause 13(2) makes it clear that Sections 7 to 9 will not affect the right of any person to make any claim or bring any proceedings which he could make or bring apart from those sections.
I have no doubt that even if these amendments were to be accepted, our courts would develop a common law right to respect for personal privacy in an appropriate case overruling the decision of the Court of Appeal in Kaye v. Robertson. There are already strong dicta to that effect by senior judges in their judicial and extra-judicial capacities. Happily, nothing in the Bill prevents them from developing the common law (see Clause 13(2)), nor does anything in the Bill prevent the courts from having regard to the convention, including Article 8, in proceedings other than those brought under Sections 7 to 9.
I believe that the press has nothing to fear in the development of a common law right of personal privacy whether under this Bill or at common law. I agree with my colleague David Pannick QC, who wrote a very useful article in The Times last week, that where the Press Complaints Commission, with suitably enhanced powers, exercises those powers fairly and reasonably in accordance with Articles 8 and 10, the courts will not intervene but will respect the broad discretionary powers of the PCC. The problem is that the PCC does not have the power to grant effective remedies for infringements of personal privacy, including a power to order the payment of compensation. If the press wishes to avoid unnecessary litigation, this Bill would be a spur to reform because it would be well advised to empower the PCC, under the chairmanship of the noble Lord, Lord Wakeham, to grant that crucial remedy.
As regards the threat of interlocutory injunctions to restrain publications of infringements of personal privacy, our courts will surely take account of the Strasbourg case law emphasising that prior restraints on publication are a draconian interference with free speech requiring a compelling justification based on strict necessity. Where there is a reasonable prospect of there being a genuine public interest defence, no sensible judge would grant an interlocutory injunction preventing publication and thereby creating a breach by the courts of Article 10 of the convention.
I should add for good measure that I have read exaggerated suggestions in, I believe, the Mail on Sunday, indicating that in France and Germany privacy protection hampers the role of the free press in investigating and uncovering information about government and other malpractices. I have checked both with the president of the German Constitutional Court, Professor Doctor Jutta Limbach, and with Roger Errera, a distinguished member of the French Conseil d'Etat and former chairman of the Media Commission 778 established by President Mitterand. In Germany, as under the convention, the right to free speech is usually paramount. In France, defamation law is much more favourable to the press than in this country because as the burden of proof is on the plaintiff, there are wide public interest defences and the awards for damages are small. I should also observe that even in the United States, the country of the First Amendment, there is ample protection of personal privacy under state statutes and American common law.
I have had the privilege of acting on behalf of newspapers and broadcasters in challenging many unnecessary restraints on free speech imposed by the English laws of contempt, copyright, defamation, the protection of confidential information, contracts, and so on. In all those cases I have relied on Article 10 of the convention, whether in Strasbourg, or in this country, or in Hong Kong. I doubt whether any other English advocate has made as much practical use of Article 10 in promoting the effective protection of the right to free speech. However, that right is not absolute. The unfairness of these amendments is that they would give the press rights against public authorities while seeking to create immunities where the press acts in breach of its responsibilities to the individual citizen. I devoutly hope that they will be withdrawn.
§ Lord Henley
Perhaps I may speak briefly to the amendments put down in the name of my noble friend Lord Wakeham. I start by mentioning Amendment No. 39, which stands in my name and that of my noble friend. First, I reassure the noble Lord, Lord Lester of Herne Hill, that I was not going to press it; secondly, it was therefore not necessary for him to address it at quite such length; and, thirdly, if I was going to press it, or even move it, it would be the Government's response I would be listening to and not necessarily the noble Lord's.
My noble friend Lord Wakeham explained in some detail what was behind his amendment. It was a fear that the Government were seeking to introduce a privacy law through the back door by means of the Bill. We have considerable sympathy for the approach he adopted. There might be or there might not be arguments for or against a privacy law. But if there were to be a privacy law, my noble friend was quite right to make it clear that it is something Parliament itself should hammer out and should go through in considerable detail by means of legislation rather than leaving it to the courts to develop as they wish. For that reason we share his fear that one of the effects of the clause would be to bring in a privacy law by the back door.
I do not know my noble friend's intentions about the amendment either at this stage or at a later stage of the Bill. But I have to say that, if he wanted to test the opinion of the House on this or another occasion, we would certainly be offering our support from these Benches.
§ Lord Campbell of Alloway
Perhaps I may deal briefly with the question of definitions. "Public authority" is not defined in the convention and there is 779 no definition in Article 8. It has been interpreted by the European Court of Human Rights in a series of case law decisions under a system where there is no binding precedent. There are few of those decisions—I say this subject to correction—where the public authority is not an authority set up by the parliament of one of the signatory states which renders services, or sometimes goods, to the public. I am not seeking to substitute a definition. I am only concerned with what is going to happen with this Bill, which is a domestic Bill.
"Public authority" is defined in Clause 6(3)(c) as,any person certain of whose functions are functions of a public nature".The noble Lord, Lord Williams, said—I usually agree with him, whether or not it is convenient to do so—that what is a public authority is a matter for the decision of the court in each particular case. I think he is right. That is not in this context a satisfactory or certain way of importing a law of privacy by the back door. For that reason alone I would be disposed to support the amendment of my noble friend Lord Wakeham, but there are other reasons too which my noble friend has put forward which I hope will attract the support of the Committee.
§ Baroness Williams of Crosby
Perhaps I may make a brief intervention in the debate which has been, on most parts of the Bill, obviously and quite properly dominated by voices from the legal profession. I speak as someone who in a turgid part of my youth was a tabloid journalist. I also speak as someone who has had some part in various aspects of the media. It may be helpful to have just one voice from that quarter. I do not wish in any way to detract from the tremendous contribution that the noble Lord, Lord Wakeham, has made to upgrading the standards of the media in saying that I think there is a genuine problem here. The problem is one that can only be met by a balance between Articles 8 and 10—the two sets of principles: those protecting privacy and those protecting the freedom of the media. Both sets of principles are crucial in a democratic society.
It is at least arguable that the balance may have gone a little far from Article 10 to Article 8. In other words, we are not now sufficiently recognising the real public reaction to intrusions on privacy. The noble and learned Lord the Lord Chancellor, in an article in the Daily Mail a few days ago, pointed out that in a recent poll 91 per cent. of the public indicated that they thought there should be greater protection of privacy. That is very much the public mood. It was, as my noble friend Lord Lester of Herne Hill said, affected very much by what was seen by many as something of a feeding frenzy over the whole of the news concerning the death of the Princess of Wales. One sees spreading strongly throughout decent public opinion a sense that the intrusions have gone too far.
Perhaps I may give one of a common set of examples which anyone who has been in public life knows very well. I refer to the intrusion into the lives of the children and families of people in public life. All of us who have been in public life recognise that we need thick skins 780 and that we ought not to whinge and complain about attacks in the press on ourselves. But it is of a very different order of both pain and unfairness when such intrusions are directed against one's spouse, one's children or one's parents. I speak as someone who, in respect of my parents and my children, has suffered from such intrusions, to the great distress of people not able to defend or protect themselves. Indeed, I speak perhaps more lightly as someone who found a press photographer sitting in a drugs cupboard of the Middlesex Hospital at seven o'clock in the morning at a time when I had broken my leg and he wished to take a photograph of me, presumably in some state of agony. We have to bear in mind that there is a tendency for the press—I refer to the press much more than to television or radio—to take to the outer limits of what is possible the endless pursuit of ratings and circulation.
The noble Lord, Lord Wakeham, has made out a strong case and has made a great contribution to the Press Complaints Commission. However, as my noble friend Lord Lester pointed out, the sanctions against misbehaviour are still very slight indeed. The issue of what sanctions might be taken is very important. In my view, the single greatest danger to the freedom of the press, which I care about as much as any other Member of the House, comes from growing public repudiation of what they regard as adequate standards. It would be a protection for the press to be faced with trying to strike a balance between Articles 8 and 10—the genuine right to privacy as compared with the absolute necessity of having the freedom of expression.
One of the consequences of this matter is to drive out of public life altogether some of the best people that noble Lords and, speaking personally, I myself know. They refuse to run for Parliament, they refuse to be considered as Ministers and they refuse to enter politics because, out of their own decency, they are not prepared to put their friends and relatives at such risk. That is a consideration which anyone who cares about democracy must take into account.
§ 5 p.m.
§ Lord Callaghan of Cardiff: I
am encouraged by what the noble Baroness, Lady Williams of Crosby, has just said. I also wish to put in a word as a layman. I have listened carefully to the debate and tried to understand some of the legal points, but I do not understand them all. It seems to me that there is another principle here apart from the privacy of the individual on the one hand and the freedom of the press on the other. Both of them are important. As I understand it, an attempt has been made to keep a balance in the drafting of this Bill.
But there is a third principle which has not been mentioned this afternoon, as far as I can make out, and that is the principle of accountability. If there is a criticism of the press which I believe is generally held at the moment, it is that while everybody in a democratic society is accountable, it seems to laymen—I have no objection to the course that the press are pursuing in general because they have done a wonderful job—that there is no accountability except to the noble Lord, Lord Wakeham. I have every admiration for him, 781 but I do not believe when one matches that against the accountability that Parliament has or that which the lower courts have to the higher courts, it begins to measure in the balance.
If I thought that there was a greater degree of accountability in the press, I would be more impressed with the argument. Until that accountability is held in balance—as I understand it, the impression is that the Bill has been drafted in such a way that it is held in balance and that there is a proper balance between the right to privacy and the freedom of the press—I do not feel convinced and I would not be able to support the noble Lord.
§ Lord Wilberforce
The noble Lord, Lord Wakeham, has rendered a very valuable service in drawing attention to the difficulties which exist in the convention at the present time. He speaks with his great expertise and experience as regards the press. So far the debate has tended to concentrate on that aspect of the matter. I do not believe that we ought to allow the debate and discussion on the Bill to be completely hijacked by questions which are no doubt of great interest, but which relate to the press, the newspapers and the media. There are other aspects in the convention of great importance to which we have to have regard. I am personally more concerned with them and I propose to address my remarks to them.
My concern relates to the relation and difference between public authorities on the one hand and private persons on the other. There is nothing between the Government and myself, or between them and the noble Lord, Lord Wakeham, on that matter. It has been made perfectly clear by the noble and learned Lord in his speech at Second Reading and also by the noble Lord, Lord Williams of Mostyn, in his winding up speech on that occasion, that the Bill is aimed entirely at public authorities and not at private individuals. It is not meant to introduce a tort of privacy. As regards matters relating to the press, they are to be left to self-regulation and others to the common law.
There are certain difficulties in that regard which exist in the Bill. As the noble Lord has said, his amendment covers the same ground as that which I have attempted to cover in Amendment No. 60. Indeed, if I had come earlier this morning I would have agreed to my amendment being grouped with Amendment No. 32. They cover the same ground and deal with the same problem, but in a slightly different technical way.
The problem is simply this. It is perfectly true that Clauses 6, 7 and 8 of the Bill deal only with public authorities and not with private persons: indeed, nothing in the Bill deals with private persons. The problem arises when one turns to the courts. It is said in Clause 6 that a court is to be treated as a public authority. The noble Lord deals with the problem I am now discussing by taking courts out of that definition in cases where only private litigants are involved.
There is a problem. A case is brought in court between an aggrieved person and a person who is not a public authority. At the moment I am not discussing whether any particular person is or is not a public 782 authority. That is a problem to one side which we shall come to later. We assume that he or she is not a public authority. A remedy is asked for or an injunction of some kind against the private person. It may be a journalist or a paparazzo (if that is the right singular) or against any other wrongdoer. If the claim is based on the convention the court ought to say that there is nothing wrong under it because the convention only makes it unlawful to act in that particular way if one is a public authority. The case should be thrown out.
But there may be cases where an attempt is made to carry the dispute further and to say, "You, the court, have acted incompatibly with the convention"—those are the vague words that are used—if one either has or has not granted a particular remedy. I am very anxious to ensure that there is such a case that courts are not exposed to further proceedings against them for acting unlawfully and incompatibly with the convention.
Of course, we know that damages cannot be given against the court. Clause 9 states that one has to go by way of appeal or judicial review. The wording of the noble Lord's Amendment No. 32 does nothing more than to say that in such a case the court is not to be treated as a public authority and that remedies are not to be granted against it as if it were a public authority. There is nothing in that which is contrary to the spirit of the Bill or which prevents the common law and the courts from developing a law of privacy. I am not afraid of that at all and in that I differ rather from the noble Lord, Lord Wakeham. There is nothing to prevent the issue of privacy being developed at common law or the courts acting in a perfectly normal way, with appeals and so forth, so long as they are justified.
In so far as proceedings are based on this Bill, I am only concerned that, under the convention, in cases where private persons are concerned, there should not be a whole chain of judicial reviews, appeals and so forth on the ground that the court has acted incompatibly with the convention. I am perfectly happy to support the noble Lord's amendment. I repeat that it does not deal specifically with the press, but with a general problem of public versus private. My amendment comes to the same thing. I take no position whatsoever on the enlarged or more specialised dispute so far as it relates to the press.
§ Lord Lester of Herne Hill
Before the noble and learned Lord sits down, I shall be very grateful if he can answer one question arising from his very important speech. Clause 13(2) specifically reserves the right to rely on the convention in cases where a person is not seeking a right against a public authority. The noble and learned Lord, Lord Wilberforce, will remember a case in which he gave the leading speech. I believe it was called Baron Cawley's case and it was some years ago. He referred to the convention as a source of public policy in deciding whether a restrictive covenant based on religious exclusion in a will between private persons was or was not against public policy.
From what the noble and learned Lord, Lord Wilberforce, said, I am not clear whether he is seeking to prevent the convention from being relied on in ordinary private law proceedings, say, involving the 783 contours of the law of libel or whether a restrictive covenant in a will is against public policy. I am therefore quarrelling with Clause 13(2).
§ Lord Wilberforce
I am much obliged to the noble Lord, Lord Lester, who as usual has raised a very relevant point. Clause 13 has already been discussed and does nothing more than say that you may rely on a convention right without prejudice to any other right. I am perfectly happy to leave intact—I thought that I had made it clear that I wished to leave intact—any right of anybody to go under the common law. If they are going under the common law, they are faced with the perfectly normal position that there is in existence an international convention to which one must have regard and if any statute is involved, it has to be interpreted. I would certainly not wish to exclude the courts from relying on interpreting any law which exists consistent with the convention, as is stated in Clause 2. I do not see any difficulty relating between actions under the convention and actions not under the convention. I want only to ensure, in so far as an action is brought under the convention relying on Clauses 6, 7 and 8, that a court is not to be treated as liable to proceedings under the convention by a private individual.
§ 5.15 p.m.
§ The Lord Chancellor
I hope that I can persuade the noble Lord, Lord Wakeham, and the Committee that it is neither necessary nor right to go down the road proposed in these amendments.
We believe that it is right as a matter of principle that organisations which are, on a reasonable view and as decided by the courts, exercising a public function should be so treated under the Bill and should have the duty, alongside other organisations having public functions, to act compatibly with the convention rights in respect of those functions. That means (among other things) that, in doing what they do, they should pay due regard to Article 8 (on privacy) as well as to Article 10 (on freedom of expression, which includes also the freedom of the press).
We also believe that it is right as a matter of principle for the courts to have the duty of acting compatibly with the convention not only in cases involving other public authorities but also in developing the common law in deciding cases between individuals. Why should they not? In preparing this Bill, we have taken the view that it is the other course, that of excluding convention considerations altogether from cases between individuals, which would have to be justified. We do not think that that would be justifiable; nor, indeed, do we think it would be practicable. As the noble and learned Lord, Lord Wilberforce, recognised, the courts already bring convention considerations to bear and I have no doubt that they will continue to do so in developing the common law and that they have the support of the noble and learned Lord in making that use of the convention. Clause 3 requires the courts to interpret legislation compatibly with the convention rights and to the fullest extent possible in all cases coming before them.
784 The noble Lord, Lord Wakeham, properly referred to my letter to him of this morning. I think it preferable, and for the assistance of the Committee since it has already been referred to, that I should read it out in full. The first paragraph refers to the relevant paragraph from counsel's opinion, with which the noble Lord, Lord Wakeham, supplied me, and after referring to that, my letter states:I have been giving further thought to whether the Press Complaints Commission (PCC) is a 'public authority' under the Human Rights Bill.The authorities which [counsel] cites are not, as I said, precisely in point because they are judicial review cases. But I do agree that they show a disposition on the part of the Courts to regard the PCC as a 'public authority'. On reconsideration, therefore, of the relevant provision of the Bill: is the PCC a 'person certain of whose functions are functions of a public nature'? (Clause 6 (3)(c)). I now tend to think that … the press might well be held to be a 'function of a public nature', so that the PCC would be a 'public authority' under the Human Rights Act.I do, however, think that, for the reasons I gave when we met, this possibility is an opportunity, not a burden, for the PCC. The opportunity is that the courts would look to the PCC as the pre-eminently appropriate public authority to deliver effective self-regulation, fairly balancing Articles 8 and 10. The Courts. therefore, would only themselves intervene if self-regulation did not adequately secure compliance with the Convention.I repeat that when the press has solid grounds, in the public interest, for publication, even where an individual's privacy is invaded, it will not go down to interim injunctions: in just the same way as it does not go down to injunctions, in libel cases, when it says that it will justify.I look forward to the debate in Committee on Monday".I want to tackle the concerns of the press directly. They are essentially twofold. First, will the courts develop a law of privacy, and, secondly, is the PCC itself to be regarded as a public authority which should act consistently with the convention? First, as I have often said, the judges are pen-poised, regardless of incorporation of the convention, to develop a right to privacy to be protected by the common law. This is not me saying so; they have said so. It must be emphasised that the judges are free to develop the common law in their own independent judicial sphere. What I say positively is that it will be a better law if the judges develop it after incorporation because they will have regard to Articles 8 and 10, giving Article 10 its due high value, which the strenuous efforts of the noble Lord, Lord Lester of Herne Hill, in the courts of this country and of elsewhere have contributed to ensuring that it enjoys.
I believe it to be well recognised, including by the press, that Parliament, if invited to do so, might well pass a tougher statute outlawing invasion of privacy than the judges are likely to develop having regard to Articles 8 and 10, balancing them and giving each its due value and giving Article 10 its due high value. I would respectfully suggest that the noble Lord, Lord Wakeham, had his tongue somewhere in his cheek when he said that he would have preferred the Government to introduce a privacy statute, although, of course, he would have opposed it in principle. This Bill does not impose any statutory controls on the press by a back-door privacy law. I remind the noble Lord, 785 Lord Henley, that the previous government promised a White Paper on privacy, a promise which they did not deliver.
I would not agree with any proposition that the courts as public authorities will be obliged to fashion a law on privacy because of the terms of the Bill. That is simply not so. If it were so, whenever a law cannot be found either in the statute book or as a rule of common law to protect a convention right, the courts would in effect be obliged to legislate by way of judicial decision and to make one. That is not the true position. If it were—in my view, it is not—the courts would also have in effect to legislate where Parliament had acted, but incompatibly with the convention. Let us suppose that an Act of Parliament provides for detention on suspicion of drug trafficking but that the legislation goes too far and conflicts with Article 5. The court would so hold and would make a declaration of incompatibility. The scheme of the Bill is that Parliament may act to remedy a failure where the judges cannot.
In my opinion, the court is not obliged to remedy the failure by legislating via the common law either where a convention right is infringed by incompatible legislation or where, because of the absence of legislation—say, privacy legislation—a convention right is left unprotected. In my view, the courts may not act as legislators and grant new remedies for infringement of convention rights unless the common law itself enables them to develop new rights or remedies. I believe that the true view is that the courts will be able to adapt and develop the common law by relying on existing domestic principles in the laws of trespass, nuisance, copyright, confidence and the like, to fashion a common law right to privacy. That was more or less what the noble and learned Lord, Lord Hoffmann, said in an important public lecture. They may have regard to the convention in developing the common law, as they do today and as the noble and learned Lord, Lord Wilberforce, says it is right that they should.
The experience of continental countries shows that their cautious development of privacy law has been based on domestic law, case by case, although they have also had regard to the convention. I repeat my view that any privacy law developed by the judges will be a better law after incorporation of the convention because the judges will have to balance and have regard to Articles 10 and 8, giving Article 10 its due high value. What I have said is in accord with European jurisprudence. In Winer v. United Kingdom in 1986 the European Commission on Human Rights concluded that because of Article 10 it did not consider that the absence of an actionable right to privacy under English law was a lack of respect for the applicant's private life.
I believe that effective self-regulation is the way forward. The noble Lord, Lord Wakeham, was good enough to acknowledge that as a member for some years of the Appointments Commission to the Press Complaints Commission I had assisted in self-regulation and its governance. The PCC should embrace and welcome the possibility that it may come to be regarded as a public authority under the Bill and expected to deliver convention rights. A beefed-up PCC, as the noble Lord, Lord Lester of Herne Hill, suggests, perhaps with the 786 power to award compensation in appropriate cases—a power that the PCC lacks today—could become the general arbitrator in practice in these cases provided it did its job strongly and well.
The courts may well develop a law of privacy, not because the Government require them to do so but because they will be exercising their freedom to do so in their own independent sphere. But if there were effective self-regulation a law of privacy developed by the judges would hardly ever have to be invoked against the press.
It is wrong for noble Lords to allow this debate to focus exclusively upon a privacy law that applies only to the media. I emphasise to the noble Lord, Lord Wakeham, that the right to privacy is a basic human right. That right can be infringed by a neighbour, an intrusive commercial agency, private investigators, the police and all manner of other people. The little man needs protection against these bodies. It is primarily these malpractices without a shred of public interest to justify them that will be in the sights of the courts if they move to develop a right to privacy as part of the common law. A well regulated press which is essential to a free society has nothing to fear and everything to gain.
I tend to believe that the important function of the PCC to adjudicate on complaints from the public about the press may well be held to be a function of a public nature, so that, as I said in my letter, the PCC might well be held to be a public authority under the Human Rights Bill. But I believe that this is an opportunity, not a burden on the PCC. The opportunity is that the courts would look to the PCC as the pre-eminently appropriate public authority to deliver effective self-regulation fairly balancing Articles 8 and 10. The courts therefore would have to intervene only if self-regulation did not adequately secure compliance with the convention. The message for the press is plain: strengthen self-regulation and strengthen the PCC under its eminent chairmanship.
I do not believe that the courts will grant temporary injunctions where there are solid grounds for the press to maintain that they have public interest grounds to publish something, just as the courts do not restrain libels where the press intends to justify them. I say to the press that its salvation as it sees it can be in its own hands.
The noble Lord has rendered an important service to the House in tabling the amendment. It raises important issues which deserve time to be devoted to them, as has happened, for them to be fully ventilated and discussed. I have given as full a response as I am able to the amendment tabled by the noble Lord. I am sure that he and the interests he represents will consider carefully what I have said, just as I will consider carefully what he and other noble Lords have said. I do not close the door to any proposal. The noble Lord, together with some of his colleagues, has had one meeting with me already. He knows that my door is open for further discussion. But I believe—I agree with every word that the noble Lord, Lord Lester of Herne Hill, has said on this subject—that the door is really open to the PCC, which the noble Lord chairs, to strengthen self-regulation so that the courts will be satisfied in all cases concerning the press that effective remedies are 787 provided by the PCC and they amount to compliance by the United Kingdom with its obligations under the convention without any need for intervention.
For those reasons, I invite the noble Lord, Lord Wakeham, to seek leave to withdraw his amendment.
§ Lord Wakeham:
I am grateful to the noble and learned Lord the Lord Chancellor for his substantial reply. It must be studied carefully, and that I shall certainly do. In a debate of this kind one tends to clutch at contributions from non-lawyers. I very much agreed with the remarks of the noble Lord, Lord Callaghan, although he did not intend to speak in support of my amendment. I am not here to speak for the press. I am independent of the press. I am concerned to secure an effective remedy for all the people who complain to me, 95 per cent. of whom are ordinary citizens of this country, not celebrities or famous people with large resources. I am concerned about the invasion of their privacy. Further, I am concerned that the remedies which may be inadequate at the moment under self-regulation will disappear and will be replaced by legal remedies which these people will be in no position to invoke because of the thousands of pounds it will cost to take newspapers to court.
However, the noble and learned Lord has made a number of substantial points and I should like to study them carefully. I very much appreciate his kind offer not necessarily to visit him again but to leave open the door. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 33 not moved.]
Lord Williams of Mostyn moved Amendment No. 34:
Page 4, leave out line 7 and insert ("or tribunal").
The noble Lord said: Amendment No. 34 is a technical amendment which removes the reference in Clause 6(3)(b) to a tribunal:
which exercises functions in relation to legal proceedings".
This qualification is, on reflection, unnecessary because Clause 21(1) defines the meaning of "tribunal" for the Bill generally as:
any tribunal in which legal proceedings may be brought".
§ The effect is that Clause 6(3) as amended will refer simply to "a court or tribunal" as included within the meaning of "public authority", and "tribunal" will attract the definition in Clause 21(1). I beg to move.
§ On Question, amendment agreed to.
§ 5.30 p.m.
§ [Amendment No. 35 not moved.]
Lord Henleymoved Amendment No. 36:
Page 4, leave out lines 9 and 10 and insert—("(c) a local authority,
- (d) the police,
- (e) immigration officers, and
- (f) prisons,").
§ The noble Lord said: This amendment is grouped with Amendments Nos. 38, 40 and 44. I do not wish to speak to Amendments Nos. 40 and 44 in the name of the noble and learned Lord, Lord Simon of Glaisdale, but I shall say a few words about Amendment No. 40 in the name of my noble friend Lady Young.
§ Before we broke for the Statement to be repeated earlier this afternoon by the noble Lord the Lord Privy Seal I asked for a brief explanation of the definition of a public authority. We can return to that matter with this group of amendments. For my part, these are very much probing amendments because I seek reassurances and explanations, in particular explanations of the Pepper v. Hart sort, from the noble and learned Lord the Lord Chancellor when he comes to respond.
§ The noble and learned Lord will see that Amendment No. 36 takes words from the White Paper. We have done that in order to elicit further advice and information from the noble and learned Lord as to what he means by "public authority".
§ I am still somewhat confused. I hope that I am beginning to see what the clause provides but I do not understand how that will be interpreted. As the noble and learned Lord explained, government departments are included in the definition. That is straightforward and I understand that. He then gave the example of Railtrack, a private body exercising public functions. We now hear that as a body the Press Complaints Commission could be included. As the noble and learned Lord will see from Amendment No. 40 in the name of my noble friend Lady Young, there are concerns as to whether religious organisations, denominations or Churches could be included. Again, we seek further advice from the noble and learned Lord in that regard. I do not know whether the noble and learned Lord has seen correspondence from the Christian Institute, because that organisation certainly has some concerns that it may be included as a public authority when exercising certain functions.
§ The purpose behind the amendments is to probe a little further as to what is meant by a public authority and where the line is to be drawn. I hope that the noble and learned Lord will be able to explain that in as simple language as possible so that lawyers and non-lawyers in the Chamber can understand and get a clear grip of the Government's intention behind the words that we see in Clause 6. I beg to move.
§ The Deputy Chairman of Committees (Lord Murton of Lindisfarne)
In proposing this amendment, I should point out that if it were to be agreed to, I should be unable to call Amendment No. 37 because of pre-emption.
§ Lord Simon of Glaisdale
Amendment No. 38, which is in my name, has been grouped with Amendment No. 36. I agree respectfully that in the context of this Bill there must be a definition of a public authority. It has been extremely widely construed in different contexts by the courts in various cases.
789 Before I speak to my amendment, perhaps I may say that earlier I rather rudely associated my noble and learned friend the Lord Chancellor with Mephistopheles. Having heard his recent masterly speech on the last amendment, I feel rather ashamed of that.
The noble Lord, Lord Henley, said that in framing his amendment he has used the words of the White Paper. I claim to have done even better because I have taken the definition of a public authority from two Bills, both of which were Bills of a Labour Government. They were race relations Acts and were therefore in the very sphere of human rights, with which this Committee is concerned.
My general aim in supporting this Bill has been to try to strengthen it to make sure that we really are bringing home convention rights. The definition which I proffer, which, as I say, is taken from race relations Acts, states,any person concerned with the provision to the public or a section of the public (whether for payment or otherwise) of any goods. facilities or services".There is another advantage in that formula; namely, that it has been subject to considerable explanation and interpretation in the courts. I hope that it will be acceptable to my noble and learned friend and that he will not revert to his mephistophelean role.
It may be for the convenience of the Committee if I speak to Amendment No. 40. I have two reasons for tabling the amendment. The first is to follow from what my noble friend Lord Henley said and to probe further in relation to the definition of a public authority.
Unlike almost every Member of the Committee taking part in the debate, I am a lay person and I think it important that one should try to understand what the Bill means. To that end, I looked carefully again at the White Paper which of course, in the second part of it, goes into considerable detail about the definition of a public authority, although it states:The definition of what constitutes a public authority is in wide terms".I notice that the point about the definition of a public authority was raised by a number of noble Lords on Second Reading. I much regret that I could not be here on that occasion. However, the noble Lord, Lord Borrie, who is in his place, raised that issue, as did the noble and learned Lords, Lord Donaldson of Lymington and Lord Wilberforce. Therefore, there is concern about the definition.
I listened carefully to what the noble Lord, Lord Williams of Mostyn, said in replying to one of the earlier debates this afternoon. If I understood him correctly, he said that one definition could be recognised quite easily and put in laymen's terms—although I may not he right, I would say that it is an authority set up by statute which one can understand as a public authority. I find it more difficult to understand that a privatised industry is a public authority. It rather reminds me of the kind of essay that I was once asked to write as an undergraduate in philosophy. But I have no doubt that there is an explanation for that. But on the face of it it is quite a difficult argument to accept.
790 I do not quite understand the definition given either in the Bill or in the White Paper. But there are many people who think, for example, that the Church of England is a public authority; that in certain cases, charities are public authorities. If that is the case—and it would be helpful to know whether it is—it could lead to decisions of the Church being challenged in the courts under the convention. That might involve a judicial review. Instances which have been put to me include who can and who cannot marry in church, who can or cannot be a godparent. It has even been suggested to me that a PCC which decided that it did not want to have a woman priest would be falling foul of all that, and could not decide that that was what it wanted.
In regard to a charity, let us take, for instance, a hospice dealing with terminally ill adults or children. Let us suppose it is partly government funded. Does that make it a public authority, and should it be obliged to accept, for instance, information about voluntary euthanasia? Those are not entirely imaginary issues. They are the kind of issues that could confront ordinary people trying to go about their business as they have to from day to day.
Let us look again at a Church school. Religious denominations, and Churches generally, have a freedom today to employ certain staff who adhere to a particular faith. Under this arrangement could employment rights be developed so that there could be conflicts with regard to employing a practising homosexual who might be able to claim that he was being discriminated against if he were sacked from the staff of a Church school or not employed in the first place?
The whole issue raises areas where there could be a conflict of rights: the right of the freedom of the individual; the rights of the organisation (its religious convictions). I am not clear which right takes precedence. Whether it is the noble Lord, Lord Williams, or the noble and learned Lord the Lord Chancellor who is to reply to the debate, I should be glad to hear whether the Church of England is a public authority or, indeed, whether any religious organisation is a public authority; whether a hospice or a charity is a public authority; or whether a school with a religious foundation or a trustee is a public authority. Those are the organisations which I have put down in my amendment.
In the charity world an enormous number of organisations are partly publicly and partly privately funded. Are they thought to be public authorities? What about those which are entirely privately funded? Is the argument that if it is a private organisation which at times exercises a public function, it is a public authority, and who knows?
If I understood the argument correctly, we need not worry about any of that, because there is a second definition. If I understood him correctly, the noble Lord, Lord Williams of Mostyn, said in relation to a public authority that there are those who understand what a public authority is. He said there are those who have part of their functions as a public authority. Perhaps he will explain the matter further, but how does one know whether part of one's functions is public unless that is defined somewhere? If a matter is subject to litigation it 791 is to be interpreted by the judges. I hope that he will forgive me if I have misunderstood him, but I think that he said that this was all against a background of changing social conditions.
That is worrying, because the convention is drawn in general terms. People now think differently from how they thought 50 years ago. For all I know, in 30 years' time they will think differently again. The matter is open to all sorts of interpretations. I do not understand how many organisations will enjoy the kind of freedom to act as they do now under the Bill. I should be most grateful for an explanation.
§ Baroness Williams of Crosby
Before the noble Baroness sits down, perhaps in this brief moment between lawyers I may press her on something she said about which I am a little confused. Is not the EOC already able to intervene in an organisation that, for example, refuses employment to someone on grounds of race, sexual orientation, or whatever it may be? I am not clear what new matters the European convention would bring to this beyond what the EOC, the CRE and other such bodies can already do.
My other question relates to Churches. Could she say what happens, for example, in the case of a voluntary aided school? In a sense it is clearly a public authority. It is part of the public system of education, but it may stem from a religious foundation. What would be the consequence therefore in dividing the responsibility of schools were the amendment to be accepted?
§ 5.45 p.m.
Voluntary aided schools form one of the groups about which I was speaking. As I understand it, those schools have considerable freedom to select on religious grounds. A Catholic school would want a Catholic head. I am not clear whether that right would remain under all of this. That is one of the points that must be cleared up. I am not a lawyer. I cannot pretend to interpret what is happening. I am merely asking the questions. These are serious questions. A governor is someone like myself trying to cope with something which is complicated.
Of course I recognise equal opportunities and other similar legislation, but the points about which I was thinking related to the Church. Let us take marriage, for instance. Is the Church allowed to say that it will not, as it were, "marry" a homosexual couple? That is the kind of thing that the Church should be able to decide. Will that be allowed? Can the Church be overruled because it is a public authority? There are many cases—I have mentioned just a few—where there could be difficulties, and a conflict of rights might arise: the rights of the homosexual as opposed to the rights of the Church. I do not know which would have dominance. This is a real point. I am seeking clarity on this matter, particularly with regard to what constitutes a public authority.
§ Lord Campbell of Alloway
It is a totally fair point. I do not know. I do not suppose many lawyers know. It all stems from "family". When the convention was 792 drafted, the concept of the "family" was different from what it is today. The concept of the "family" is different as between different states. It is a different concept among members of the same state. If one now has this homosexual business—I do not understand it and I do not think many people do—and one has, say, a pair of lesbians who are living together in perfect amity and have done so for a long time, I do not suppose that they are a family, but I do not know. If they have some sort of insemination and have a child, does that make them a family? If they adopt a child, does that make them a family? I am not asking these questions to be tiresome, but just to support my noble friend, because I do not really have a clue as to what the answer to all this is.
§ Lord Lester of Herne Hill
We are now dealing with an important set of amendments. I should like to speak to Amendments Nos. 36, 38 and 40 and make one or two introductory remarks before I turn to each of them. The drafters of the Bill have wisely included a broad, inclusive definition of what constitutes a public authority. They have done so because it is only possible on a case-by-case basis, looking at the particular body, the nature of the functions and the circumstances in which they are discharged, for the courts to come to a conclusion as to whether the activity falls on the side of a public function.
It is not a new problem. Indeed, the courts have been seeking to distinguish between those bodies that are subject to the supervisory jurisdiction of the courts in judicial review and those which are not for a number of years. By now, they have developed clear and coherent criteria of a general kind to decide which side of the line a particular body comes within. Therefore, I entirely agree with the need for a broad and inclusive definition rather than some kind of exhaustive list.
One noble Lord referred to the problem of privatised industries. It is clear from the case law of the European Court of Human Rights that, where a body that is private in form is performing a function that would otherwise be performed by a public authority, there would be international liability if that body does not comply properly with the convention. Perhaps we can imagine, for example, the privatisation of the Prison Service. It would be unthinkable if a body which was private in form but public in function could escape liability under the convention.
§ Lord Henley
As a matter of interest, can the noble Lord say whether that would mean that in a former Communist state, where everything was in the public sector, everything would therefore be a former public sector body, whether or not we would consider it to be totally private?
§ Lord Lester of Herne Hill
Even in a Communist state there are individual human beings who do things to each other without doing so in public clothing. Therefore, even in a Marxist totalitarian state it would not be the case that everything that was done by individuals would fall within the scope of the convention or the international covenant.
793 I was seeking to explain that my understanding is that in drawing the line between what is and what is not a public authority, the courts have developed clear principles in the context of judicial review in England, Scotland and Northern Ireland. In doing so, they have held, for example, that the functions of the Chief Rabbi acting in interpreting Rabbinical law fall plainly outside the scope of judicial review. Similarly—and we discussed this on the first day of Committee on 18th November in connection with another amendment—it is quite clear that the decisions of the Synod, or those of the bishops of the Catholic Church, or, indeed, those of any other church organisation or body, would not normally fall within the scope of a public authority.
The problem about homosexual couples, as raised by the noble Lord, Lord Campbell of Alloway—
§ Lord Campbell of Alloway
That is just the problem. I wonder whether the noble Lord can help us in that respect. How do we define the problem that he has just demonstrated? It is a difficult one.
§ Lord Lester of Herne Hill
The question to be asked is whether the functions performed by the person concerned are or are not functions of a public nature. That is exactly the same kind of question as arises all the time under Order 53 of the Rules of the Supreme Court and its counterpart under the Scots rules for judicial review. One has the broad question raised which has to be answered by the courts on a case-by-case basis.
The noble Lord, Lord Campbell of Alloway, raised the problem as to whether a ban on marrying homosexual couples would incur liability on a Church body which failed to do so. My answer would be that the Church body would not itself be liable. If the UK were to prevent marriages or the recognition of permanent unions of homosexual couples, that might or might not give rise to liability under Article 8 of the convention on the international plane. But in my opinion the Church itself would not be liable as a public authority.
I turn now to the specific amendments. Amendment No. 36 would create a yawning chasm between what is required by the convention and what would be done by the Bill. Under the amendment the only public authorities obliged to comply with convention rights would be local authorities, the police, immigration officers and the Prison Service. There can be no justification for excluding central government, a Scottish parliament, a Welsh senate, regional authorities and the wide range of government, quasi-government and other bodies performing public functions.
I turn now to Amendment No. 38 tabled in the name of the noble and learned Lord, Lord Simon of Glaisdale. This amendment seeks to borrow the language of Section 29 of the Sex Discrimination Act 1975 in defining public authorities and public functions. The snag in that respect is that such statutory language was interpreted by a majority decision of the House of Lords in Re Atnin  2AC 818 as confined to so-called "marketplace" activities. It would, therefore, have the reverse effect of what is intended by the noble and 794 learned Lord. As interpreted—in my respectful opinion wrongly but, nevertheless, it represents the law of the land—by a majority of the Law Lords (the noble and learned Lord, Lord Scarman, and, I believe, Lord Salmon dissenting), that language would have the very opposite effect in that it would have the result of using language which is only concerned with the marketplace, as being so held by the Law Lords, to define what is a public authority.
Amendment No. 40 seeks to immunise from the duty to comply with convention rights religious organisations, hospices, voluntary-aided religious schools and religious charities. To the extent that any of those bodies were to exercise their powers in breach of convention rights, and to do so in a way that was characterised as a public function, it is hard to see why they should be immune from liability. Having said that, I find it difficult to conceive of circumstances in which any of those bodies would be directly liable as a public authority, with the possible exception of those in charge of voluntary-aided schools, if, for example—and this would be inconceivable—they were to exclude people of a particular colour or race and interfere with Article 2 of the first protocol to the convention, read with Article 14, in a context where there was no domestic remedy, which in fact there is.
However, I should have thought that even in respect of those bodies such matters can be safely left to the courts to consider in the light of Strasbourg case law and the facts of the case. I do not know of any decision that has been made by the courts in this country about what is a public authority which has created any difficult problem. Therefore, to sum up, I consider that the broad inclusive definition marches properly with the courts' functions. For the reasons that I have given, I believe that any attempt to be exhaustive and to be entirely prescriptive would be a mistake.
§ The Lord Bishop of Exeter
I shall speak to Amendment No. 40 in support of the remarks made by the noble Baroness, Lady Young, especially as regards her plea for clarity and definition. I very much regret that our timetable in this Chamber has given the Church of England very little time to scrutinise the legislation. However, some anxiety was expressed in that other place—the General Synod—this afternoon on the matter. We shall try to continue to do so.
I should like, in particular, to raise the point about the fast-track procedure. If a Minister believes that there is a conflict between the decisions of the General Synod, which are in legislative form—the law of the land—and the convention, he or she can amend the measures of the General Synod by order. The measures of the Synod are passed by Parliament. But in this case a Minister will be able to amend Synodical legislation by order without consulting the Synod. I believe that we shall find this unacceptable and shall want to continue to scrutinise the legislation in its further stages.
I assure the Committee of the determination, certainly of the established Church, to improve its procedures on accountability. I am myself a member of a working party that is seeking to revise the ecclesiastical jurisdiction measure of 1963 which has been found in 795 practice to be an unwieldy measure. We are trying to improve the whole process of accountability and discipline of the clergy. But having said that, I make the practical point that there is a necessity surely to avoid legislation that becomes unworkable because of lack of finance. This is where Churches differ from other public bodies, many of which can draw upon taxes to create the necessary machinery for dealing with the kind of procedures envisaged in the convention. However, the finances of Churches are almost entirely voluntary. The people in the pew would finance the very procedures by which they could make complaints. That may not work well in practice. I support the plea of the noble Baroness, Lady Young, for greater clarity and definition.
§ 6 p.m.
§ Baroness Carnegy of Lour
I have listened to the discussion carefully as a lay person who does not know an enormous amount about the subject. Will the noble and learned Lord the Lord Chancellor in his reply make it plain to the Committee how a body knows, under the Bill, whether it is liable to be caught by Clause 6 or not? That is the critical question: how a body which is not easily understood to be a public authority knows whether the Bill applies to it or not.
§ The Lord Chancellor
I am rightly reminded by the noble Baroness, Lady Young, that lay people are entitled to understand Acts of Parliament. I entirely agree. I am mindful of the Shavian maxim that professions are a conspiracy against the laity. Therefore I shall endeavour not to participate in that conspiracy but to make matters as clear as I can.
I am urged by the noble and learned Lord, Lord Simon of Glaisdale, not to don my mephistophelean hat. The problem is that the noble and learned Lord regards me as Mephistopheles whenever I do not accept an amendment moved by him. As the noble and learned Lord will appreciate, there is a distinction between amendments which challenge the basic scheme and the structure of the Bill—which, if you believe in the basic scheme and the structure of the Bill, you will not accept—and amendments which one must consider with an open mind if, without doing violence to the basic scheme of the Bill, they offer collateral improvements. As regards the Government being willing to consider an amendment that was moved before this group as a possible collateral improvement, that was readily accepted by my noble friend Lord Williams of Mostyn.
The point about the Bill is that it has a coherent intellectual structure. It rests upon giving the strongest jurisdiction possible to the judges to interpret Acts of Parliament so as to make them, whenever possible, compatible with the convention. But then the Bill reflects the decision that when a court is unable to do that and make a declaration of incompatibility the Bill does not embrace the doctrine of implied repeal—which it could have done—and allow the courts to strike down Acts of Parliament; it goes down the route of a declaration of incompatibility which then leaves Parliament free, a sovereign Parliament which must decide whether to pass a remedial order or indeed a full 796 amending Bill. That is part of the central scheme of the Bill, as also is the definition of public authority which I shall endeavour to explain.
Clause 6(1) states,It is unlawful for a public authority to act in a way which is incompatible with one or more of the Convention rights".There are some bodies which are obviously public authorities such as the police, the courts, government departments and prisons. They are obviously public authorities under Clause 6(1). However, under Clause 6(3)(c) the term "public authority" includes,any person certain of whose functions are functions of a public nature".I ask the noble Baroness, Lady Young, to abstain from asking herself the question: is this a public authority just looking at the body in the round? That is what Clause 6(1) invites us to do. However, Clause 6(3)(c) asks whether the body in question has certain functions—not all—which are functions of a public nature. If it has any functions of a public nature, it qualifies as a public authority. However, it is certain acts by public authorities which this Bill makes unlawful. In Clause 6(5) the Bill provides:In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(c) if the nature of the act is private".Therefore Railtrack, as a public utility, obviously qualifies as a public authority because some of its functions, for example its functions in relation to safety on the railway, qualify it as a public authority. However, acts carried out in its capacity as a private property developer would no doubt be held by the courts to be of a private nature and therefore not caught by the Bill.
The noble Lord, Lord Lester, is right: we took a policy decision to avoid a list. I am appreciative that he supports our not having gone down the route of an exhaustive list. The disadvantage of a list is precisely the one identified by the noble Lord; namely, that it would be easy to regard it as exhaustive or to suggest that any non-listed body could be a public authority only if it was sufficiently analogous in its essential characteristics to a body that had qualified in the list. There are obvious public authorities—I have mentioned some—which are covered in relation to the whole of their functions by Clause 6(1). Then there are some bodies some of whose functions are public and some private. If there are some public functions the body qualifies as a public authority but not in respect of acts which are of a private nature. Those statutory principles will have to be applied case by case by the courts when issues arise. We think that it is far better to have a principle rather than a list which would be regarded as exhaustive.
On Amendment No. 40, 1 see no objection to the proposition that if any of the bodies listed exercise public functions they are caught by the convention save in relation to acts by them which are of a private nature. For example, I should have thought that the Church would have welcomed being bound by Article 8 which provides that,Everyone has the right to respect for his private and family life, his home and his correspondence".797 I urge the noble Baroness, Lady Young, to read the convention. Article 9 provides that,Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance".Paragraph 2 provides that,Freedom to manifest one's religion or beliefs shall he subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others".The first and true effect of the amendments moved by the noble Lord, Lord Henley, in the place of the noble Lord, Lord Kingsland, would be to remove paragraph (c) of subsection (3) of Clause 6. The result would be that it would fall to the courts to decide what was or was not a public authority for the purpose of the Bill in accordance with subsection (1) of the clause. However, for good measure the noble Lord threw in examples of bodies that he would be content to see treated as public authorities. As he acknowledged, he has drawn those examples on a selective basis from those mentioned in the White Paper. Next, however, the noble Lord offered the Committee some examples of organisations which he thinks should definitely be excluded from being regarded as public authorities. In fact once subsection (3) of the clause is deleted or replaced, the probability of the courts regarding organisations of this kind as public authorities becomes remote.
While the amendments in the name of Opposition spokesmen would restrict the application of the Bill, the amendments in the name of the noble and learned Lord, Lord Simon of Glaisdale, would extend it. He would include any person supplying goods or services to the public. The convention, I suppose, would catch window cleaners, jobbing joiners, the girl who keeps the window cleaner's accounts and the boy who delivers the flyers from the local restaurant. I think that that is far too broad.
The juxtaposition of the amendments whose effects point in opposite directions encourages me to believe that we have the balance right in Clause 6 as it stands. I suggest to the Committee that both sets of amendments should be resisted.
What we have sought to do in Clause 6 is to set out a principle: first, that the effects of Clauses 6 to 8 should apply in the first place to bodies which are quite plainly public authorities such as government departments; and, secondly, to other bodies whose functions include functions of a public nature, and therefore the focus should be on their functions and not on their nature as an authority. In the latter case the provisions of the Bill would not apply to the private acts of the bodies in question.
That is the principled approach that we have chosen. Another approach would have been to draw up lists of the bodies to which the Bill did or did not apply. But we rejected that approach as a matter of principle. In particular, there would be the difficulty of compiling such a list, the arguments about it, and the difficulty at the end of the day of preserving any coherent rationale 798 in such a list. The debate that we have had today strengthens me in the view that it was right as a matter of principle to go for a principle and not a list.
Against that background, there is not a great deal more that I wish to say about the particular cases cited. What is most obvious is that the lists could scarcely end where the Opposition have suggested that they might. I appreciate what the noble Lord, Lord Henley, said: that the amendments are put down primarily to probe. We agree of course that local authorities, the police, and so on, will be subject to the Bill. Any expression such as "public authority" is bound to cover them. But it is equally obvious that the list produced in the amendment does not delineate all the obligations that we have under the European convention which we seek to make justiciable by means of the Bill in our own courts. As to the bodies which noble Lords opposite would wish specifically to exclude, I think that they would be the first to agree, at any rate in private, that it would be extremely difficult to justify excluding those bodies, however worthy they are, and not others. Some of them I do not doubt carry out some functions which are functions of a public nature. It is possible that others do not. But we see no reason why bodies which carry out functions of a public nature should not be amenable to the convention rights as interpreted and applied by our own courts as they are already indirectly in Strasbourg unless, as I said, the nature of the act complained of is of a private nature.
Whatever interpretation might he applied to the expressions "public authority" and "public functions", I doubt whether anyone would go as far as the noble and learned Lord, Lord Simon. His amendment would shift the boundary an enormous distance at a single stroke. It does not need a Mephistopheles to see that. I cannot see any rationale in a society such as ours for regarding the fact of supplying goods or services as qualifying people to be treated as on a par with public bodies, or other organisations of at least a semi-public nature having regard to certain of their functions which will be of a public nature. It would be the smallest step from there, and perhaps more honest, to give the convention full horizontal effect, as it is sometimes called—that is, to regard the convention as applying to private individuals as well as to public authorities. I sense that the noble and learned Lord might not be too averse to that. But we think that that would be a step too far in a Bill which, I repeat, is designed to allow the convention rights to be invoked in this country by people who would have already a case in Strasbourg. I therefore respectfully suggest to those who moved the amendments to consider withdrawing them.
§ 6.15 p.m.
§ Lord Campbell of Alloway
Before the noble and learned Lord sits down, perhaps I may respectfully ask whether it is right that the answer to the right reverend Prelate would be yes, assuredly, from what the noble and learned Lord said: the decision, guidance, or whatever it may be from synod would attract the fast-track procedure, but only if it is a private act. In the context of the administration of synod, how can one 799 differentiate between a private and general act? On that I would need the assistance of the right reverend Prelate. It is pretty finely drawn stuff, is it not?
§ The Lord Bishop of Lichfield
I greatly regret that I am not comforted by the remarks of the noble and learned Lord the Lord Chancellor. He seems to have rather deliberately left out the question of religious freedom. I am concerned that a very strict, rather totalitarian view of "public" is endangering the freedom of choice of very large numbers of people in this country who see, as part of their democratic freedom, the freedom to have their children educated in a particular type of school without so-called public rights being used against that very basic freedom.
At Second Reading I was glad to speak on behalf of the Churches very much in favour of the Human Rights Bill. But if a sense of rights is being introduced in this total kind of way, at the expense of the choice of individual families, then something very serious is being lost. Church schools in my diocese welcome in considerable numbers children of other faiths. That is seen as a freedom that we respect in their case. I hope that we shall resist any infringement, on this very delicate matter, of the religious nurture of the young in our country.
§ Lord Lester of Herne Hill
Before the right reverend Prelate sits down, I wonder whether he is aware that the European Convention on Human rights is a charter of religious tolerance and freedom, and has been so interpreted consistently by the European Court of Human Rights in upholding pluralism and religious freedom: for example, in refusing to extend the law of blasphemy in this country to protect other faiths in a way that would be an engine of intolerance, according to the European Human Rights Commission; and in refusing persistently to permit the taxation of churches in other countries, and in other ways showing a complete respect for, as I say, religious tolerance and freedom, including the freedom of the Church of England in this country.
§ The Lord Bishop of Lichfield
That point has not been explicitly spelt out, in the way that the noble Lord has done, by the Government. That is what I seek.
§ Baroness Williams of Crosby
Perhaps I may intervene before the right reverend Prelate sits down. He will see in Article 2 of the First Protocol—I speak as a former Education Secretary—a precise commitment to the right of parents to decide, within the limits of national resources, the kind of education they wish their children to have. Recalling my own period as Secretary of State—I believe that the same holds good today—one of the things underpinning the right of parents in Britain to choose a church school for their children's education if they so wish is precisely the European Convention on Human rights. The right reverend Prelate might well feel reassured rather than the opposite.
§ Lord Campbell of Alloway
I still seek some assistance on the distinction and how it is drawn—even 800 an illustration—from the noble and learned Lord between a general act and a private act by the Synod. One will invoke the fast-track procedure; the other will not. I merely seek some help.
§ The Lord Chancellor
I am not sure whether the right reverend Prelate was in the Chamber when I read out Article 9 of the convention. I was at pains to emphasise that the convention guarantees religious freedom and entitles anyone, either alone or in community with others, in public or private, to manifest his religion or belief in worship, teaching, practice and observance. If any words of mine are necessary to add to the remarks of the noble Lord, Lord Lester of Herne Hill, it is well known that the European Court is highly respectful of Article 9. The Court does treat it as a charter for religious tolerance. I doubt whether the right reverend Prelate, were he to study the decisions of the Court under the article would find much, if anything, with which to quarrel.
I shall not be drawn into two particular responses to very particular questions. One of the dangers of Pepper v. Hart is that if one becomes drawn in that way, what one says can be too readily cited in the courts for a particular interpretation of the Bill. Pepper v. Hart does not come free of risk.
If a court were to uphold that a religious organisation, denomination or Church, in celebrating marriage, was exercising a public function, what on earth would be wrong with that? If a court were to hold that a hospice, because it provided a medical service, was exercising a public function, what on earth would be wrong with that? Is it not also perfectly true that schools, although underpinned by a religious foundation or a trust deed, may well be carrying out public functions? If we take, for example, a charity whose charitable aims include the advancement of a religion, the answer must depend upon the nature of the functions of the charity. For example, charities that operate, let us say, in the area of homelessness, no doubt do exercise public functions. The NSPCC, for example, exercises statutory functions which are of a public nature, although it is a charity. We believe that the principles of the Bill are right and that the courts will come to answers in which the public will have confidence.
In reaction to my particular amendment, I thank the noble and learned Lord the Lord Chancellor for his very full and lengthy reply. I do not believe that there is any dispute at all about what he gave as his first definition of a public authority. We all understand that; there cannot be any argument about it. It is an authority set up by statute, such as a local authority.
His second definition of a public authority is the one which causes me, and I believe the right reverend Prelate the Bishop of Exeter and the other right reverend Prelate, some concern. It defines the body in question as having certain functions of a public nature.
Indeed, I was not really encouraged by the remarks of the noble Lord, Lord Lester. He said that the whole matter was defined on a case-by-case basis and that it was not a new problem. But in a sense the Bill before 801 us does create a new situation, so the situation is not precisely as it was before. The noble Lord went on to say—I shall read his remarks very carefully in Hansard—that the courts have developed certain clear principles and, for example, the functions of the Chief Rabbi or the Synod of the Church of England would not normally fall within the scope of the Bill. That does not really help us, because we do not know when a function would normally fall within the scope of the Bill and when it would not.
The noble and learned Lord the Lord Chancellor said that he had considered the provision of a list but had turned down the idea because of the complexities. Obviously, bodies that were not included in the list would feel that they were outside it but might in fact be included in the terms of the provision. The noble and learned Lord, with respect, has not quite answered my question about the sort of problems that could arise. It is not a question of whether the Church can marry somebody and whether that is a public function; it is a question of whether the Church has the right to say to a homosexual couple who "wish to marry", "I am not going to do it". That is the sort of issue to which I refer. Adoption is another example. Could a religious-based adoption agency which refused to recommend a placement with a homosexual or lesbian couple find itself in court? It ought to know.
Questions arise in regard to charities—for example, the hospice dealing with the organisation for euthanasia. I do not raise these matters as mere debating points. They actually worry quite a lot of people. We have not received an answer as to what the situation would be. I shall read very carefully what was said before considering whether to return to the matter on Report. It would perhaps be helpful to have some definitions, for instance, of "a family". The noble and learned Lord shakes his head. I am not writing the Bill. There will be many situations on which the Bill is not clear: people are concerned. This is new legislation. I do not believe that I have had a full answer to my question. I shall not press my amendment today but I shall look very carefully at what was said and consider whether to return to the matter on Report.
§ 6.30 p.m.
Henley: Before I withdraw my amendment, and by implication the other amendments, perhaps I may thank the noble and learned Lord for being distinctly non-mephistophelean this afternoon. We have seen the sunny side, the angelic side, of his nature and he has given us a relatively full explanation of Clause 6, which is what we were seeking in putting down these amendments.
Some of my confusion is disappearing but at the same time my alarm is increasing with regard to the extent of the definition of "public authority", certainly as set out by the noble Lord, Lord Lester, for his party. We shall need to look much more closely, not only at the definition of "public authority" but also at the exact meaning of "functions of a public nature" in Clause 6(3)(c).
802 I appreciate that the noble and learned Lord finds himself in a very pleasant position. On the one hand, he sees us trying to limit the scope of the clause; on the other hand, he sees the noble and learned Lord, Lord Simon, trying to increase its remit. I know from experience how very pleasant it is to put the argument, "On the one hand," "On the other hand," and then to say, "We have taken the middle road". It is not a very central part of the road that the noble and learned Lord occupies, as we see it. We see the definition as far too wide. As my noble friend Lady Young said, we must look carefully at the very full response the noble and learned Lord gave to the amendments, for which I thank him, and perhaps come back to the matter at a later stage.
I accept the noble and learned Lord's arguments in their entirety as regards the exhaustive-list approach. I do not believe that one could approach the matter in that way because lists never can be exhaustive, however hard one tries. Obviously, the noble and learned Lord took some time to take my amendments to pieces fairly carefully. There was no need to do that because they were merely probing amendments. We shall try to come forward with other amendments at a later stage of the Bill to limit to some extent the width of the clause. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mackay of Drumadoon moved Amendment No. 37:
Page 4, line 9, after ("any") insert ("natural or legal").
§ The noble and learned Lord said: This is a relatively minor amendment compared to those we discussed earlier today. I hope that it will be viewed by the Government as an amendment which does not offer any form of violence to the scheme of the Bill as the noble and learned Lord the Lord Chancellor has carefully and painstakingly explained it to us.
§ While I fully accept what has been said about the problems associated with having an exhaustive list, it nevertheless may be valuable to set it clear on the face of the Bill that in Clause 6(3)(c) the person or persons to whom reference is made can be either natural or legal persons. When one looks at the convention rights set out in Schedule 1 to the Bill, one sees that in Article 1 of the First Protocol, on page 17 of the Bill, there is reference to "every natural or legal person", making it clear that both categories are protected when it comes to the peaceful enjoyment of their possessions. That contrasts with the provisions of the convention itself which, when dealing with, for example, the right to liberty and security in Article 5, restricts itself to the use of the word "person". I therefore hope that the Government will be persuaded of the merit of looking at this matter when they reconsider the terms of Clause 6. I beg to move.
Lord William of Mostyn
I am most grateful for that explanation. We have looked at the matter in the context of the schedule and the terms of the convention article to which the noble and learned Lord, Lord Mackay of Drumadoon, referred. We believe that the present draft of 803 the Bill achieves what the noble and learned Lord wishes to achieve since Clause 6(3)(c) refers to "any person". Unlike the situation when one looks at the drafting of Article 1, the term is well known as a term of art in our law. It is defined in the Interpretation Act 1978 and is relied upon throughout the statute book as including any person or body of persons corporate or unincorporate. I suggest that that is clearly wide enough to cover the natural or legal person to which the amendment refers. I hope that that short explanation is of assistance to the noble and learned Lord. We believe that the Bill fully accommodates what he wishes to achieve.
§ Lord Mackay of Drumadoon
I am grateful to the noble Lord for his explanation, which I fully understand and accept. I hope that lay people who will increasingly be looking at the Bill will do likewise. In the light of the explanation, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Simon of Glaisdale had given notice of his intention to move Amendment No. 38:
Page 4, line 10, at end insert ("and
(d) any person concerned with the provision to the public or a section of the public (whether for payment or otherwise) of any goods, facilities or services").
§ The noble and learned Lord said: This amendment was discussed in the grouping with Amendment No. 36. I should like to say a word about what the noble and learned Lord said about it.
§ I paid earlier a well merited and genuine tribute to the intellectual power which has gone into the Bill and which has promoted and secured its cohesion. But the noble and learned Lord, like other artists before him, has, I am afraid, fallen in love with his own creation. It is the Pygmalion syndrome. When we who are supporters of the Bill suggest that perhaps so elaborate a hairstyle is not required in every circumstance and that, for example, when dealing with preceding legislation, a plainer style, which is well known to part of our law, might be acceptable, the noble and learned Lord merely says, "That does not fit in with our scheme, and that is an end of it." I am afraid that I cannot accept that. We shall have to return to the clause at a later stage. It was criticised from all parts of the House by supporters of the Bill—by the noble Lord, Lord Borrie, the noble Lord, Lord Windlesham, and my noble and learned friend Lord Donaldson of Lymington.
§ The noble and learned Lord said that my amendment would extend to people like window cleaners, the restaurant or the church on the corner, and so on. That is arguable, but by no means certain. Bu if those people fall within the definition of the Race Relations Act, why should they not be encompassed by the Human Rights Bill?
§ However, this is not the time to argue further. I am afraid that my noble and learned friend has once again clothed himself in flames and decided to send this amendment to the nether regions.
§ [Amendment No. 38 not moved.]
§ [Amendments Nos. 39 and 40 not moved.]804
Lord Mackay of Drumadoon moved Amendment No. 41:
Page 4, line 12, at end insert ("or the Lord Advocate or Attorney General exercising their roles as independent public prosecutors").
§ The noble and learned Lord said: This amendment raises the important issue of the intended effect of the Bill on the decisions taken by the Attorney-General and those who work under his supervision and by the Lord Advocate in their roles as independent public prosecutors. I accept at the outset that the role of the Attorney-General in England is not identical to that of the Lord Advocate in Scotland. However, I felt it appropriate to raise the roles of both Law Officers, though my specific concern, for reasons upon which I shall elaborate, is with the role of the Lord Advocate, his Crown counsel and procurators fiscal in Scotland.
§ It is clear from the discussion that has taken place in the Committee this afternoon that both the Attorney-General and the Lord Advocate fall within the definition of "public authority" as set out in Clause 6(3) of the Bill. I also accept, as I am sure the Committee accepts, that at all times those acting as independent public prosecutors will wish to follow, in the course of taking the decisions with which they are charged, all of the principles to be set out in the convention and the protocols to which the United Kingdom is bound and seek to respect the convention rights as they are defined in the Bill.
§ The question which arises and on which I seek guidance from the Minister is this. Is it intended that the decisions taken by or on behalf of the Attorney-General and the Lord Advocate as to whether to prosecute in a specific case, and, if there is to be a prosecution, on which charges, should be open to review by the courts on the basis that a specific decision is incompatible with one or more convention rights? In other words, the issue I seek to address is the issue of jurisdiction. Is it intended that the courts, whether it be the civil or the criminal courts, should have jurisdiction to entertain such an application, whether at the instance of the person who has been prosecuted or at the instance of a victim of a person who may have been arrested by the police but against whom no criminal proceedings are to take place?
§ It is not difficult to imagine an argument being evolved that a decision taken as to whether to prosecute has in some way breached, or been taken in a way which is incompatible with, the convention rights as defined in the Bill. As the noble Lord, Lord Williams of Mostyn, said on the first day of Committee, some arguments advanced in legal proceedings are more meritorious than others. It is not difficult to imagine the argument being conceived. What I wish to address is not the merits of such an application but the issue of whether the courts should have jurisdiction to entertain such an application.
§ I understand, though I shall be guided by English lawyers in this matter, that in limited circumstances the High Court in England will entertain judicial review proceedings against the decision of the independent prosecutor. That principle has been established certainly in relation to cases involving the prosecution of juveniles where it is possible for the person bringing 805 the proceedings to demonstrate that the DPP decision to prosecute has been contrary to settled prosecution policy.
In Scotland the position is different. I am unaware of any case in which either the High Court of Justiciary or the Court of Session has entertained proceedings which have sought judicially to review the decision of the Lord Advocate or a procurator fiscal either to initiate criminal proceedings or to refrain from doing so. The principle which applies is well established and was famously described by the then Lord Justice General, Lord Justice General Clyde, in the case of M'Bain v. Crichton in 1961. He said this:
In this country [Scotland] he [the Lord Advocate] is the recognised prosecutor in the public interest. It is for him, in the exercise of his responsible office, to decide whether he will prosecute in the public interest and at the public expense, and under our constitutional practice this decision is a matter for him, and for him alone. No one can compel him to give his reasons, nor order him to concur in a private prosecution. The basic principle of our system of criminal administration in Scotland is to submit the question of whether there is to he a public prosecution to the impartial and skilled investigation of the Lord Advocate and his department, and the decision whether or not to prosecute is exclusively within his discretion".
The Lord Justice General went on to say:
it is utterly inconsistent with such a system that the Courts should examine, as it was suggested it would be proper or competent for us to do, the reasons which have affected the Lord Advocate in deciding how to exercise his discretion, and it would be still more absurd for this Court to proceed to review their soundness".
§ That principle was recognised not long ago during the holding of the Cullen inquiry into the Dunblane tragedy, where it was felt appropriate that the procurators fiscal who had been involved in dealing with police reports relating to Thomas Hamilton should give evidence before Lord Cullen. They did so. But Lord Cullen respected the principle that it would be inappropriate to review the soundness of the decisions which the individual procurators fiscal had reached.
§ It is important, with any form of constitutional Bill, that this Chamber examines with great care what may be the unintended consequences of legislation being brought forward with a wide measure of support, as it is suggested this Bill has. What I seek to have clarified, particularly in relation to Scotland but also in relation to England, is the issue of jurisdiction; namely, whether the courts could confidently review those decisions I described as against the convention rights set out in the schedule to the Bill. I beg to move.
§ 6.45 p.m.
§ Lord Hope of Craighead
I should like to add a few words to what the noble and learned Lord said in order to focus on what I see as a relatively narrow but important point raised by his amendment. The point is rather more narrow than the terms of his amendment suggest.
There is a considerable field of both investigation and prosecution practice which is currently subject to review under the common law by the law of Scotland, on which I am best qualified to speak. To take one recent and indeed welcome example, in a case called McLeod, which is well known to the noble and learned Lord the 806 Lord Advocate, the High Court of Justiciary in Scotland referred to a larger court for further examination the question of whether the prosecutor was obliged by Article 6(1) of the convention to disclose all material evidence for or against the accused. It took the view that these decisions were of great importance and required proper consideration of the relevant jurisprudence of the European Court of Human Rights.
I mention that because I would not like it to be thought that the court—I speak against the background of having served as chairman of the court on these issues for a number of years—was not aware of the importance of these issues and anxious to develop the jurisprudence under the common law. The point to which the noble and learned Lord has referred, however, is, as I have said, a very narrow one as to whether it is right for the court to tell the Lord Advocate whether he should prosecute or not prosecute in a particular case, and, if so, on what charges he should or should not prosecute.
There is, to add further background to the point, certainly jurisdiction to the effect that if the Lord Advocate decides to prosecute, he may be told that his prosecution is bad because it is oppressive; he may be told that it is too late; he may be told that the charges which he brings are incompetent or the wording is irrelevant. It is the narrow point of decision taking as to whether or not to prosecute that is at issue. The reason, I suspect, why the court has always in the past held back from giving directions on these matters is that it has always in the past taken the view that these questions raise difficult issues of policy which are best decided by the Lord Advocate and on which the court is really not well placed to express a view.
The issue for the noble and learned Lord the Lord Advocate, if he is to reply, is whether the law should be changed on this matter. If it is to be changed, it raises one other important point on which perhaps I should dwell at least for a moment. If a prosecution has been brought—if a decision has been taken—and the matter is then in the criminal field, there is plenty of jurisprudence in Scotland which identifies the court to which the matter can be brought; that is, the High Court of Justiciary. If there are no proceedings and a decision is being asked for as to whether the Lord Advocate ought to prosecute, there seems to me to be an open question as to whether that is a matter to be brought by way of judicial review in the Court of Session.
I do not need to emphasise the importance of the choice from the point of view of Scottish practice, because there is no appeal to the House of Lords from decisions of the High Court of Justiciary whereas there is an appeal from decisions of the Court of Session in matters of judicial review. I confess that it is not clear to me from the present wording of the Bill whether, if these matters are to be subject to review, it is clearly decided that they should be taken under review only in the High Court of Justiciary, which I would venture to suggest was the proper court for it. If that is to be the decision, it may well be that some indication in primary legislation should be given.
807 I make these observations really more to emphasise the importance of the amendment which the noble and learned Lord has suggested rather than to develop his theme in any further detail.
§ Lord Lester of Herne Hill
No English common lawyer has any business in this debate except, if I may, to reflect on two matters which may be helpful. I recall that there was a decision of the House of Lords in the case of Lennon where Lord Diplock indicated that in a case of criminal libel—or it may have been blasphemous libel—it was incumbent on the Director of Public Prosecutions and the prosecuting authorities to have regard to the convention so as to ensure that in exercising the prosecutorial discretion there would be no unnecessary infringement of the right to free speech. So there, in an English appeal, the House of Lords in its judicial capacity recognised that there is an international obligation on prosecuting authorities to have regard to the convention.
I also recall—I am not sure whether it was in the interstate case of Ireland v. United Kingdom—developing an argument before the European Court of Human Rights with regard to prosecutorial discretion that if, for example, the prosecuting authorities in this country were to exercise their discretion in an arbitrary and racially discriminatory way or based on the religion of particular people—prosecuting some but not others because of their colour or race—English judicial review would certainly provide an effective remedy in that context as well.
hope that those two observations are of some help in resolving this problem.
§ The Lord Chancellor
This amendment would explicitly exclude the Lord Advocate and the Attorney-General in their role as independent public prosecutors from the definition of a public authority in Clause 6(3)(c). It would therefore not be unlawful for them, if these amendments were passed, to act in a way which was incompatible with the convention rights. I have derived assistance from the contributions to the debate of the noble and learned Lords, Lord Mackay of Drumadoon and Lord Hope of Craighead, and of the noble Lord, Lord Lester of Herne Hill. I undertake to write to those who have spoken in support of the amendment elaborating what I now say.
It is of the first importance to distinguish clearly between judicial review and unlawful action under the convention. They are two different things. So far as I am aware, the Bill does not affect the ordinary law of judicial review. What it does do, however, is make it unlawful for a public authority to act in a way which is incompatible with one or more of the convention rights. That is set out in Clause 6(1).
In England, certainly today, decisions not to prosecute are reviewable. The test would be whether no reasonable prosecutor could have abstained from prosecuting. I do not see in principle why that should not apply to a decision to prosecute where no reasonable prosecutor would prosecute. I would also agree with the noble 808 Lord, Lord Lester, that a decision to prosecute only those who were black but not those who were white would be perverse and judicially reviewable. That, however, is not what is touched by the Bill. I am not aware of—and no noble and learned Lord has drawn my attention to—any provision of the convention which a decision to prosecute or not to prosecute might be said to infringe. So, as at present advised, I do not see how a prosecutor—
§ Lord Lester of Herne Hill
I am grateful to the noble and learned Lord for giving way. The example I had in mind was the right to liberty under Article 5 of the convention. Perhaps I may give, as an example, internment without trial, which was the subject matter of the Irish state case where I had the honour to represent the United Kingdom Government. A discriminatory use of internment without trial would plainly breach Article 5 and a decision to arrest and detain with a view to prosecution might breach Article 6 read with Articles 5 and 14. That is the risk that could arise since people would then find themselves facing criminal charges on a discriminatory basis. Some such argument might be mounted in relation to the discretion of the prosecutor. The example I have given of Article 10, where the prosecution related to free speech, was why Lord Diplock considered that the prosecutor needed to have regard to the convention in that context.
§ The Lord Chancellor
The noble Lord refers to Article 5. I should have thought that internment or detention was not a matter of prosecutorial decision and therefore would fall outside Article 5. As at present advised, I am not persuaded that a decision to prosecute or not to prosecute is caught by the convention or by any provision of the convention. But I shall look at that with greater care.
I can see that certain provisions of Article 6 and in particular those in paragraph (3) which confer certain minimum rights on persons charged with a criminal offence could be infringed by a prosecutor. So I am not saying that it appears to me that prosecutors are free of any duties under the convention. But for the present I do not see how a decision whether to prosecute would be caught by any particular provision of the convention. But I shall look at it and write to the noble and learned Lords who have spoken in support of the amendment.
In developing our proposals in Clause 6 we have opted for a wide-ranging definition of public authority. We have created a correspondingly wide liability. That is because we want to provide as much protection as possible for the rights of individuals against the misuse of power by the state within the framework of a Bill which preserves parliamentary sovereignty.
As a matter of principle it is plain that a prosecuting authority is a public authority and that it is right that it should abstain from acting in a way which is incompatible with one or more of the convention rights, but if it does so act, then it acts unlawfully.
Given the central role played in our criminal justice by independent public prosecutors, it would create a significant gap in the protection provided by the Bill if they were not subject to Clause 6. I do not see why they 809 should be exempted. I do not see why public prosecutors should not be required to act in a way which is compatible with the convention in just the same way as the courts themselves and investigators such as the police are required to act compatibly.
I oppose this amendment on its own terms. In my view, it would be subversive of the rule of law to provide that independent public prosecutors should be above the convention when no other public body is so placed. My right honourable and learned friend the Attorney-General and my noble and learned friend the Lord Advocate do not desire to be above the convention. In my view it would be bizarre if they were above it, while, in the case of the Attorney-General, the body for which he is responsible—namely, the Crown Prosecution Service—must comply with the convention. For these reasons, I oppose this amendment in its own terns but on the narrow issue of whether a decision to prosecute could arguably be said to infringe any convention rights, I shall consider it and write to the noble and learned Lords.
§ 7 p.m.
§ Lord Mackay of Drumadoon
I am grateful to the noble and learned Lord the Lord Chancellor. I am sure that he will appreciate that the amendment was tabled to probe the Government's position on this issue. In moving the amendment I did not for a moment begin to suggest that either the Attorney-General or the Lord Advocate would desire to be above the convention or that in their prosecutorial work they would in any way wish to ignore any of the convention rights.
Clearly, there is a difference in practice between the law of England and the law of Scotland on this issue. I am sure that the noble and learned Lord the Lord Advocate will appreciate and accept that one would not wish, in Scotland at least, to admit the possibility of either the High Court or the Court of Session reviewing decisions of the type I have described and those of the nature on which the noble and learned Lord, Lord Hope, focused in his contribution lest the practice be expanded into undesirable fields.
However, I am grateful to the noble and learned Lord the Lord Chancellor for undertaking to write further about this matter. No doubt he will be assisted in framing his letter by the noble and learned Lord the Lord Advocate and others. Having received the letter, I shall reflect, consult with others whom I know are interested in this issue and possibly return to it at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 42 not moved.]
Lord Meston moved Amendment No. 43:
Page 4, line 15, leave out subsection (5) and insert
("(5) A private body, which sometimes exercises functions of a public nature, shall not because of subsection (3) be regarded as a public body in respect of an act which is private in nature.").
§ The noble Lord said: This amendment is supported by the Law Reform Committee of the Bar Council and by the Criminal Bar Association. It proposes a different form of wording for Clause 6(5). As Members of the 810 Committee have been told in the course of the debate this afternoon, Clause 6(3) gives a wide and non-exclusive definition to "public authority". But Clause 6(5), as drafted, has caused concern because it may be construed as removing from the protection to be given by the Bill public bodies when they are engaged in activities which may be classified as private. For example, employment relationships are not usually classified as public in nature.
§ This amendment is intended to make it clear that public bodies must comply with the Human Rights Bill, when it is enacted, in all their actions, including the treatment of their employees. For example, if that treatment involves an interference with the private life of an employee or a restriction on an employee's freedom of expression, it is suggested that such treatment should not be taken outside the protection of the Bill.
§ Clause 6(5), as presently drafted, may also give rise to uncertainty about its application to public servants who act outside the scope of their authority. An example is the notorious case of Makanjuola v. The Metropolitan Police Commissioner where the plaintiff was indecently assaulted by a police officer who had gained entry to her home by showing his warrant card. Under Clause 6(5) such an action might be said to be private rather than public. Therefore, there is a risk that the more seriously a public official misbehaves, the less likely that the victim will have the protection of the Bill. This amendment is intended to try to limit the exclusions in the Bill to truly private functions.
§ At an earlier stage the noble and learned Lord the Lord Chancellor said that he felt that the balance in Clause 6 was right. I would not argue in general with that proposition. This amendment is intended to achieve a small measure of fine tuning. I beg to move.
I support this amendment. It is mainly a matter of drafting. I do not believe that there is much difference in substance between what is proposed in the amendment and what is already in Clause 3(2)(c) and in Clause 6(5) as presently drafted. But that subsection does not give enough information, whereas this amendment amplifies the position and is well worthy of consideration.
§ The Lord Chancellor
I understand that this is a probing amendment, but what I am concerned to elucidate is whether it proceeds on the basis of a misunderstanding about the way in which Clause 6 works. Interpreting Clause 6(3)(c) as applying to all public authorities, even obvious ones, they already qualify as public authorities under Clause 6(1), with the result that government departments, for example, would not be bound by the convention in respect of their private acts. Of course, once a body qualifies as a public authority under Clause 6(1), if any of its acts are incompatible with one or more of the convention rights, it acts unlawfully.
The noble Lord has explained the reasoning behind his amendment. Essentially it is intended to ensure that public authorities must comply with Clause 6 in relation to all their acts, including those which might be regarded 811 as private in nature, such as those relating to employment matters, while exempting private bodies with some public functions from Clause 6 in relation to their private acts. With respect, I think that the noble Lord may have misunderstood how Clause 6 in its current form is intended to work in relation to public authorities. I hope that my explanation will persuade him that his amendment is not necessary.
For the purposes of this amendment, I hope that the Committee will forgive me if I repeat and perhaps amplify some of the observations that I made pursuant to an invitation from the noble Baroness, Lady Young, that I give a better explanation. Clause 6(1) refers to a "public authority" without defining the term. In many cases it will be obvious to the courts that they are dealing with a public authority. In respect of government departments, for example, or police officers, or prison officers, or immigration officers, or local authorities, there can be no doubt that the body in question is a public authority. Any clear case of that kind comes in under Clause 6(1); and it is then unlawful for the authority to act in a way which is incompatible with one or more of the convention rights. In such cases, the prohibition applies in respect of all their acts, public and private. There is no exemption for private acts such as is conferred by Clause 6(5) in relation to Clause 6(3)(c).
Clause 6(3)(c) provides further assistance on the meaning of public authority. It provides that "public authority" includes,any person certain of whose functions are functions of a public nature".That provision is there to include bodies which are not manifestly public authorities, but some of whose functions only are of a public nature. It is relevant to cases where the courts are not sure whether they are looking at a public authority in the full-blooded Clause 6(1) sense with regard to those bodies which fall into the grey area between public and private. The Bill reflects the decision to include as "public authorities" bodies which have some public functions and some private functions.
Perhaps I may give an example that I have cited previously. Railtrack would fall into that category because it exercises public functions in its role as a safety regulator, but it is acting privately in its role as a property developer. A private security company would be exercising public functions in relation to the management of a contracted-out prison but would be acting privately when, for example, guarding commercial premises. Doctors in general practice would be public authorities in relation to their National Health Service functions, but not in relation to their private patients.
The effect of Clause 6(5) read with Clause 6(3)(c) is that all the acts of bodies with mixed functions are subject to the prohibition in Clause 6(1) unless— I emphasise this—in relation to a particular act, the nature of which is private.
Clause 6 accordingly distinguishes between obvious public authorities, all of whose acts are subject to Clause 6, and bodies with mixed functions which are caught in relation to their public acts but not their private acts. In so far as the noble Lord is concerned with obvious 812 public authorities such as those I have described, Clause 6 already does the job which his amendment is designed to do. In so far as he is concerned with bodies in the second category, I would contend that it is right to exempt from Clause 6 their private acts. In relation to employment matters, for example, I do not see a distinction between a private security company which has a contracted-out prison in its portfolio and one which does not. There is no reason to make the first company liable under Clause 6 in respect of its private acts and the second one not liable simply because the first company is also responsible for the management of a prison. As far as acts of a private nature are concerned, the two private security companies are indistinguishable; nor do I see a distinction in this area between Railtrack and other property developers or between doctors with NHS patients and those without.
Returning to the noble Lord's amendment, I do not believe that its actual effect—or its intended effect—differs significantly, if at all, from the effect of the provisions currently in the Bill. I do not see any real difference between,any person certain of whose functions are functions of a public nature",as in Clause 6(3)(c), andA private body. which sometimes exercises functions of a public nature",as in the amendment. Both of them refer to an entity which has mixed public and private functions. Both of them feed into the exemption for private acts in Clause 6(5). As I have explained, it may be that the Government and the noble Lord are aiming at the same target. In the light of that, I hope that the noble Lord will seek leave to withdraw his amendment.
§ 7.15 p.m.
§ Lord Meston: I
am most grateful to the noble Lord, Lord Renton, for his support—albeit on the basis that I was seeking only to improve the form of the Bill rather than its substance in any material way.
I am most grateful also to the noble and learned Lord the Lord Chancellor for his full and careful explanation of his reading of the way in which Clause 6 is intended to work. There are, indeed, certain grey areas, caused in particular by the interaction of the phraseology concerned with bodies whether public or private and with activities of a public or private nature. This is not something to be pressed further this evening, but I shall wish to reflect upon the amendment and, if more refined provisions can be produced at a later stage, I reserve the right to do so. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 44 not moved.]
Lord Meston moved Amendment No. 45:
Page 4, line 17, leave out from second ("act) to end of line 19.
§ The noble Lord said: Clause 6(6) as presently drafted excludes a failure to legislate from the omissions which could give rise to a remedy under the Bill, thus it may be interpreted as inhibiting the courts from making declarations in situations in which the absence of legislation violates the convention. The convention 813 requires that any necessary interference with convention rights must be regulated and defined by law with sufficient precision and clarity as, for example, was the case in the telephone tapping case of Malone where the absence of a statutory regime led to the finding of a violation of Article 8 of the convention.
§ The purpose of the amendment is to explore whether and to what extent it is right for a government—for any government—to drag their heels in introducing legislation necessary to bring the United Kingdom into compliance with the convention. I beg to move.
§ Lord Ackner
I support this amendment. In addition to what has been said by the noble Lord, Lord Meston, Clause 6(6) may have serious implications for the victims of crime. Strasbourg case law recognises that under certain circumstances the state is under an obligation to legislate so as to prohibit the infringement of convention rights by private individuals. Typically, the infringement will involve the commission of a criminal offence against a victim. Thus, in the case of X. and Y v. The Netherlands it was the failure of Dutch law to criminalise sexual abuse of a mentally handicapped 16 year-old which resulted in a violation of Article 8. Similarly, in the recent case of A. v. United Kingdom it was the failure of the UK to legislate so as to prohibit the abusive beating of a child by a parent which was found by the Commission to involve a violation of Article 3.
The courts may in certain circumstances be able to bridge such gaps by the development of common law rules, as the House of Lords did when it interpreted the offence of rape so as to include rape within the marriage. But by expressly excluding a failure to legislate from the acts that can give rise to a violation, Clause 6(6) may inhibit the ability of the courts to develop positive protection in this area. This would increase the risk of further adverse rulings in Strasbourg.
I am very puzzled by subsection (6). If one refers to subsection (1), one is dealing with incompatibility on the part of a public authority in the way that it does its work with a convention right. But I cannot understand how a mere negative failure to introduce a proposal for legislation or to make primary legislation can be incompatible with the convention. It appears that we are getting into the area of non-events which are irrelevant.
I am also puzzled by the last two words of subsection (6). What is a remedial order? That is not a parliamentary phrase that I have ever heard. It may be a parliamentary way of describing an act of some kind, but I am not familiar with it. I believe that noble Lords will be helped if they can be told what "remedial order" means in this context.
§ Lord Lester of Herne Hill
I hope that my noble friend Lord Meston and the noble and learned Lord, Lord Ackner, will forgive me for not being enthusiastic about this amendment for a reason that I can explain briefly. I was once guilty of a constitutional solecism in The Queen v. Secretary of State for Employment, ex parte 814 Equal Opportunities Commission. In that case relief was sought against Mr. Michael Howard (then Secretary of State for Employment) for his failure to introduce legislation amending the employment protection legislation so as to remove indirect sex discrimination against women. Reliance was placed on directly effective provisions of European Community law.
It was pointed out both in the House of Lords and the lower courts that one could not seek that kind of direct relief without invading the prerogative and privileges of Parliament as an institution, and there would be clashes between the law of Parliament and the law of the courts if one sought what was tantamount to an order against the Secretary of State for failing to introduce legislation into Parliament. Instead, what the Law Lords did was in a way more aggressive. They disapplied the legislation and displaced the inconsistent provisions. They could do that because Section 2 of the European Communities Act so required.
I am a reluctant convert to the proposition in this Bill that the courts should not have the power to strike down legislation or interfere with parliamentary sovereignty. It therefore seems to me to be sensible to include Clause 6(6) as the logical consequence of that decision so as to prevent the kind of challenge that I have endeavoured to summarise for the reasons that I have given.
§ The Lord Chancellor
The noble Lord has explained that the purpose of his amendment is to ensure that the courts are not inhibited from making a declaration of incompatibility when the case before them turns on the absence of legislation rather than on a specific provision of legislation which is said to be incompatible with the convention rights. His particular concern is with cases where a public authority interferes with a convention right in an area which is not regulated by law. I shall try to explain that the Bill provides a remedy for the individual in the kind of case that has prompted this amendment and that the amendment has an effect which is inconsistent with one of the fundamental principles on which the Bill is based.
If a person believes that his convention rights have been violated as a result of action by a public authority which is not governed by legislation the right course is for him to bring legal proceedings against the authority under Clause 7 of the Bill or to rely on his convention rights in any other legal proceedings to which he and the authority are a party. If the court finds in his favour it will be able to grant whatever remedy is within its jurisdiction and appears just and appropriate. The fact that there is no specific legislation for the court to declare incompatible with the convention does not affect the ability of the person concerned to obtain a remedy. The absence of legislation entails that there is no legislative warrant for acts in breach of the convention by the public authority. The Minister, however, as the noble Lord, Lord Lester, rightly points out, is protected by Clause 6(6) from any claim that he is in breach by failing to bring forward legislation. That is part of the scheme of the Bill to underpin parliamentary sovereignty.
Further, the purpose of a declaration of incompatibility is to allow the courts to make a public statement that they cannot interpret legislation in a way which is 815 incompatible with the convention rights. It is just not possible to do so. This provides a trigger for the power to make a remedial order in Clause 10. Because the Bill protects public authorities which are acting so as to give effect to primary legislation, even if the action is incompatible with the convention rights, there is nothing that the courts can do to provide a remedy to the person affected by their actions. That is why the power to make a declaration of incompatibility is needed in these cases. There is no corresponding need to make a declaration of incompatibility in cases where the problem is an absence of legislation, because there is nothing to stop the courts providing a remedy in those cases. There is no legislative bar or block on the courts doing so. On the contrary.
I therefore believe that the noble Lord, Lord Lester, is right not to be enthusiastic about this amendment. I believe that the noble Lord's amendment is unnecessary and would have undesirable consequences if it were accepted.
Clause 6(6) exempts from Clause 6 a failure by a public authority to,introduce in, or lay before, Parliament a proposal for legislation; or make any primary legislation or remedial order".This amendment would remove that exemption so that a failure by a public authority to do one of those things would be capable of being challenged in the courts on the grounds that it was unlawful because it was incompatible with one or more of the convention rights.
In effect—and I believe this to be the compelling argument against the amendment—it would make a decision not to enact primary legislation justiciable before the courts. That would be inconsistent with a fundamental precept of our constitutional arrangements; namely, that the courts do not interfere with the proceedings of Parliament. In short, the Bill is designed to preserve parliamentary sovereignty and this amendment would encroach upon that.
As to the examples which the noble and learned Lord, Lord Ackner, gave, in those cases, the Government would of course consider whether to make a legislative response to any decision of the Strasbourg court. I should add also that judges do, in their judgments from time to time, draw attention to the need for Parliament to consider legislative change and after the passage of this Bill they will remain as free to do that as they have always been and have felt themselves free to do.
Before the noble Lord, Lord Meston, replies perhaps I may say that the noble and learned Lord the Lord Chancellor has gone a long way towards filling the gaps in my mind. However, he has not dealt with the question which I asked him to deal with in relation to the words "remedial order". It would seem that a remedial order means an order made by a court of law. Bearing in mind that earlier we were talking about parliament and legislation, for the sake of clarity should we not make it clear that that refers to a remedial order by a court of law?
§ Lord Meston
Dealing with the "remedial order" point, the noble Lord, Lord Renton, has spotted a drafting 816 defect in the Bill which has irritated me in the sense that Clause 11 refers for the first time to a definition of a remedial order, or a partial definition of it when in fact it covers Clause 10. It would be much more helpful to have somewhere in Clause 10 the phrase "remedial order" introduced for the first time. But that is a drafting point rather than anything else.
I am grateful to the noble and learned Lord, Lord Ackner, for his assistance in supporting this amendment. I am comforted by the explanation of the noble and learned Lord the Lord Chancellor which suggests that it will be no defence to proceedings brought under the convention to say that there is no appropriate legislation. That is a substantial answer to the point raised by the amendment.
But I do not accept the proposition that a failure by the Executive to legislate is in any way an infringement of parliamentary sovereignty. Surely it is the absence of any parliamentary activity which is involved and the absence of any parliamentary initiative by the Executive. That is the situation about which I am troubled in this amendment.
Having said that, I am conscious of the fact that a substantial answer has been given by the Government to the point raised in this amendment and that it does not have the support of my noble friend Lord Lester of Herne Hill. I shall not completely scuttle off with my tail between my legs but I will beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6, as amended, agreed to.
§ Lord Haskel
I beg to move that the House be now resumed. In moving this Motion, I suggest that the Committee stage begin again not before 8.35 p.m.
Moved, That the House be now resumed.— (Lord Haskel.)
§ Lord Simon of Glaisdale
May I ask the Whip until what time it is proposed that we should sit this evening? In asking that question, perhaps I may remind him of the Rippon Committee recommendations on the Sittings of the House and also the fact that we have had three introductions and a Statement lasting three-quarters of an hour.
§ Lord Haskel
I shall respond to that when we return after the Dinner Hour when I shall have had the opportunity to consult the people who are dealing with the Committee stage of the Bill.
§ Lord Simon of Glaisdale
I am much obliged to the noble Lord.
On Question, Motion agreed to.