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Lord Lester of Herne Hill: I do not believe that it is correct that I can be as effective an advocate in favour of the amendments as the noble and learned Lord, Lord Simon of Glaisdale, but I shall do my best. I shall speak, in particular, to Amendment No. 93 as part of the grouping, because what we are concerned with is not the particular form of the amendment but the principle itself.
Amendment No. 93 is a modest amendment. It gives the Secretary of State the power, and not the duty, to appoint a human rights commissioner. The commissioner may perform any or all of a number of prescribed functions. But his or her primary role would be to provide assistance, including legal and financial assistance, to persons bringing, or proposing to bring, proceedings under the Human Rights Bill, and of course to assist the courts with the proper interpretation and application of this new and important law.
The costs of the office of the commissioner would be comparatively small. If its functions were confined, as my amendments would confine them, I would expect them not to amount to more than £2 million or £3 million a year for the kind of functions that I have in mind. It is imperative that incorporation of the convention enhances effective access to justice, because incorporation will mean that everyone will have to exhaust his or her domestic remedies all the way to this place if necessary. If the right of access to the courts guaranteed by Article 6 of the convention is to be real and effective and not illusory, litigants must not be deterred unnecessarily by the absence of legal aid in advance or by the risks of having to pay the costs of the other side.
It is important also that the courts are assisted in the way that they have been by the EOC, the CRE and the Fair Employment Commission for Northern Ireland--assisted by properly argued cases by an expert human rights commissioner. The need for effective access to justice in relation to the Human Rights Bill was recognised by the Government in their pre-election manifesto Bringing Rights Home. It was stated that after the passage of the Bill it was important to:
It was envisaged that one way forward would be for the Bill to establish a human rights commission or commissioner to take on some or all of the roles described. I recognise that part of those functions would be performed by a parliamentary Select Committee on human rights in relation to the holding of some inquiries and other matters, not in terms of effective access to justice.
The possibility of a human rights commission or commissioner was also raised in the Joint Labour and Liberal Democrat Consultative Committee on Constitutional Reform. It was there agreed that a human rights commission or commissioner would provide advice and assistance to those seeking the protection of the rights enshrined in the convention and be itself able to bring proceedings to secure effective compliance with the ECHR, whether by judicial review or by representative proceedings on behalf of a number of people. There was an addendum to that report, initialled as I recall by the present Home Secretary and myself, which explained that there should be a human rights commission or commissioner, or similar public body, providing advice and assistance and being able itself to bring proceedings to secure effective compliance with the convention whether by way of judicial review or by representative proceedings on behalf of a number of people.
By my amendment, I merely seek to provide the means whereby those pre-election agreements and the views expressed by a wide variety of public interest bodies can be implemented at some time in the reasonably near future. The amendment envisages a very modestly funded public authority with carefully defined powers to give advice and assistance and bring proceedings in its own name. I am encouraged by the fact that the Government have not closed their minds to the idea of a human rights commissioner or commission. I am also encouraged by the comments made by the noble and learned Lord the Lord Chancellor in his important address to the Solicitors' Annual Conference in Cardiff on 18th October when he observed that the civil justice system,
Even in the absence of a human rights commission or commissioner, it would be very welcome if the Government were to adopt the recommendation of the noble and learned Lord, Lord Woolf, regarding legal issues of public importance where the courts should have a discretion to order that such costs be paid out of public funds or to order at the leave stage that an unsuccessful applicant will not have to pay the respondent's costs where the court is satisfied that the proceedings have been brought in the public interest.
The key question here is whether the Government are to provide the means to enable effective access to justice to be provided--and I recognise that there may be some kind of special fund which would go some way towards fulfilling that need--and whether there is to be an expert body able to marshall the arguments and the evidence and have authority before the courts in enabling test cases to be properly mounted and argued.
The establishment of a commission or commissioner of the kind suggested has the support of a wide range of human rights and professional organisations, including the Bar Council, Liberty, Justice, the Institute for Public Policy Research, Charter 88, the Data Protection Registrar, the Commission for Racial Equality, the Children Rights Office, and so on. Indeed, the list is long. There are only two arguments that come to my mind against the creation of such a commission. The first is public expense. I have already indicated that I would regard the body that I have in mind as not having access to very large public funds. Secondly, there is the argument that we should wait until we look at the enforcement agencies under the existing anti-discrimination legislation in order to see what should be done about them.
I have been careful in my amendment not in any way to deal with that wider question. It seems to me that it is a wholly separate issue. We certainly need to reform the enforcement of our anti-discrimination legislation. We need to harmonise and make more effective the enforcement procedures under those statutes. Professor B.A. Hepple, myself and other lawyers have prepared papers dealing with that question. But this commissioner is not to have any functions which might involve the Commission for Racial Equality, the Equal Opportunities Commission or the Fair Employment Commission. That is why I have deliberately kept the function narrow.
The amendment in the name of the noble and learned Lord, Lord Simon of Glaisdale, is wider. I certainly support that as an equally powerful model to be put forward. I have not addressed questions about public education or research. I know that my noble friend Lady Williams of Crosby wishes to address that wider issue. I am focusing on effective access to justice and helping the courts and tribunals. I suggest that it is as important to have this commissioner as it is to spend money on training for which there are to be ample funds available under the auspices of the Judicial Studies Board. It is vital that there be an authority, a public interest body able to assist in that way.
Lord Renton: I have to say that I am very worried about the prospect of a human rights commissioner as set out in either of these amendments, more especially, if I may say so with deep respect, in the amendment in the name of the noble Lord, Lord Lester, because it appears there that the commissioner's duties will be mandatory and have to apply in every case. If we look at the wording carefully he is,
The amendment of the noble and learned Lord, Lord Simon of Glaisdale, does not have that defect. It uses the words "where necessary" and that makes it rather less obligatory, but I do not know who will decide whether it is necessary or not.
In any event, as the Government made quite clear on the last but one page of their White Paper, there are various bodies in this country already which have responsibilities for protecting human rights. It seems to me to be overdoing it to give the commissioner the sort of powers that are proposed as well as those bodies having them. I refer in particular to paragraph 3.9 of the White Paper which refers to the impact--that is the impact of a commissioner--
What worries me rather is that if we have the kind of jurisdiction asserted under either of these amendments given to a human rights commissioner, it will not only make the procedure for getting justice done before our courts terribly elaborate but it will actually cause delay. That, I think, is something that we should avoid. Therefore I hope that my noble friends on the Opposition Front Bench will not support either of these amendments and I hope that the Government will give good reasons for not doing so.
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