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Lord Renton: 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

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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

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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), and

    "A 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

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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.

Lord Renton: 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.

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