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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.

I 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

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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

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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 terms 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

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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.

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