Joint Committee On Human Rights Minutes of Evidence

Examination of Witnesses (Questions 120 - 137)



Sir Patrick Cormack

  120. Do you think that will increase?
  (Lord Phillips of Worth Matravers) I think it will increase. In law you get incremental growth in various areas, it very seldom shrinks. This is one of the areas where we will see incremental growth.

Lord Goldsmith

  121. I would just like to follow this up because I find it enormously difficult ever to advise when the court will and when it will not allow third party intervention. Is it time to reassess whether by the rules of court or by judicial guidance what the circumstances are where it is helpful and, perhaps, particularly what the form of that intervention should take, written or oral, and if so will we have to move, I recognise this goes a long way beyond human rights, towards the admission of Brandeis briefs or other statements from interested third parties which set out the economic or social consequences of particular decisions.
  (Lord Woolf of Barnes) There is thought been given and there have been meetings between academics and judges where this subject has been discussed. I think we have to see how the position develops. I agree with Lord Goldsmith, it is unfortunate that the position is not clearer at the present time. My own belief is that going forward on a case-by-case basis will provide us with the experience and guidance we need. Although there can be benefits, as Lord Bingham said, there can also be disadvantages. With regard to somebody who wanted to get a quick decision in their case they do not particularly want to see the case transformed into a cause célébre by bodies which have established positions in regard to some closely related issue debated at, as they see it, their expense, because their costs are being incurred.
  (Lord Phillips of Worth Matravers) I would simply agree. It is very early days in this area. I think we need to gain some more experience on a case-by-case basis before we try to lay down some form of inflexible rule.

Mr Miller

  122. If I can pursue the point made by our Chairman about victims and extend it in the context of death on the road to victims' families. Do you see a place for third party interventions in those cases, because it is one area where there is a great deal of dissatisfaction on the parts of the victims' families about how justice works?
  (Lord Woolf of Barnes) We are moving forward. It depends what role you see for the victims. The courts have now moved to a stage where they consider it very relevant in determining the appropriate sentence to know about the impact on the victims. That clearly can, and I think should, influence the body responsible for imposing the sentence. What we have not accepted—which I personally think we have correctly not accepted—is any right of a victim to demand a particular sentence in a particular case. I would not myself be supportive of making our justice system one where victims could come and say, "We think the appropriate punishment for this case is so many years." We have always been in this jurisdiction cautious about that. Even the Attorney General on an Attorney General's reference when he is suggesting that a sentence is too low is very cautious to what extent he indicates what he would consider is the appropriate sentence, and I think his caution is right. As you know, we now have an advisory panel which can give guidance to the courts as to what should be the range of sentences in particular circumstances and if the courts feel that there is need for guidance they are now required by Parliament to give the panel an opportunity for giving advice to the courts. I feel processes of that sort are a preferable way in which to take account of victims generally although, as I have already indicated, the court is prepared to hear, and does hear now more than used to be the case, the impact on the victim.

Lord Carlisle of Bucklow

  123. I suppose in some ways it could be a possible half-way house. In Jersey, as you know, the Crown does ask for a particular sentence—not the victim but the Crown. Have you any comments to make about that?
  (Lord Woolf of Barnes) All I can say as an example of how the situation develops is I can remember when I was a newly appointed judge where on the question of damages it was quite wrong for any counsel to suggest to the court what was the appropriate level of damages. Now the position has been transformed and I think helpfully transformed. What counsel does now may not be directly relevant but sometimes it is said, "Your Lordship might like to know that there has been a guideline judgment on this which gives the guidance." Speaking for myself, I think it is helpful for prosecuting counsel in an appropriate case to do that and, indeed, I would not be surprised if we soon have a little collection of the guideline judgments brought together so they are available to judges to make sure that they are aware of what level of sentencing there should be in particular areas.

Lord Lester of Herne Hill

  124. Could I go back to Lord Goldsmith's question about Brandeis briefs, ie evidence of the social and economic impact of a legislative or administrative matter, to help the court decide whether the measure is necessary as an interference with a basic right or freedom. Would I be right in thinking that the court will need evidence of economic and social impact as, for example, is needed and was the case in the Equal Opportunity Commission part-timers case that went to the House of Lords where the impact of the employment protection legislation on women had to be looked at and, if so, is there not a gap in our system without a body like the Equal Opportunities Commission, such that there is no body that can provide authoritative, independent material of that kind and one depends utterly upon the parties to produce that evidence to the court? I am leaving aside the question as to whether one needs or does not need a Human Rights Commissioner. I am focusing on the fact that the court needs all the help it can get, not just on the language of a measure but also on what its real impact is when carrying out the judicial review function in terms of tests under the European Convention.
  (Lord Woolf of Barnes) A court can be helped by information of that sort, it depends on the circumstances of a particular case.

Mr Maclennan

  125. In our initial work in this Committee we have been forming a view of our own role and have had to take account of the certificate of compatibility under Section 19 of the Act. Lord Chief Justice, in your evidence you indicated that the court might consider it relevant when interpreting legislation. I wonder if you would care to indicate in any way how it might be considered relevant; if it goes beyond in some way what I understand to be the judicial obligation to construe the legislation as being compatible with the Human Rights Convention so far as it is possible to do so? This simply seems to be a sort of nihil obstat from the government. Is it something more?
  (Lord Woolf of Barnes) Again, we have to work out what real significance it has. I am certainly conscious that different judges may have different views about it. We now look at background material more than we did in the past. It seems to me that that is the background fact that the government has if it is promoting legislation, and they made a declaration of that nature, and I would expect the government to take it seriously.

  126. And the judiciary to take the government's assertion any more seriously than the plain language of the statute, and its legitimacy against the test of the Human Rights Act as you question it?
  (Lord Woolf of Barnes) We are getting on to very delicate ground here. All I would like to add to what I have said already is that it does seem to me as part of the background to the creation of that particular piece of legislation and as part of the background it does seem to me that it is or could be of some help in seeking to find out what has put the intent on the legislation. I see the role of the courts in interpreting legislation as trying to give effect to the will of Parliament. If one knows that the legislation has a health statement of that sort then that is part of the background.

  127. Lord Bingham, I wonder if I might ask you, if you in taking the view that you are seeking to give effect to will of Parliament, how that duty should, in your view, be discharged if it may appear, but notwithstanding the certificate, that the piece of legislation in question is running counter to the Convention as you interpret it?
  (Lord Bingham of Cornhill) I would not myself wish to say anything about how any court will react to or what weight it would attach to a ministerial declaration of compatibility, because that is a question which is bound to be litigated and no doubt will be in due course ruled upon. What I think is absolutely plain is that the courts will recognise that any act of Parliament represents a democratic response to what members of Parliament have recognised as a problem and the Act will represent their solution to it. Those are not matters to be left out of account in considering whether there is a breach of the Convention because questions of proportionality and reasonableness, and so on, arise. It seems to me the more significant matter is not whether the minister has declared the matter compatible but the fact that this is Parliament's response to a perceived mischief.
  (Lord Woolf of Barnes) You may have misunderstood my answer, I was not certainly intending to suggest that if something was otherwise incompatible with the article in the Convention the fact that there is a statement by a minister can alter that result. I was merely indicating that that was part of the background in trying to find the meaning of the legislation. There is a two-stage process. First you have got to find the meaning of the legislation and then you have got to see whether it is compatible or not with the Articles of the Convention.

Lord Lester of Herne Hill

  128. When the Lord Chief Justice referred to the "intention of Parliament", I am sure the first intention of Parliament is what is the intention in the Human Rights Act, if one has got a Human Rights Act case. If the intention of Parliament there is to decide whether legislation or administrative action is compatible, one is then looking at impact and questions of that kind but, as I understand it, the evidence is—and speaking personally I respectfully agree—that what Ministers say in the House of Commons or the House of Lords or what we say in this Committee or what is written on the face of the Bill by a Minister is background, but in the end the question is whether the measure is or is not compatible with human rights. That is what I understand is being said.
  (Lord Phillips of Worth Matravers) We start with a statutory duty to interpret the legislation in a way that is compatible with the Convention if we possibly can.

Mr Maclennan

  129. But there is also an obligation, is there not, that if it is impossible so to interpret it, to issue some form of declaration of incompatibility? It is not suggesting or implying, is it, that that duty would be replaced by the declaration on the face of the legislation?
  (Lord Phillips of Worth Matravers) Absolutely not. It is, "Terribly sorry, but whatever the Minister said we adjudge this to be incompatible."

Sir Patrick Cormack

  130. Strasbourg has been mentioned only once by Lord Bingham when he was answering the question about things consequential upon devolution. Would you like to say anything about relations with Strasbourg and how you think these are going to develop?
  (Lord Bingham of Cornhill) We started off on dialogue and I do myself think that one of the great advantages of having incorporated the Convention is that it makes it possible to have a dialogue with the Court in Strasbourg. Of course, we have a lot to learn from them but I venture to suggest they have a great deal to learn from us, not least in the areas which are unfamiliar to most Continental jurists, of which jury trial is the most pre-eminent example. It seemed to me in the past a grave weakness that all these questions from the United Kingdom were being argued in Strasbourg without any judgment from the United Kingdom court for the judges there to look at and say, "That makes moderately good sense, considering". That has changed and they now are, for better or worse, getting our views on these questions and one would hope that they would treat those with the same serious respect with which we treat their judgements, even though of course we have a duty ultimately to take account of their jurisprudence whereas they have no duty to take account of ours. But they do, as one sees if one looks at the jurisprudence of the Strasbourg Court, deal with these things on a case-by-case basis. They do not, contrary to some beliefs, formulate huge, far-reaching, abstract principles and then apply them blindly. They are very attentive to the particular case and the facts. So I do see a two-way process here initiated by incorporation which, if sensibly handled on both sides, can be productive and work to the benefit of the people.

  131. So you would feel comfortable about that?
  (Lord Bingham of Cornhill) I never feel entirely comfortable about anything!


  132. At this point may I thank you for coming, Lord Woolf. You did have the courtesy to tell the Committee that you must go to a function because you are hosting it and you must leave by 6 o'clock. Thank you very much for your attendance today.
  (Lord Woolf of Barnes) Thank you very much, Madam Chairman, I hope you will forgive me.

  133. May I ask if Lord Bingham and Lord Phillips are available to stay for another question?
  (Lord Bingham of Cornhill) Yes, provided we are there in time. We have a similar motive for leaving.

  Chairman: We will let the host go ahead. Baroness Perry wanted to ask a question.

Baroness Perry of Southwark

  134. Mine is really rather a general question and very much a layman's question. You have just given, Lord Bingham, a very cogent argument for having a Human Rights Act in our relationship with Strasbourg. I also note that all three of you have referred in one way or another, as have our previous witnesses, to the fact that we already had in the common law in this country all of the rights which the Convention bestows. Could you tell me whether you think the Convention has added anything to the rights of individuals in law and, perhaps, can you also tell me whether you think in any sense there are cases where the Convention's language restricts something that might perhaps have existed in common law before?
  (Lord Bingham of Cornhill) I would not myself accept that we had all these rights before. I very firmly believe that we have a noble tradition of developing rights second to none anywhere in the world. I also think that there are areas in which we have been shown to be deficient. There are certain people in society who have no great appeal to those who might have taken up the issues on their behalf who one can now recognise were being treated otherwise than as they should have been, prisoners are one obvious example, mental patients are another. These are cases that went to Strasbourg and the law was changed, and most people think changed for the better. I yield to nobody in my regard for the common law, but nothing is perfect. I think that the Convention has improved the position rather than otherwise.

  135. You do not think there are any contrary examples?
  (Lord Bingham of Cornhill) I do not see why there should be because the Convention prescribes a minimum and one can always do better than the minimum if one wants to. You have to, for example, bring somebody to trial within a reasonable time, but you can bring them very, very quickly provided it is fair to. You do not have to take advantage of, as it were, the worst you can get away with. No, I do not think it should be a restriction. I would just add that all courts err sometimes, all courts get things wrong. In my view they have got it wrong sometimes, but they are human and they are no different from any other court in that respect.
  (Lord Phillips of Worth Matravers) I would agree. To suggest that the Human Rights Act has not made any difference at all would be quite wrong. I think it has, sharpened-up is, perhaps, not quite the right expression, focused attention on rights which were always part of our common law rights. Now one really looks very carefully to identify the rights in a particular case.

Sir Patrick Cormack

  136. Would you describe it as major advance or minor adjustment?
  (Lord Phillips of Worth Matravers) I would say the former rather than the latter, but I am not sure that either is really an appropriate description.

Lord Goldsmith

  137. Would you describe it as bringing rights back home?
  (Lord Bingham of Cornhill) I would regard it as a major advance but not for the reasons that would be obvious. It seems to me highly destructive of popular confidence in our system of justice that people believe they have to go somewhere else outside our own jurisdiction in order to get their rights protected. If these are rights which should be protected then they should be protected here. Therefore, I think there was an insidious corruption, really, of popular confidence in the justice system, which one could not imagine existing in the United States, for example, a feeling that you would have to go somewhere else outside the United States in order to get a judge to listen to your complaint. I think myself in that respect it is a great advance, yes.

  Chairman: That is a very appropriate point at which to stop and thank both of our witnesses, Lord Bingham and Lord Phillips for appearing before us today. I am sure the Committee found it very enlightening and I hope you enjoyed your session. Thank you very much.

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