Joint Committee On Human Rights Fourth Report


22. In our First Report, we drew attention to a number of provisions with human rights implications in the Court Bill, in relation to which our Chair had written to the Lord Chancellor seeking replies to questions.[19] The Lord Chancellor replied in a letter of 10 January 2003.[20] We have given further consideration to the Bill in the light of the Lord Chancellor's reply, and now report our views on the matters raised.

Explanatory Notes

23. We raised in our previous report the inadequacy of the Explanatory Notes in relation to the Courts Bill in respect of human rights matters. We welcome the Lord Chancellor's acceptance that the Explanatory Notes could have contained further commentary on the implications of the Bill for Convention rights, and his undertaking to ensure that a revised set of Explanatory Notes, including a brief explanation of any Convention rights that are engaged, is published as soon as possible after Committee. As we noted in our Third Report,[21] we regard the most recent guidance, issued to Departments on this matter by the Lord Chancellor's Department, as representing good practice.

Dismissing Justices of the Peace

24. We noted in our First Report[22] that clause 11(6) of the Bill would take the welcome step of delimiting the Lord Chancellor's power, in the name of Her Majesty, to remove a JP: removal would be allowed only (a) on the ground of incapacity or misbehaviour, or (b) if satisfied that the JP is declining or neglecting to take a proper part in the exercise of his or her functions as a JP. We were concerned, nevertheless, that it could leave in place a potential threat to the institutional independence of JPs to allow a member of the executive—in fact, a Cabinet Minister—to make the decision to remove a JP. We asked the Lord Chancellor why he considers that this provision would be compatible with the right of litigants before JPs to a hearing by an independent tribunal as required by ECHR Article 6.1.

25. In his reply, the Lord Chancellor said that the circumstances in which (and procedure by which) the power is, and would continue to be, exercised are set out in the Directions for Advisory Committees on Justices of the Peace. Two challenges in magistrates' courts to the independence of JPs had failed, on the ground that there were adequate safeguards for independence, and the matter had not been pursued in higher courts. Furthermore, a decision to remove a JP would be amenable to judicial review, which would give judicial protection against an procedural impropriety and arbitrariness. In the light of this, we accept that these provisions of the Bill are unlikely to give rise to a significant risk of incompatibility with ECHR Article 6.1.

Immunity of JPs from civil liability

26. We were concerned that the re-enactment (by clauses 26 and 27 of the Bill) of provisions on the immunity of JPs from legal liability for acts and omissions in the execution of their duties as JPs, and the similar immunity of justices' clerks and assistant clerks when exercising the functions of JPs, might be taken as overriding the right of a person who is detained in violation of ECHR Article 5 to compensation under section 9 of the Human Rights Act 1998 and Article 5.5 of the ECHR. We therefore asked the Lord Chancellor whether it would be desirable, for the avoidance of doubt, to amend clauses 26 and 27 to clarify the continued applicability of section 9 of the Human Rights Act 1998. In his reply, the Lord Chancellor pointed out that the right to compensation arises under section 9 of the 1998 Act against the Crown whether or not the justices are personally liable. We accept the Government's reasoning, and agree that no amendment to the clause is necessary.

Disqualification of lay justices who are members of local authorities

27. While welcoming the general tenor of clause 36 (which would provide that JPs who are members of local authorities would be disqualified from acting as a member of a court in proceedings brought by or against, or by way of appeal against a decision of, the local authority, a committee or officer of the authority, or the executive of the local authority, and certain other related bodies), we asked the Lord Chancellor to explain the effect of clause 36(5): "No act is invalidated merely because of the disqualification under this section of the person by whom it is done." We wondered whether this would leave open the possibility that a person might (for example) be convicted by a bench including a disqualified person, yet the conviction would remain valid, threatening the right to an "impartial tribunal" under ECHR Article 6.1.

28. In his reply, the Lord Chancellor explained that in the Government's view the word "merely" would have the effect of still allowing an adjudication to be quashed when required by ECHR Article 6.1 or the common law rule against bias, while avoiding invalidity where the sitting of the disqualified JP was not incompatible with any other rule of law. The Government's response adequately answers our concern, and in our view means that the provision in clause 36 of the Courts Bill would not give rise to any significant risk of incompatibility with Article 6.1.

Effect of Act of Settlement 1700 on existing JPs

29. Before 31 January 2002, some people born outside the United Kingdom and its dominions were appointed to be JPs, in breach of the prohibition on such appointments by section 3 of the Act of Settlement 1700. Clause 37 of the Bill would retrospectively validate those appointments and any act done by virtue of such an appointment. We were concerned that this might have the effect of leaving people affected by orders of an invalidly appointed JP without any remedy for acts or omissions which were unlawful at the time of their occurrence. We asked the Lord Chancellor why the Government was satisfied that the provision would be compatible with Convention rights. We were particularly concerned with the possibility that acts or omissions might have involved the determination of a civil right or obligation or of a criminal charge. In that case, retrospective validation might, we thought—

  • thereby violate the right of access to a court under Article 6.1, and/or

  • violate the right to an effective remedy for violations of Convention rights under ECHR Article 13 (which is not a Convention right within the meaning of the Human Rights Act 1998, but binds the United Kingdom in international law).

If the acts or omissions led to a person being deprived of his or her liberty otherwise than in accordance with a procedure prescribed by law, contrary to ECHR Article 5.1, clause 37 of the Bill could also lead to a violation of the right to compensation under ECHR Article 5.5.

30. The Lord Chancellor replied that the clause would not change the common law, under which adjudications by foreign nationals were valid, by virtue of the doctrine of de facto authority,[23] until it became apparent that their appointments were defective. The effect of the doctrine is that the acts of a judge "may be held to be valid in law even though his own appointment is invalid and in truth he has no legal power at all. The logic of annulling all his acts has to yield to the desirability of upholding them where he has acted in the office under a general supposition of his competence to do so".[24] The doctrine applies only where the person has some "colourable authority" for acting, and there is no reason to suppose that the appointment is invalid.

31. The history and scope of the doctrine were discussed by the Court of Appeal in a recent decision[25] concerning a circuit judge who had sat as a judge of the Queen's Bench Division of the High Court. She was authorised to sit as a judge of the Family Division of the High Court and the Technology and Construction Court, but had not been "ticketed" to sit as a judge of Queen's Bench Division in other cases. The Court of Appeal unanimously held that, on the facts, the judge had had de jure authority to sit. Nevertheless, the judges went on to consider whether the judge would have had de facto authority had she not been held to have de jure authority. Hale L.J. thought that the de facto doctrine applied to the judge, because—

Judge Davies is indeed a judge, validly appointed as such. All those involved in arranging for her to hear this case believed that the case had been validly assigned to her. She herself believed the same. She sat as such and was treated as such by everyone involved....It could not be said that her want of authority was notorious.

It is not necessary to express a view upon whether the doctrine would apply had the circumstances been different ... .[26]

Hale L.J. went on to express the view that the de facto doctrine was compatible with the right to a hearing by a tribunal established by law under ECHR Article 6.1, because the doctrine is a rule of law and is sufficiently accessible and foreseeable.[27] Her Ladyship concluded that the doctrine "is not there, in modern times, to protect usurpers. Rather it protects the individual citizen, who had good reason to think that he was appearing before a properly constituted court, acted accordingly and should not without more be deprived of the rights he has established as a result".[28]

32. In that case, Ward L.J. was clear that the de facto doctrine would apply, while reserving his opinion on questions about the limits of the doctrine.[29] Sedley L.J. was rather more doubtful about the effect and applicability of the de facto doctrine to the facts of the particular case.[30] On the more general issue his Lordship said, "In such a highly problematical area, different objectives of legal and public policy can pull in different directions and legal doctrine begins to verge on the metaphysical. But a point must come at which the undesirability of undoing ostensibly valid judgments has to yield to the greater undesirability of letting unqualified people adjudicate on people's legal rights and obligations. It is clear that the last word has not been said about this ..."[31]

33. This is clearly a difficult area of law and legal policy. We have no authority to resolve the issues, and would in any event be unlikely to be able to reach a satisfactory formulation of the principles involved. Nevertheless, we regard certain matters as being clear. First, the general scope of the de facto doctrine is uncertain. Secondly, its effect on the rights of people affected by the acts of someone purporting to be a JP is not entirely clear, since "it is a mistake to suppose that the consequences of invalidity should be worked out with rigid logic and without regard to facts".[32] We note that the Government considers it to be desirable to declare (without changing) the position at common law, a step that would arguably be unnecessary were the effect of the common law clear. Thirdly, there are good reasons for upholding the finality of decisions in proceedings between private parties, or affecting the rights and interests of the public at large, for example licensing decisions, where people rely on knowing the outcome in order to act on it. Fourthly, in some (if not all) criminal proceedings, the person most closely affected by the decision is the defendant; there will often be no interests of third parties favouring the upholding of a conviction where the tribunal was not validly appointed. We bear in mind the view of Hale L.J. that the purpose of the doctrine today is to protect individual citizens. Fifthly, there are good legal and practical reasons for not allowing unqualified people to determine criminal charges and civil rights or obligations.

34. In the light of these considerations, we are not convinced that the doctrine of de facto authority would always or necessarily suffice to provide a party appearing before an invalidly appointed person, purporting to act as a JP, with a hearing by a tribunal established by law as required by ECHR Article 6.1 in the determination of civil rights and obligations or criminal charges. Although the practical effect may be negligible in this particular case, the doctrine of de facto authority gives rise to potentially very wide issues under Article 6, and affects the principle of legal certainty in a complex way. We therefore consider that there is a risk of incompatibility with rights under Article 6 which we feel should be drawn to the attention of each House.

Appeals from the Court of Appeal (Criminal Division)

35. Clause 83 would extend the time allowed for the prosecution (but not the defence) to apply to that Court for leave to appeal to the House of Lords, or to apply to the House of Lords for leave to appeal after the Court of Appeal has refused leave. In each case, the prosecution would have 28 days. The defendant would continue to be allowed only 14 days. We asked the Lord Chancellor why the Government was satisfied that this would be compatible with the principle of equality of arms which forms an element of the right to a fair hearing under ECHR Article 6.1. In reply, the Lord Chancellor pointed out that at present both prosecution and defence have 14 days to appeal, but the defence (unlike the prosecution) can ask the Court of Appeal or (as the case may be) the House of Lords to extend the time for applying for leave to appeal. Under clause 83, the prosecution would have a non-extendable period of 28 days as of right; the defence would have 14 days as of right, and that period could still be extended in the discretion of the Court of Appeal or House of Lords. Because the defence could apply at any time for an extension, the Government considers that there would be no violation of Article 6.1.

36. We see the purpose which the clause seeks to achieve. However, we note that, between the end of the 14 day period and the end of the 28 day period, the prosecution would be able to apply as of right, whereas the defence would have to satisfy the court or House that there are grounds for allowing an extension of the 14 day period. In order to forestall arguments about equality of arms under ECHR Article 6.1, we consider that it would be appropriate either to allow 28 days to the defence as of right, or to allow the Court of Appeal or House of Lords to extend the time allowed to the prosecution beyond 14 days, up to a maximum of 28 days. We draw this to the attention of each House.

Setting the level of fees

37. We welcome the decision of the Government to amend clause 87 of the Bill, dealing with orders setting the level of court fees, so that for the first time such orders (which have an impact on the ability of litigants to have access to the courts) would be subject to annulment by resolution of either House.[33]

19   First Report of 2002-03, Scrutiny of Bills: Progress Report, HL Paper 24, HC 191, paras. 30-39 and Ev 25-27 Back

20   The letter is reproduced in an appendix to this Report, Ev 17-Ev 19 Back

21   Joint Committee on Human Rights, Third Report of Session 2002-03, Scrutiny of Bills: Further Progress Report, HL Paper 41, HC 375, p. 7, para. 4. See also the written answer given by the Lord Chancellor to a question put by Lord Lester of Herne Hill, a member of this Committee: HL Deb., 29 January 2003, c. WA 154. Back

22   para. 33 Back

23   In an e-mail message of 28 January 2003, the Department drew attention to the discussion of this doctrine in H. W. R. Wade and C. R. Forsyth, Administrative Law 8th ed. (Oxford: Oxford University Press, 2000), pp. 291-4, and Fawdry & Co. (a firm) v. Murfitt [2002] EWCA Civ 643, CA, particularly the judgment of Hale L.J. at paras. 18-36 Back

24   Wade and Forsyth, op. cit., pp. 291-2 (footnote omitted) Back

25   Fawdry & Co. (a firm) v. Murfitt [2002] EWCA Civ 643, CA Back

26   ibid., paras. 29-30 Back

27   ibid., paras. 31-36 Back

28   ibid., para. 36 Back

29   ibid., paras. 59-62 Back

30   ibid., para. 40 Back

31   ibid., paras. 47-48 Back

32   Wade and Forsyth, op. cit., p. 293 Back

33   See the recommendation of the House of Lords Select Committee on Delegated Powers and Regulatory Reform, Second Report of 2002-03, HL Paper 20, para. 18 Back

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