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The Lord Chancellor: I certainly do not undertake to give the noble Lord an answer to that either extempore or
in writing. I have grave reservations about giving legal advice from the Dispatch Box, which of course the noble Lord is well able to give to himself, which will then be transmuted by the doctrine of Pepper v. Hart into what the Government intended as a result of this provision of the Bill. I am very self-restrained about doing that. I am tempted simply to rely upon the answer that in the circumstances to which the noble Lord alludes an award of damages will be made if-- I quote from Clause 8(3)--
- "the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made".
I feel a moderate degree of confidence that the noble Lord could argue both sides of that question depending upon the client who instructed him.
Lord Mackay of Drumadoon: I am grateful to the noble and learned Lord the Lord Chancellor for his reply which I think I anticipated. However, it will be of interest to those who suggested this was an appropriate issue to raise. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 9 [Acts of courts and tribunals]:
The Deputy Chairman of Committees (Lord Cocks of Hartcliffe): I understand that the noble and learned Lord, Lord Wilberforce, does not wish to move Amendment No. 60.
Lord Meston moved Amendment No. 61:
The noble Lord said: I shall speak briefly. Clause 9(3) provides a general immunity for acts of courts. However, the relationship between this subsection and Article 5(5) of the convention--which the Committee will find on page 14 of the Bill--needs to be addressed. Article 5(5) gives an enforceable right to compensation to those who have been victims of arrest or detention in contravention of the provisions of Article 5. In this respect the United Kingdom has been in breach of Article 5(5) for a long time. Clause 9(3) of the Bill seems to preserve that continuing breach. It should be possible to introduce a scheme of compensation for those who are victims of arrest or detention in breach of the convention without affecting the important personal immunity of judges and magistrates. I beg to move.
The Lord Chancellor: This amendment inserts an exception to the general provisions of Clause 9(3) so that damages could not be awarded in proceedings under this Act in respect of any act of a court,
The effect of the amendment would be to enable people to obtain damages in respect of acts of courts which are in contravention of the provisions of Article 5. The Government are aware that Clause 9, as currently drafted, makes no explicit provision for the requirement of Article 5(5) that everyone who has been the victim
Clause 8 provides for such an enforceable right to compensation in relation to public authorities generally. Clause 9, as currently drafted, preserves the common law and statutory rules which, broadly speaking, provide that the Crown is not liable in tort in respect of judicial acts and that judges and magistrates acting within their jurisdiction, or outside their jurisdiction if doing so in good faith, are immune from having proceedings brought against them personally.
I can assure the noble Lord, Lord Meston, that the Government are alive to the need to make appropriate provisions for the Article 5(5) requirement and are considering how best to give effect to this obligation in relation to courts and tribunals. I am delighted that the noble and learned Lord, Lord Simon of Glaisdale, remains in his place to hear me in my non-Mephistophelean mode. In particular, the Government are considering the interrelationship between that obligation and the existing laws and judicial immunity and Crown liability for the acts and omissions of the courts. The Government are considering possible provisions that may be required at Report stage.
We welcome this opportunity to hear the view of the noble Lord on how best we might give effect to the obligation to provide a right to compensation. The Government will consider more fully the issues which we should take into account in considering how to address this matter. If the noble Lord desires to write to me on the subject, that would be welcome. An amendment on the lines of the one before the Committee now may prove to be the best way of achieving that aim. But it would be preferable, I think, if the complex and delicate issues of judicial immunity and Crown liability for judicial decisions could be considered a little more thoroughly before an amendment is made to this clause; and, perhaps because of the late hour at which this amendment has been taken, we have not had the fuller debate on this issue which we might otherwise have had.
Therefore at present I ask that the noble Lord withdraws the amendment against my undertaking that we shall consider it positively and with care.
Lord Meston: In view of that answer, I am happy to beg leave to withdraw the amendment. I express gratitude that the constant battering of the noble and learned Lord, Lord Simon of Glaisdale, has produced such flexibility, albeit rather late in the day.
Amendment, by leave, withdrawn.
Lord Henley: As regards Amendment No. 63, I suspect that this---
Lord Simon of Glaisdale: Before the noble Lord sits down, are we really going to start a debate on legal aid at almost eleven o'clock?
Lord Henley: I am sympathetic---
Lord Simon of Glaisdale: I did not hear the answer to my question.
Lord Henley: I was about to give it, if I may. I suspect that it is not for me to answer; it is for the Government Chief Whip. I am sympathetic to what the noble and learned Lord says. I do not think that it is the right time to have a long debate on legal aid. I was not sure that we were to have a long debate on legal aid. I put down the amendment merely by way of a probing amendment in order to ask a number of questions of the Government about the Cardiff speech by the noble and learned Lord the Lord Chancellor on the separate fund for human rights issues, the Green Paper he proposes to bring forward on these matters and about how the legal aid issues will affect both England and Scotland.
As I understand it, I am not now speaking to the amendment. I seek advice at this stage as to whether I can move the amendment on Thursday and address it on that occasion, having given some forewarning of the few brief issues that I wish to pursue. I suspect that the best course is not to move the amendment now.
Lord Carter: In order to help the proceedings of the Committee, I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
Page 5, line 42, at beginning insert ("Except insofar as is required under Article 5(5) of the Convention,").
"Except insofar as is required under Article 5(5) of the Convention".
24 Nov 1997 : Column 857House adjourned at eleven o'clock.
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