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Earl Russell: My Lords, the noble and learned Lord the Lord Chancellor wishes it to be known that he is not responsible for describing the Bill as a jewel. As the author, I must modestly take responsibility for that description. It is an accurate description. But I agree with my noble friend that the amendment would put right one blemish in it. It is of great practical effect. It deals with the increasing tendency of cases to be brought by organisations representing people of whom the applicant is one.
That has been the position in a great many of the most important cases that we have had recently. I think, for example, of the case of Bates from the Social Security Act 1990, upon which I have regaled your Lordships many times, and will not do so again. That was brought by the Child Poverty Action Group on behalf of an applicant who suffered from learning disability and might have had great difficultly in bringing the case herself.
I think of the case Ex parte B, on asylum seekers' right to benefit, which detained this House for much of the summer of 1996. That woman was destitute, in a strange country and totally ignorant of the system. Without that, she would have been unable to bring the case. I think of a case in the Appellate Committee of your Lordships' House on the employment rights of part-time workers in which my noble friend Lord Lester of Herne Hill, who has been too modest to mention it, was the successful applicant. I believe that that case has done more to advance the standing of women than any other event in Parliament, in its judicial or legislative capacity, in the past five years. All those matters are in the interests of potential litigants.
When we start talking about human rights we are tempted to confine ourselves to human rights, but there is a case to be considered for the convenience of the Government. I wish to consider that case in supporting the amendment. In some quarters, fears have been expressed about a flood of appeals. I believe that those fears may be exaggerated. However, there is no doubt that when such cases are heard in British courts it will take a few years for things to shake down and for people to learn the types of cases which are practical.
In the Social Security Bill, which is before the House at present, there is a good deal about what is referred to as the sifting of appeals. The question, "Who does that?", is always difficult. However, it occurs to me that one of the real advantages of having organisations involved in the bringing of cases is that they will carry out a preliminary sift. They will tell people, "No, this case does not come
within the terms of the European Convention." They will tell other people, "Your case might come under the terms of the European Convention, but the chances of success are very slender." Therefore, when a case is brought to court it will have been exhaustively tested and examined and will be considered to have a reasonable chance of success. That may materially save the time of the court.I recall Lord Taylor of Gosforth, one of the ablest people it has been my privilege to listen to in this House, speaking in a debate on legal aid. He explained with that simple clarity of which he was such a master how much the time of the court is taken up in having to deal with uninformed litigants in person. It is with that speech in mind that I ask whether this amendment is for the convenience of the Government.
8 p.m.
Lord Slynn of Hadley: My Lords, for a number of years, I appeared as counsel before both the commission and the court of human rights on behalf of the United Kingdom. I was convinced then, and I have remained convinced, that it was of the greatest importance that the convention, with amendments, should become part of domestic law. If we are not to adopt too restrictive an approach to those who may approach the courts for the protection of human rights we should give effect to this amendment.
During the years, we have seen the development of judicial review because of the degree of flexibility which the courts enjoyed. It is essential that judges at all levels should have the freedom to allow to approach the court those who can show a sufficient interest. If they do not do so, I see a grave risk of the word "victim" being tortured into an artificial meaning in order to protect the rights of those who ought to be able to bring matters of great importance before the courts.
For the reasons given by the noble Lord, Lord Lester, I firmly, if briefly--I do not wish to repeat what he said--support the amendment. I do so not only as a result of our experience in the British courts with judicial review, and not only as a result of what I saw in the Strasbourg court, but also because I believe that we should learn from the experience of what we have seen in the European Court itself. Those who may approach the European Court to challenge decisions of the Commission and the Council are strictly limited. The treaty speaks of those who have a direct and individual concern. In my view, the court at an early stage interpreted that in a very narrow way. Most of us outside the court, and some of us on the court, believed that that had been interpreted too narrowly and had prevented sufficiently interested groups of individuals challenging what the Commission and the Council had done as being unlawful.
I do not believe that we should follow that path in regard to the protection of human rights. I welcome as warmly as any of your Lordships the fact that the Government have brought the measure forward and done so early and vigorously. However, I believe that if the word "victim" remains in the Bill and the amendment is
rejected there is a serious risk that human rights will not be protected as they should be protected in the future. I support the amendment.
Lord Ackner: My Lords, I, too, support the amendment. I regret that the matter has come on so late and that a number of speakers to whom reference has been made have been unable to wait. Among those is the noble Lord, Lord Alexander, to whom I spoke briefly about the matter over tea.
It must be emphasised at the outset that there is no question that, if the amendment is accepted, the litigation which results will in any way be increased or be academic. Sufficient standing will enable the applicant to appear only if he shows that he has a sufficient real interest and, in addition, the discretion of the judge listening to the application is used in his favour.
I would have submitted to your Lordships that there could be practical disadvantages in having different tests for standing in judicial review cases which involve human rights points under the Act and those which do not. As has been said, it will result in a tortured meaning ultimately being given to the word "victim" to ensure that those who have real merits are not excluded. I adopt the observation of the noble Earl, Lord Russell, that benefits will be gained by allowing public interest groups in appropriate cases to make the application. Quite apart from the fact that it will ensure that the factual picture and the legal issues are put clearly before the court, it will also save what is dear to the Government's heart--the cost of legal aid--because those groups bear their own costs. I would have thought that this is an eminently sensible amendment to make. Unless one is wholly technical in one's approach to the legislation, there is no reason for resisting it.
Lord Renton: My Lords, I, too, support the amendment. I believe that Clause 7(4) is too narrow and has the defect referred to by the noble and learned Lord, Lord Slynn, in relation to the word "victim". However, judicial review now plays an important part in the evolution of the law in our courts. The amendment would be even more acceptable if, to the words "a sufficient interest in the matter", were added the words "or if there is a sufficient public interest". That would broaden the measure still further and make it more relevant to the present practice with regard to judicial review. However, even with the amendment's present limitations, it is worthy of support.
Lord Simon of Glaisdale: My Lords, I, too, support the amendment for the reasons that have been given and for the reasons I gave at an earlier stage of the Bill.
Lord Mishcon: My Lords, I intervene briefly in case--I hope that I do not speak too pompously--lay Members of your Lordships' House believe that litigation would be increased by the acceptance of the amendment. It may be thought that one must go before the court on a judicial review before any decision can be made as to whether there is a sufficient interest. If I may respectfully say so, that would not be the case because there must be an application for leave to bring the judicial review proceedings, usually looked at by a judge and sometimes
by two judges, I understand. That will be the case if this amendment is accepted. The judge or the judges on the application to bring the proceedings will consider whether there is a sufficient interest, and if there is not leave will not be given.
The Lord Chancellor: My Lords, I shall try, in replying to those who have spoken in the debate, to match their brevity. This is a narrow point but I agree that it is of some importance. I well understand the reasons why noble Lords champion the sufficient interest test which applies in judicial review applications. But of course the provision in this Bill in no way affects that test of standing for judicial review which has been developed by the courts and not created by statute.
As regards the proposed statutory test, I believe that the concerns expressed about applying the victim test are misplaced. I say immediately to the noble Earl, Lord Russell, that there is nothing in our Bill which would prevent pressure groups--interest groups--from assisting and providing representations for victims who wish to bring cases forward.
There is a flexible Strasbourg jurisprudence on the victim test which I suggest the English courts would have no difficulty applying. Although I hesitate to take up time, and indeed abstain from doing so, I could cite example after example of an expansive approach by the Strasbourg court to the victim test.
As we have said a number of times, the purpose of the Bill is to give further effect in our domestic law to our convention rights, and it is in keeping with that approach that a person should be able to rely on those rights before our courts in the same circumstances that they can rely upon them before the Strasbourg institutions, and not in different circumstances. Bringing rights home means exactly what it says--to mirror the approach taken by the Strasbourg court in interpreting convention rights.
I acknowledge that as a consequence, and despite the flexibility of the Strasbourg test, a narrower test will apply for bringing applications on convention grounds than in applications for judicial review on other grounds. But I venture to think that interest groups will plainly be able to provide assistance to victims who bring cases under the Bill, including, as I mentioned in Committee, the filing of amicus briefs. Interest groups themselves will be able to bring cases directly where they are victims of an unlawful act. I do not believe that different tests for convention and non-convention cases will cause any difficulties for the courts or prevent interest groups providing assistance to victims of unlawful acts.
As to the questions raised about giving access to the courts, I mentioned in Committee that I am giving serious consideration to Sir Peter Middleton's proposal that there should be a separate fund for public interest cases, including those involving rights under this Bill. Informed consultation with various interest groups on that matter is already well under way and I hope to publish a consultation document by the end of February.
Therefore, we consider that the wording of Clause 7 is wholly consistent with the proposition that rights should be brought home to this country from Strasbourg on the
same terms as they may be enjoyed there. Therefore, I hope that the noble Lord will give thought to withdrawing the amendment.
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