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Baroness Carnegy of Lour: Members of the public are aware of the problem as a result of reading newspapers. Groups and individuals can cause problems as described. Will the noble and learned Lord the Lord Advocate tell the Committee whether such a problem exists south of the Border? If so, perhaps the Government will consider the amendment with a view to widening the provision.

4 p.m.

The Lord Advocate (Lord Hardie): Perhaps I may first deal with the point raised by the noble Baroness, Lady Carnegy. I understand that in England, as in Scotland, there are occasionally problems with party litigants. However, I understand that those problems are dealt with by the judges and the lawyers concerned. It is a question of the judges managing the cases properly. I do not understand there to be a serious problem in England because the judges do manage the cases.

I have listened carefully to the argument advanced by the noble and learned Lord in support of the amendments, which I note have effect only in Scotland, as the noble Baroness observed. However, the noble and learned Lord has failed to persuade me that, by accepting the amendments, I should not discriminate to an unacceptable extent against a party who chooses, for whatever reason, to represent his own interests before a court or tribunal in Scotland. That would be so even if it fell to the tribunal adjudicating on the convention right in question to assess the merits of a party litigant's claim.

The entitlement to vindicate one's legal rights in person is fundamental to our legal system and is, indeed, specifically entrenched in the case of criminal proceedings, in Article 6 of the convention. The effect of these amendments would be to impose a significant hurdle in the way of a party who chooses to avail himself of his right to appear on his own behalf when no similar obstacle is put in the way of the represented party. The requirement for application to the Court of Session as opposed to the tribunal adjudicating upon the convention right merely increases the size of that hurdle. It would be particularly unfortunate in the criminal courts in that a defendant would be unable to use his rights without leave.

I should like to give your Lordships a practical example of the discriminatory effect of these amendments. If a convention right became an issue in

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proceedings before an industrial tribunal, a party representing himself would be put to the considerable trouble and expense of seeking leave from the Court of Session to continue to represent himself when arguing the convention point before the tribunal. Delay, too, would be inevitable. I am sure that the Committee will agree that delay is in no one's interest. At the same time another party, who might be represented before the tribunal by a trade union official who would have a right of audience before that tribunal, would not need to seek leave. That would be patently discriminatory.

I understand fully the noble and learned Lord's concerns and the concerns of the judges that there is a risk that the courts will be burdened with spurious claims in respect of convention rights which might not have been raised if the party making the claim had access to legal advice. I cannot, however, accept the proposition that the way to deal with such claims is to create a system which favours the represented party by creating a barrier for the unrepresented. The unrepresented party, after all, is in need of greater assistance than the represented party in vindicating his rights and it is my understanding that the courts in Scotland and tribunals sitting there have a long and honourable tradition of support to the litigant who chooses to appear in his own behalf. Indeed, opposing counsel has a duty to draw to the attention of the court cases and authorities in favour of the opponent, particularly when the opponent is unrepresented. The creation of obstacles which only the party litigant is required to surmount would not be consistent with that fine tradition in Scotland.

In addition, I should mention that there is already a mechanism in place which enables the Lord Advocate to seek to have access to the civil courts by a vexatious litigant restricted, and this can be used to ensure that leave is required in the case of persistent litigants in convention cases as in any other case.

There are three further points that I wish to make. The first relates to the point made by the noble and learned Lord, Lord Mackay of Drumadoon, that in Scotland, unlike England, there is no need for leave of the court to present a petition for judicial review. The noble and learned Lord is correct to say that, but there is an exception. If a party litigant wishes to present a petition for judicial review, he requires to obtain the consent of the court to lodge the petition. Therefore, there is a requirement of leave in the case of a party litigant in that situation.

The next point that I wish to make is that the amendments are contrary to the Government's stated policy of "bringing rights home". They would make it more difficult for a person to enforce his rights in our domestic courts, in that he would be able to do so only if he were legally represented unless the Court of Session separately conferred a right on that person, a right which he has in any event.

Finally, as I observed at the outset, the amendment relates only to proceedings in Scotland. The position of a party litigant in Scotland does not differ significantly from the position in England and Wales. The imposition of such a burden on parties in Scotland alone would be discriminatory between the two jurisdictions.

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As I hinted earlier in my answer to the noble Baroness, Lady Carnegy, the position can be resolved by the judges managing cases. It is for the judges to take control of cases which come before them. If they perceive that people are abusing process, it is a matter for them and the remedy is in their hands. They can take steps to ensure that cases are conducted properly before the courts.

I hope that on further consideration and in the light of my comments, the noble and learned Lord is now persuaded that he should seek leave to withdraw the amendment.

Lord Mackay of Drumadoon: I am most grateful to the noble and learned Lord the Lord Advocate for his very full response to the amendment. I know that everything that he said will be read with great interest by the senior judges in Scotland.

I should like to think that up until now they have done everything they can to manage cases to the best of their ability. I am sure that the noble and learned Lord and I, in the course of our careers, have appeared against party litigants and we did all that we could to assist.

As I observed earlier in this Committee stage, there is less of a warm welcome for this Bill north of the Border than may be apparent here. As is reflected in this amendment, there is some concern in relation to the practical impact on the courts. Picking up from what my noble friend Lord Henley said on the last amendment and what I said on Monday night, I hope that, before long, the Government will be able to tell us all in Scotland which courts will have jurisdiction to entertain those proceedings and what the legal aid position will be, since that may well help the court in addressing the problems which lie behind the amendment.

In the meantime, however, in the light of the very full response for which I thank the noble and learned Lord the Lord Advocate, I seek leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 10 [Power to take remedial action.]

[Amendment No. 65 not moved.]

Lord Mackay of Drumadoon moved Amendment No. 66:

Page 6, line 11, after ("rights") insert ("and either--
(i) the period within which an appeal may be brought against the relevant judgment has expired, or
(ii) no further appeal lies to a British court from the relevant judgment").

The noble and learned Lord said: This is a comparatively short amendment which seeks to introduce into Clause 10 a requirement that before a Minister of the Crown or Her Majesty in Council could pass to the making of a remedial order following upon a declaration or declarator of incompatibility in terms of Clause 4, the period for appealing against that declarator would require to be expired or no further appeal to a British court from the judgment giving that declarator could exist.

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The purpose of the amendment is relatively simple. It is to restrict the use of remedial orders following upon a declarator or a declaration and prevent it being used if there is any possibility of the judgment of the court being successfully appealed against. In terms of the Bill, as is clear from Clause 4, it will be competent for courts in both England and Scotland, and Wales and Northern Ireland for that matter, to grant declarator which could then be the subject of appeal to the Appellate Committee of your Lordships' House. It takes some weeks, and in many instances some months, for those appeals to be completed. It would be unfortunate in the extreme if, following upon a declaration being granted, a remedial order was then proceeded with if the decision of the High Court in England or the Court of Session in Scotland was to be overturned and the legal justification for proceeding with the declaration evaporated.

I readily accept that, when a declaration is granted, the Government and their legal advisers would no doubt consider the situation most carefully before passing to exercise the powers which are to be found in Clauses 10, 11 and 12 of the Bill. Nevertheless, there is an argument that we should do all that we can to ensure that there is no unnecessary conflict between the courts, on the one hand, and, on the other, the Government. It is against that background that I beg to move.

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