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Lord Mackay of Drumadoon moved Amendment No. 34:

Page 5, line 26, after ("account") insert (", but need not be limited by,").

The noble and learned Lord said: My Lords, this amendment raises an issue in relation to Clause 8(4) of the Bill. It arises out of a matter suggested to me by the Law Society of Scotland. The Society also gave notice of the matter to the Government. The amendment seeks to probe the issue as to whether or not, in exercising the power to award damages under Clause 8(4), a court in the United Kingdom would in any sense be limited to the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention.

Those of us who have from time to time considered and been involved in cases involving the European Court of Human Rights sometimes take the view that, in instances where compensation is awarded, the awards are of a fairly modest nature, and had the applicant been able to prosecute a right in the British courts under the common law for some breach of statute for a similar wrong or injury, the damages that he or she would have received, if successful, would in all probability have been somewhat larger--in some instances significantly larger--than the levels of compensation assessed by the European Court of Human Rights.

I fully accept that the words in subsection (4), "must take into account", could be construed as being such that the courts need not be limited by the principles applied. It is to probe and seek the Government's assurance that no such limitation is intended that I move this amendment. I beg to move.

Lord Lester of Herne Hill: My Lords, if I thought that the Government's intention was that the words, "must take into account", in Clause 8(4) were to be given a different meaning from the words, "must take into account", in Clause 2(1) in relation to the Strasbourg jurisprudence, I would certainly support this amendment. It would be quite wrong to fetter or clog the discretion of the English, Scottish and Northern Ireland courts in deciding upon the appropriate principles for the award of compensation for what is really to be a new form of public law tort; that is to say, a breach by a public authority of a convention right. It would be absurd, if, for example, domestic law concepts such as that of exemplary damages in an appropriate case, which is not a concept that has been developed by the European court, were to be excluded. It would be absurd if our courts were not able, in developing the common law, to stick to our own principles.

On the other hand, I support the way in which the clause as it stands is put. I look forward eagerly to the Minister's explanations. As I understand it, what is envisaged is that guidance should be given as to the case law of the European Court of Human Rights in relation to what is now called Article 41 of the convention, previously Article 50, in giving just satisfaction.

What I like about that case law is that it is fairly mean. In a routine case, the Strasbourg court does not award massive damages. It is quite right that the courts

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should be guided by that mean spirit. This Bill could be destroyed in practice if there were excessive damages awards. Therefore, it seems to me to be well calibrated. The courts "must take into account" that austere case law, but they are not restricted in a gross case where, for example, a person under colour of law deliberately and wickedly tortures somebody or inflicts upon him or her some other barbaric practice in breach of Convention rights and in a context where the Strasbourg court may not even have dealt with such a case. In that case, it is quite right that our courts should be free to use their well-known principles for the award of damages in common law cases. If my understanding is correct, then I should be opposed to this amendment.

Lord Renton: My Lords, it is very important to note in discussing this amendment, and indeed any matter to do with Clause 8, that we are not dealing with any conflict of law between European Convention law and our own substantive law, whether primary or secondary. That matter was dealt with under Clause 4, under the rubric, "Declaration of incompatibility". Here, we are dealing simply with the power of the court to award damages. In that connection we should bear in mind not only the remarks of my noble and learned friend Lord Mackay of Drumadoon, but also the comments of the noble Lord, Lord Lester of Herne Hill, in amplifying the argument.

A factor which neither of them mentioned, although they may have had it in mind, is this. There is such a thing as inflation, or at least changes in the value of money. In awarding damages, our courts would be neglecting their duty if they failed to bear that point in mind when fixing an amount of damages. I therefore see this amendment as doing no harm; indeed, it is essential.

The Lord Chancellor: My Lords, I find this amendment somewhat surprising. In connection with Clause 2, the noble Lord, Lord Kingsland, put down an amendment which stated that in determining a question which has arisen under this Bill, a court,

    "shall be bound by any judgment, decision, declaration or advisory opinion of the European Court of Human Rights."
The words he sought to replace--"must take into account"--were apparently not strong enough for the noble Lord's liking.

But in Clause 8, the wording of subsection (4) is consistent with that used in Clause 2; namely, that in determining whether to award damages, or the amount of an award, a court "must take into account" the principles applied by the European Court of Human Rights in relation to the award of compensation. On this occasion, the noble and learned Lord, Lord Mackay of Drumadoon, would appear to find that phrase too restrictive, and that the courts are to be enjoined not to be limited by the principles of the European Court.

I have no hesitation in advising your Lordships that the similar expressions in two parts of the Bill will bear the same meaning. The intention of Clause 8 is that people should, so far as is possible, receive the same remedies from our domestic courts--albeit with much less delay--as they would receive if the case went to

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Strasbourg. For that to happen, it is necessary that our courts should take into account the principles adopted by the European Court of Human Rights. I see no need for the added gloss that they "need not be limited by" such principles. As I explained when talking to the noble Lord, Lord Kingsland's proposed amendment to Clause 2, the phrase, "take into account", allows the courts to use their discretion where appropriate in applying Strasbourg jurisprudence generally to cases before them. It would be unnecessary and confusing to have a different phrase in Clause 8 from that in Clause 2. It would suggest that the courts were to apply a different test in questions of damages, which is contrary to our intentions. In view of what I have said, I ask the noble and learned Lord to consider withdrawing the amendment.

Lord Mackay of Drumadoon: My Lords, I am grateful to the noble and learned Lord for his explanation. In tabling as in moving my amendment, I was indeed conscious of the terms of Clause 2 and the extensive debate we had about that matter at an earlier stage of the Bill. Nevertheless, it had struck others, as well as myself, that the matter was worth clarifying. The answer given certainly does that.

Quite how that squares with the point made by the noble Lord, Lord Lester, about exemplary damages I am less certain, particularly in view of the absence of such damages within the powers of the Scottish courts. They will be required to apply the provisions of Clause 8(4). So yet again we have an instance of how the Bill, which seeks to bring rights home to the United Kingdom, will end up having different results in different jurisdictions within the United Kingdom. However, I am grateful for the answer I have received and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

7.30 p.m.

Clause 9 [Acts of courts and tribunals]:

The Lord Chancellor moved Amendment No. 35:

Page 5, line 33, leave out from first ("of") to end of line 35 and insert ("a judicial act may be brought only--
(a) by exercising a right of appeal;
(b) on an application (in Scotland a petition) for judicial review; or
(c) in such other forum as may be prescribed by rules.").

The noble and learned Lord said: My Lords, in speaking to government Amendments Nos. 35 and 36, it may be helpful if I also speak to Amendment No. 37 by the noble Lord, Lord Meston.

I am sorry that the noble Lord has been put to the trouble of tabling again on Report the amendment that he moved in Committee. We reached his amendment rather late on the second day of Committee and therefore had less time for discussion than I had hoped.

The noble Lord will now be aware that the Government have themselves tabled an amendment to this clause to provide an enforceable right to compensation for breaches of Article 5 by judicial acts. The noble Lord will see that this is a rather more

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detailed amendment than his own, but I hope that he will accept that it makes the same provision as that which he is concerned to ensure.

May I explain the overall purpose and the detailed provisions of this amendment, because they are of some importance. It has two purposes. The first is to provide an enforceable right to compensation for breaches of Article 5 by judicial acts. The second is to preserve judicial immunity generally for judicial acts undertaken by judges, magistrates, tribunal members and court staff performing judicial functions or acting on behalf of the judge or on the instructions of the judge.

Noble Lords will remember that at Committee stage the noble Lord, Lord Meston, moved an amendment, identical to that which he has now put down on Report, to make explicit provision for the requirement of Article 5(5) that everyone who has been the victim of arrest or detention in contravention of the provisions of Article 5 shall have an enforceable right to compensation.

I indicated at Committee stage that the Government were alive to the need to make appropriate provision for the Article 5(5) requirement and that we were considering how best to give effect to this obligation in relation to judicial acts of courts and tribunals. The effect of Clauses 6, 7 and 8 of the Bill is that there is an enforceable right to compensation in relation to public authorities generally. But special provisions are needed in relation to judicial acts of courts and tribunals.

Where a complaint is made that Article 5 has been breached as a result of a judicial act or omission it will be necessary first to establish whether the judicial act complained of was unlawful, then to rule on whether the aggrieved person is entitled to compensation under Article 5(5) and then to determine the amount of compensation. In determining those questions the court will take into account the Strasbourg jurisprudence on unlawful detention and on the award of damages, as required by Clauses 2 and 8 of the Bill.

Subsections (1) and (2) of the clause require that proceedings under Section 7(1)(a) in respect of a judicial act may be brought in three ways: by exercising a right of appeal; on an application for judicial review (or in Scotland a petition for judicial review) or in such other forum as may be prescribed by rules.

A finding that an inferior court has acted unlawfully will most commonly be reached in England and Wales by way of appeal to the Court of Appeal or the Divisional Court, or by an application by way of judicial review to the High Court. The higher court will then be able to reach a decision of unlawfulness and make an award of damages. Clause 8(2) will enable the courts, which already have power to award damages, to do so in proceedings under this Bill. However, in criminal proceedings in Scotland, if the High Court on appeal finds that some act of an inferior court has contravened the complainant's rights under Article 5(5) it would have no power to award damages. It would therefore be necessary for the amount of damages to be determined by the civil courts. The clause therefore enables proceedings to be brought in such other forum as may be prescribed by rules. The Court of Appeal in England, as a single entity, has the power to award damages.

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Rules will provide as to whether the Criminal or Civil Division should hear compensation claims. Again, Clauses 9(1) and 7(2) provide the necessary powers to make rules.

Subsection (2) underlines that no new right to judicial review is being created. For example, a challenge to a decision of the Crown Court in a matter relating to a trial on indictment will be made on appeal since there cannot be judicial review in respect of trials on indictment.

Subsection (3) has two purposes. It restates the current position under common law and statutory rules that the Crown is not liable 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 proceedings for damages. But it also makes provision that damages may be awarded to compensate a person to the extent required by Article 5(5) of the Convention in respect of a judicial act of a court.

The noble Lord, Lord Meston, has written me a most helpful letter in which he has indicated that he himself had thought of making clear in Clause 9 that existing personal immunity of judges and magistrates was preserved, but he had decided that it was probably unnecessary to do so. It is helpful to know that he had in mind the second purpose of the government amendment--that is, preserving judicial immunity--as well as the first of providing an enforceable right to compensation under Article 5(5).

I believe that now he has seen the draft of the Government's amendment to this clause, he will agree that it is helpful to spell out that judicial immunity is preserved, given the way the clause is now drafted.

Subsection (4) provides that an award of damages permitted by subsection (3) should be made against the Crown rather than against the judge personally. It also ensures that whichever Minister is responsible for the court or tribunal concerned is joined to the proceedings if not already a party. This is similar in effect to the provision of Clause 5 which provides that where a court is considering whether to make a declaration of incompatibility, the Crown is entitled to notice and, on an application to the court, to be joined as the party to the proceedings. In practice, the Lord Chancellor will be the appropriate person in many cases concerning judges and magistrates, in England and Wales. In Scotland, the relevant Minister will usually be the Secretary of State. But there may be cases where the breach of the Article 5 provisions arises from a wholly proper judicial decision required by inconsistent legislation, primary or secondary legislation. In this case it would be helpful for the Minister responsible for the legislation to be joined. "Appropriate person" therefore allows me, or the Secretary of State for Scotland to nominate a person or government department.

The definitions in subsection (6) make it clear that judicial acts include acts undertaken by court officers performing judicial functions or acting on behalf of the judge or on the instructions of the judge.

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At present, this clause refers both to a "judicial act", in subsection (1) and to a "judicial act of a court" in subsection (3). This may give rise to confusion and the Government will therefore be moving a minor amendment at Third Reading to clarify this small point.

I said in Committee that the amendment proposed by the noble Lord, Lord Meston, might be the best way of providing compensation for breaches of Article 5 by judicial acts. I warned the Committee then that the complex and delicate issues of judicial immunity and Crown liability for judicial decisions required consideration before an amendment was made to this clause. The government amendments before the House seek to deal with that situation. They go rather further than the noble Lord's amendment. I hope that he will therefore consider withdrawing his amendment and that the House will agree that the government amendments achieve what is required. I beg to move.

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