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Lord Goodhart: Can the noble and learned Lord the Lord Chancellor say what is the position of a public interest group which, having perfectly properly brought proceedings under Clause 13 of the Bill on grounds
which do not involve convention rights, then finds that in those same proceedings it is unable to raise issues of convention rights because of Clause 7?
The Lord Chancellor: I shall come to that in a moment. I do not believe, for reasons I shall explain in a moment, that that consequence will follow.
I focus first on the essential and critical point--that is, whether there should be a victim test in relation to a complaint of an unlawful act on convention grounds. Essentially we believe the victim/potential victim test to be right. If there is unlawful action or if unlawful action is threatened, then there will be victims or potential victims who will complain and who will in practice be supported by interest groups. If there are no victims, the issue is probably academic and the courts should not be troubled.
We are right to mirror the law as Strasbourg applies it. I understand that to be generally accepted by Members of the Committee who have spoken in favour of the amendment. But they depart from that because of a greater affection for the English judicial review test than for the Strasbourg victim test in relation to convention cases.
I propose to complete my explanation and then, with my customary good nature, I shall cheerfully give way. But only after I have made the point fully so that Members of the Committee who wish to invite me to agree that there is a defect in my explanation have had the advantage of hearing the whole and not part of what I am saying.
I turn to the point that has been much made by the noble Lord, Lord Lester, in relation to third party intervention. The European Court of Human Rights rules of procedure allow non-parties such as national and international non-governmental organisations to make written submissions in the form of a brief. There is no reason why any change to primary legislation in this Bill is needed to allow the domestic courts to develop a similar practice in human rights cases, which is the answer to the noble Lord's question on how I would respond to the point that an interest group would have the right to be heard in a judicial review case under the English domestic test but that, if there was not a victim, could the individual interest group be heard on the convention point? So now, in its proper context, I address an answer to that question.
This is a development--that is to say, allowing third parties to intervene and be heard--which has already begun in the higher courts of this country in public law cases. Provisions as to standing are quite different. They determine who can become parties to the proceedings. The standing rule which the Bill proposes in relation to convention cases simpliciter is identical to that operated at Strasbourg; and why not? Is that not right in principle? It would not, however, prevent the acceptance by the courts in this country of non-governmental organisational briefs here any more than it does in Strasbourg.
Your Lordships' House, in its judicial capacity, has recently given leave for non-governmental organisations to intervene and file amicus briefs. It has done that in
Queen v. Khan for the benefit of Liberty and it has done that in Queen v. Secretary of State for the Home Department ex parte Venables and Thompson for the benefit of Justice. So it appears to me, as at present advised, that the natural position to take is to adopt the victim test as applied by Strasbourg when complaint is made of a denial of convention rights, recognising that our courts will be ready to permit amicus written briefs from non-governmental organisations; that is to say briefs, but not to treat them as full parties.9.15 p.m.
Lord Lester of Herne Hill: I am grateful to the Lord Chancellor for giving way. I should like to ask him two questions in order to clarify his helpful and informative speech so far. First, does he agree that one of the disadvantages of the victim test is that it will compel our courts to have to familiarise themselves with a so far unfamiliar and complicated body of case law in Strasbourg, largely developed by the Human Rights Commission, as to what does or does not constitute a direct or indirect victim? Is that not a disadvantage?
Secondly, although he has helpfully indicated his own view that there is nothing in the Bill to prevent third party written interventions--I dare say he would concede oral interventions--will he explain the following point? Clause 7(1)(a) deals with a person who brings proceedings against the authority. I can understand there that he wishes to adopt the victim test. However, Clause 7(1)(b) does not deal with the applicant but anyone who does not bring proceedings and seeks to,
- "rely on the Convention right or rights ...in any legal proceedings".
Does he agree with me that on its face that would seem to preclude a third party who seeks to rely on the convention--whether it is the EOC for Great Britain, the Official Solicitor instructing an amicus curiae, a trade union, the Child Poverty Action Group, Justice, or Liberty? They are not applicants within Clause 7(1)(a) but within Clause 7(1)(b) they seek to rely on a convention right in legal proceedings; and then we are told in the tailpiece that they can do so only if they are a victim of the unlawful act. Does not that language require an amendment so as to free the third party intervener who wishes to rely on a convention right?
Finally, can the Lord Chancellor please explain why our courts should be in blinkers when the European Court of Human Rights in this context would be unblinkered in being able to deal with the matter?
The Lord Chancellor: I disagree with both the noble Lord's points. First, he says that a disadvantage of the victim test is that this will put the burden on English lawyers and on the English courts of learning about Strasbourg law on victims. The incorporation of the Bill will put a burden on all lawyers and courts to learn a great deal more about Strasbourg jurisprudence. I do not think that there is any particular burden in learning about the victim test that Strasbourg applies, which appears to me to be entirely intelligible and which requires an actual or potential victim and therefore precludes academic cases.
- "A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may--
- (b) rely on the Convention right or rights concerned in any legal proceedings"--
to my mind that entails a party--
- "but only if he is (or would be) a victim of the unlawful act".
It does not touch a third party who has not ex hypothesi been the victim of the infringement of a convention right. It in no way precludes a third party from making submissions about the implication of convention rights in written briefs if a written brief is invited or accepted by the court, as I believe will happen.
As regards oral interventions by a third party, I dare say that the courts will be equally hospitable to oral interventions provided that they are brief.
Lord Campbell of Alloway: I thank the noble and learned Lord the Lord Chancellor for his masterly exposition of the situation and for the patience with which he has entertained this whole matter. In the light of his explanation I realise that I was wrong to accept this amendment and support it. I am wholly convinced by the clarity of the exposition. I acknowledge an erstwhile opponent with great pleasure.
Lord Mackay of Drumadoon: As a Scots lawyer I intervene with a certain diffidence in this private conversation between my English colleagues. If it be the case, as I believe it is, that the Scottish courts would not entertain third party interveners in civil proceedings in the same way as the English courts might do, is there not a risk that by leaving this matter to the courts to work out the practice, there may develop a different practice in Scotland from that in England when dealing with the same United Kingdom Bill? If it is the objective of the Bill to bring rights home, is it not correct that they should be as fully brought home in one jurisdiction as in another? It may be that that is a matter on which the noble and learned Lord the Lord Chancellor wishes to reflect at further length. I do not understand that the Scottish courts would welcome either written or oral submissions from third party interveners as their English brethren do.
The Lord Chancellor: It is no part of the intention of this Bill to alter the standing rules in relation to judicial review in either England or Scotland. It is no part of the intention of this Bill to impose uniformity on the Scottish courts--that is to say, to be uniform with England and Wales--in relation to the rules of practice of the English courts which I have described in permitting third party interventions by way of a written brief. It is part of the intention of this Bill to import the Strasbourg victim test in relation to complaints based solely on denial of convention rights. That appears to us to be right in principle.
Lord Kingsland: The noble and learned Lord may recall an amendment that I proposed earlier to Clause 2(1). It concerned the extent to which decisions
of the European Court of Human Rights would be binding on our own courts. The expression used in Clause 2(1) is that,
- "A court or tribunal determining a question which has arisen under this Act in connection with a Convention Right must take into account any--
- (a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights".
At the time, the noble and learned Lord spoke about the enriching effect which the decisions of our own courts would have on the substance of the law of the convention. I perfectly understood that argument, although I respectfully disagreed with him. In other words, our own courts are not bound by the decisions of the Strasbourg court on the substance of the law. However, now that we are considering matters of procedure, it seems that the opposite rule applies: whereas we are not bound by the decisions of the European Court of Human Rights on the substance of the law, we appear to be bound by the system of rules of procedure of the European Court. This strikes me--does it not strike the noble and learned Lord?--as being a somewhat unbalanced approach. I put it to the noble and learned Lord that, if anything, he has got it the wrong way round. If we are to demonstrate flexibility, it ought to be in respect of matters of procedure, not in respect of matters of substance.
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