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Lord Haskel: My Lords, I beg to move that the House do now adjourn during pleasure until 8.35 p.m.
Moved accordingly, and, on Question, Motion agreed to: the said Address to be presented to Her Majesty by the Lords with White Staves.
[The Sitting was suspended from 7.58 p.m. to 8.35 p.m.]
Human Rights Bill [H.L.]
Lord Simon of Glaisdale: Before the noble Lord, Lord Lester of Herne Hill, moves Amendment No. 46, perhaps I may at last say something. The Government Whip kindly said that he would tell us what our bedtime would be when he came back to the Chamber.
Lord Haskel: With the permission of the Committee, the usual channels have consulted and will give a suggested finishing time at 9.30 p.m.
Lord Lester of Herne Hill moved Amendment No. 46:
The noble Lord said: In moving Amendment No. 46, I shall speak also to Amendments Nos. 50 and 56. They are designed to remove what I regard as the unnecessarily legalistic restrictions in Clause 7 on the standing needed to apply for judicial review where convention rights are at stake. They are, I hope, in accordance with the Bill's philosophy; namely, that of seeking to confer collateral advantages rather than to undermine the principles of the Bill.
There is a curious anomaly in the Bill as it stands. It is traditionally British in its main principles respecting both the English constitutional doctrine of parliamentary sovereignty and the need to provide effective British judicial remedies for breaches of convention rights. The Bill is also British in empowering all our courts and tribunals to interpret and apply the convention rather than to establish a special constitutional court. The Bill is British, too, in requiring our courts to take into account the European jurisprudence from Strasbourg but not to be ruled by it. Yet Clause 7 makes a curious and anomalous departure from this very British scheme. Instead of relying upon the well developed public law concepts--judicial review concepts--of legal standing for judicial review and other proceedings, the Bill imports a test of legal standing derived from the concept of a victim to be used by the European Court of Human Rights in interpreting and applying Article 34 of the convention, as it will be when it is amended by the 11th protocol.
The Notes on Clauses explain that Clause 7(3) provides for the purpose of the sufficient interest test in judicial review proceedings that an applicant can seek judicial review of the act of a public authority on the grounds that the act is unlawful under the Bill,
The Notes on Clauses do not explain the reasons and perceived mischief that have led the Government to seek deliberately to narrow the well-developed English
Parliament enacted Section 31(3) of the Supreme Court Act 1981 imposing a jurisdictional requirement of "sufficient interest" for an applicant to apply for judicial review of administrative action. That test of sufficient interest has also been included in Order 53, Rule 3, of the Rules of the Supreme Court. The same applies under the Scottish Rules of Court for judicial review.
I am sorry that the noble and learned Lord, Lord Woolf, is not in his place. I know that he came to this debate with the hope of being able to support the amendment. In their masterly fifth edition of Stanley De Smith's Judicial Review of Administrative Action, the noble and learned Lord, Lord Woolf, and Professor Jeffrey Jowell QC refer to the generous and sensible approach to legal standing in public law cases taken by courts not only in this country but elsewhere in the Commonwealth. They point out in their book at page 127 that on applications for judicial review, because the requirement of leave in any event acts as a satisfactory filter, the need to have standing should be no more than a convenient general principle to be taken into account by the court when determining the manner in which it should exercise its discretion as to whether to grant leave, and, when leave has been granted, as to whether to grant one of the discretionary remedies available on judicial review.
The noble and learned Lord, Lord Woolf, and Professor Jeffrey Jowell observe that a sufficient interest,
These fair, rational and well-modulated principles have worked well in practice. The test of sufficient interest, coupled with the requirement to obtain leave to apply for judicial review, and the courts' other discretionary powers provide sufficient safeguards against any abuse of judicial review by vexatious or interfering busybodies or bodies seeking an actio popularis.
Our courts have wisely interpreted the test of sufficient interest to allow public interest groups, such as the Child Poverty Action Group, the Joint Council for the Welfare of Immigrants, the Equal Opportunities Commission, or trade unions to bring cases in their own name on behalf of a class of people who are directly affected by laws and regulations. This has the advantage of enabling all the relevant matters at issue to be determined together and at an early stage in order to
I am not aware of any instances of abuse that would justify excluding such public interest proceedings in human rights cases, and I should be grateful if the noble and learned Lord the Lord Chancellor would give any such examples of abuse in his reply.
Both the Law Commission for England and Wales in its report on judicial review and the noble and learned Lord, Lord Woolf, in his report on Access to Justice welcomed this development of public interest cases, as did the Labour Party's consultation paper Bringing Rights Home. I am disappointed that the noble and learned Lord the Lord Chancellor and his colleagues apparently do not do so.
If the Government continue to refuse to establish a human rights commissioner, the subject matter of the next debate, it will be all the more important to ensure that public interest organisations have sufficient standing to pursue challenges to the legality, the fairness or the rationality and proportionality of administrative decisions interfering with convention rights. Under Clause 7 they will not be able to do so unless they can find a John Doe or a Richard Roe to stand as a token victim in the case.
Thus far I have concentrated on the just, reasonable and workable nature of the sufficient interest test, as it has been developed by our courts. I now turn to consider the other side of the coin: the complex and obscure position that will be created if the European convention test of "victim" is imported for cases under Clause 7 of the Bill, but not for other judicial review proceedings. It will then become necessary for our courts to have regard not to our well tried and tested case law on the sufficient interest test, but to a complex body of Strasbourg case law developed for the quite different purpose of interpreting a provision of the convention that will disappear next year when Protocol 11 brings the new court into existence with new procedures.
Article 25 of the present convention as it stands empowers the European Commission of Human Rights to receive petitions from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation of convention rights. Article 34 of the convention as amended by the 11th protocol will come into force next year with a similar victim test for applications to the European Court after the Commission has been abolished. The new European Court will presumably interpret Article 34 in the light of the large and complex body of case law developed by the existing Commission and Court under Article 25.
The Bill deliberately excludes the procedural rules of the European Court of Human Rights which allow third party interventions by bodies such as the Post Office Engineering Union (in Malone), or MIND (in Ashingdane), or the International Press Institute (in Lingens), or Justice (in Monnell v. Morris), or Amnesty International (in the Soering case), or the Northern Ireland Standing Advisory Commission for Human Rights, Liberty, and the Committee on the
It is well established that a public authority such as the EOC has no standing to bring a case as a victim under the convention. What that means is that the EOC, the CRE, the Fair Employment Commission for Northern Ireland or the Official Solicitor will be prevented by Clause 7 from intervening as an amicus curiae, or third party, to represent the wider public interest if they seek to rely on convention rights in any legal proceedings. For example, I was instructed by the EOC many years ago to perform that amicus role in a case called Nasse v. Science Research Council, a case where applicants were seeking discovery of employers' confidential documents for the purpose of proving discrimination cases. I relied before the House of Lords on Article 6 of the convention representing not the individual but the EOC in the wider public interest. Clause 7(1) would now prevent that because the EOC is not a victim. How, I ask myself, can that possibly be in the interests of justice, including the proper interpretation and application of the convention?
The absurdity of that anomaly is highlighted by the fact that, under Clause 5, the Bill gives the Crown the right to intervene where a court is considering whether to make a declaration of incompatibility. Yet other public authorities or public interest organisations are to have no such right of third party intervention. I do not see any justification for placing the Government in that uniquely privileged procedural position, depriving the courts of the benefit of other third party interventions. I am not aware that any other European or Commonwealth country has adopted such a narrowly exclusive rule, giving a right to intervene to the Crown and to no other person or body. As I said, such an approach is also not consistent with the rules of the European Court of Human Rights, which allow third party interventions.
Nor does the matter end there. The existing Strasbourg case law on what constitutes a "victim" is, to say the least, not entirely satisfactory. I do not understand why the Government consider that it is better for our courts to have slavishly to adopt that European case law rather than using the well-understood English statutory test of "sufficient interest".
Harris, O'Boyle and Warbrick give examples of the case law in their authoritative textbook on the law of the convention (at page 633). In the case of Open Door and Dublin Well Women v. Ireland, which concerned an Irish Supreme Court injunction against the provision of information by the applicant companies concerning abortion facilities outside Ireland, the European Commission and the Court considered that women of child-bearing age could claim to be victims since they belonged to a class of women which might be adversely affected by the restriction. On the other hand, in the case of Leigh, Guardian Newspapers Ltd. and Observer Ltd. v. United Kingdom, the applicants complained of the impact of the majority House of Lords decision in Harriet Harman's case, finding her guilty of contempt of court as a solicitor for allowing the journalist, David Leigh, to inspect confidential documents even though
To take another example, in Times Newspapers Ltd. v. United Kingdom, the commission ruled that the newspaper could not claim to be a victim of a breach of free speech under Article 10 in complaining of the unpredictability of jury damages awards in libel cases, because it had not shown that its newspapers had been inhibited from imparting information. An English court might well have reached the same conclusion in that particular case.
However, Harris, O'Boyle and Warbrick rightly observe in their textbook that these decisions demonstrate the elasticity of the notion of victim in the Commission's case law as well as the uncertain and shifting boundaries between those directly affected by a particular measure and those remotely affected by it. They also point out that, in view of the development of a concept of indirect victim, the different categories of victimhood often shade into one another. So the Strasbourg case law is not entirely consistent or predictable.
I am indebted to Justice, of whose executive and council I am proud to be a member, and to Liberty, of which I am a long-standing member, for a briefing paper prepared by Peter Duffy QC and Rabinder Singh, two very able and experienced public law advocates--
Page 4, leave out line 26.
"only if he is, or would be, a victim of that act".
"This means that the ability to apply for judicial review on convention grounds which is narrower than for judicial review applications otherwise corresponds to the standing or locus test under Article 34 of the convention itself for bringing complaints to the European Court of Human Rights".
"has to receive a generous interpretation. It has to be treated as a broad and flexible test ... A great variety of factors are capable of qualifying as sufficient interest. They are not confined to property or financial or other legal interests. They can include civic (or community), environmental and cultural interests. The interests can be future or contingent ... The gravity of the issue which is the subject of the application is a factor taken into account in determining the outcome of questions of standing. The more serious the issue at stake the less significance will be attached to arguments based on the applicant's alleged lack of standing ... In deciding what, if any remedy to grant as a matter of discretion, the Court will take into account the extent of the applicant's interest. At this stage different remedies may require a different involvement by the applicant".
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