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Lord Meston: My Lords, I am grateful to the noble and learned Lord for swiftly and fully meeting the point raised in the amendment moved at Committee stage. I shall not move Amendment No. 37. I am also grateful to the noble and learned Lord for explaining, in answer to the only question that I would have asked on Amendment No. 35, what is meant by the phrase.

"such other forum as may be prescribed by rules".

The amendments are most welcome.

Lord Mackay of Drumadoon: My Lords, from these Benches I offer no objection to Amendments Nos. 35 and 36, which address fully the point raised previously by the noble Lord, Lord Meston. With an element of diffidence perhaps I can ask one question. Is it proposed that these amendments will apply to the courts of the Church, about which we have had certain discussions during the passage of the Bill? If so, looking at the terms of subsection (5), set out in Amendment No. 36, I doubt that one could say,

"the Minister responsible for the court concerned".

Lord Lester of Herne Hill: My Lords, first, I congratulate my noble friend Lord Meston on introducing this matter at Committee stage and the noble and learned Lord the Lord Chancellor and his colleagues on what I regard as an appropriate and necessary amendment.

The amendments represent a significant change in existing law. As I understand it, until the Courts and Legal Services Act 1990 came into force it was possible for someone who had been unlawfully detained by order of a magistrates' court to take civil proceedings against the relevant Bench of magistrates. In cases in which imprisonment was unlawful, compensation could be paid.

Sections 44 and 45 of the 1990 Act introduced a requirement for the plaintiff to allege and prove malice before compensation could be ordered. That in effect rendered such litigation impossible and ended the right to compensation for unlawful detention by a magistrates' court. The Strasbourg case law is that

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a requirement to prove malice as a precondition to compensation does not conform to Article 5(5) of the Convention. The amendment deals with that problem extremely well. It extends to a judicial act of a court done in good faith so that damages can be awarded to compensate a person to the extent required by Article 5(5). It impliedly repeals Sections 44 and 45 of the Courts and Legal Services Act. Perhaps the noble and learned Lord could think a little further about whether one needs to have something dealing expressly with that. It deals skilfully with the problems of judicial immunity and Crown liability, as the Lord Chancellor indicated.

Lord Simon of Glaisdale: My Lords, perhaps I can raise a small drafting point on subsection (4) of the amendment. It says,

"An award of damages permitted by subsection (3) is to be made against the Crown",

and so forth. Does not that mean "may" be made against the Crown? Is not that the normal manner of drafting? Matters of drafting are not positively debated across the Floor of your Lordships' Chamber, but perhaps my noble and learned friend will consider that point with the draftsmen, if he thinks it worth considering.

Viscount Colville of Culross: My Lords, I am relieved to have it put clearly in the Bill that the judiciary is immune. In relation to what the noble Lord, Lord Lester, said, one can make a mistake in the Crown Court as well as in the magistrates' court and this is an admirable arrangement for some of us.

The only question I would ask the noble and learned Lord is this. Now that the explanatory memorandum has disappeared, I cannot check whether there is to be a financial provision introduced by another place in order to pay for all this. It will come out of the public pocket, out of the Treasury, and I imagine that it will be necessary to bring forward an amendment which we cannot introduce in this House, but which may be introduced in another place.

7.45 p.m.

The Lord Chancellor: My Lords, I am disinclined to be drawn into argument about the Church courts. The short answer is that if the noble and learned Lord, Lord Mackay of Drumadoon, had in mind the Church of Scotland or indeed the Church of England, I am not aware that they make any decisions that could breach Article 5. I have difficulty therefore in understanding how the question of compensation in relation to Article 5(5) could arise.

I note what was said by the noble Lord, Lord Lester, in relation to the interaction of these provisions by way of an amendment with pre-existing civil and statute law. However, having regard to the position of the hands of the clock, it would not be wise for me to embark extempore upon that. However, I undertake to write to the noble Lord.

The noble and learned Lord, Lord Simon of Glaisdale, invites us to consider subsection (4) from a specific standpoint. I am happy to do so. I understand the

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significance of the provision to be no more than to emphasise that the liability is in the Crown and not the judge as an individual. I shall look at that. I do not believe that any specific financial provision needs to be made for liabilities that may arise at law against government departments.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 36:

Page 5, line 38, leave out subsections (3) to (5) and insert--
("(3) In proceedings under this Act in respect of a judicial act of a court done in good faith, damages may not be awarded otherwise than to compensate a person to the extent required by Article 5(5) of the Convention.
(4) An award of damages permitted by subsection (3) is to be made against the Crown; but no award may be made unless the appropriate person, if not a party to the proceedings, is joined.
(5) In this section--
"appropriate person" means the Minister responsible for the court concerned, or a person or government department nominated by him;
"court" includes a tribunal;
"judge" includes a member of a tribunal, a justice of the peace and a clerk or other officer entitled to exercise the jurisdiction of a court;
"judicial act" includes an act done on the instructions, or on behalf, of a judge;
"rules" has the same meaning as in section 7(8).").

On Question, amendment agreed to.

[Amendments Nos. 37 and 38 not moved.]

Clause 10 [Power to take remedial action]:

Lord Williams of Mostyn moved Amendment No. 39:

Page 6, line 8, leave out ("one or more of the Convention rights") and insert ("a Convention right").

The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendment No. 40:

Page 6, line 8, after ("rights") insert ("and, if an appeal lies--
(i) all persons who may appeal have stated that they do not intend to do so;
(ii) the time for bringing an appeal has expired and no appeal has been brought within that time; or
(iii) an appeal brought within that time has been determined or abandoned").

The noble Lord said: My Lords, in moving Amendment No. 40, it may be convenient for me to speak also to Amendments Nos. 41 to 43. Amendments Nos. 40 and 42 place limits on the power of a Minister to make a remedial order under Clause 10 following a declaration of Convention incompatibility by a court. Both are specific responses to concerns expressed by your Lordships in Committee.

Amendment No. 40 prevents a remedial order being made following a declaration of incompatibility if there is any prospect of an appeal against the relevant court decision. That is a specific and I hope helpful response to the question raised by the noble Lord, Lord Kingsland. I summarised it shortly, but I believe rightly. The noble

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Lord asked what would happen if the remedial order procedure were initiated before all avenues of appeal had been exhausted. We believe, as we believed then, that that situation would be unlikely to arise in practice. Having said that, we see no harm in making the position clear on the face of the Bill. That is the purpose of Amendment No. 40.

The noble Lord, Lord Coleraine, helpfully raised the question in Committee as to whether or not the power conferred by Clause 10 may be used retrospectively in respect of findings in proceedings against other states or parties to the Convention. Again, we believe those outcomes to be unlikely but, having reflected on the helpful comments made by the noble Lord, Lord Coleraine, we are content to make the position clear on the face of the Bill.

Both noble Lords have re-tabled their amendments. I can assure them that the government amendments achieve what their amendments tried to do. The drafting is slightly different. But we believe, modestly, that perhaps the parliamentary draftsman has done a good job here as regards Amendments Nos. 40 and 42. In the light of my brief explanation, I hope that both noble Lords will seek leave to withdraw their amendments. I beg to move.

Lord Kingsland: My Lords, as the noble Lord, Lord Williams of Mostyn said, in effect, the terms of Amendment No. 40 match the terms of my own Amendment No. 41. I am grateful that the Government have taken this step. I have a certain attachment to my own wording, but I accept that he has covered the point. In those circumstances I shall not move Amendment No. 41.

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