Previous Section Back to Table of Contents Lords Hansard Home Page

Lord Lester of Herne Hill: My Lords, I am grateful to everyone who has taken part in this short but important debate. I am grateful to the noble and learned Lord the Lord Chancellor for his reply. I am particularly grateful to the noble and learned Lord, Lord Slynn of Hadley, who at this moment is meant to be at an important public engagement and is staying here purely for the purpose of this debate.

The noble and learned Lord's experience is probably unparalleled because he was Treasury devil--that means that he was the government's chief lawyer--which position he filled with outstanding distinction. He was a distinguished judge and advocate general in the other European Court of Justice. He has had great experience of the Strasbourg case law. He has been and is a most distinguished Law Lord. Therefore, he has within him more practical experience of questions of legal standing and the interests of litigants than anyone else in this House, except those on the Cross-Benches who are serving or retired Law Lords.

The noble and learned Lord the Lord Chancellor has been quite frank and straight with the House, as one would expect. I have too much affection and admiration for him to believe that he is deeply convinced by the argument that he puts forward on behalf of himself and his colleagues. I have heard him when he is passionate and deeply engaged. I listened carefully today. He has not said that there is any abuse of the English test or that there is anything wrong with it. He concedes that it will be narrower to adopt the European victim test than to keep to our own well-tried test. But all he can put forward by way of justification is that third parties will be able to come in with amicus briefs. That is fine, but you still have to find an individual victim before you can be a third-party amicus. He said that he believes that some of the bodies to which I referred will be able to find individual victims. But some will not and it will be very difficult for cases to go forward.

Whatever the outcome may be of seeking the opinion of the House, I am a sufficient optimist and believer in the capacity of reason to persuade, to hope that this matter will be given further thought and will be reacted to with practicality and flexibility. However, I wish to test the opinion of the House.

8.17 p.m.

On Question, Whether the said amendment (No. 13) shall be agreed to?

Their Lordships divided: Contents, 46; Not-Contents, 71.

Division No. 4


Ackner, L.
Addington, L.
Allenby of Megiddo, V.
Anelay of St. Johns, B.
Bridge of Harwich, L.
Burnham, L.
Calverley, L.
Carlisle, E.
Colville of Culross, V.
Dahrendorf, L.
Dholakia, L.
Ezra, L.
Falkland, V.
Goodhart, L.
Hamwee, B.
Harris of Greenwich, L.
Holderness, L.
Holme of Cheltenham, L.
Hooper, B.
Howe, E.
Lester of Herne Hill, L. [Teller.]
Linklater of Butterstone, B.
Lloyd of Berwick, L.
Ludford, B.
Mackay of Drumadoon, L.
McNair, L.
McNally, L.
Meston, L.
Mishcon, L.
Newby, L.
Nicholson of Winterbourne, B.
Ogmore, L.
Redesdale, L. [Teller.]
Renton, L.
Ripon, Bp.
Rochester, L.
Rodgers of Quarry Bank, L.
Russell, E.
Russell-Johnston, L.
Sandberg, L.
Simon of Glaisdale, L.
Slynn of Hadley, L.
Thomas of Walliswood, B.
Thomson of Monifieth, L.
Wigoder, L.
Williams of Crosby, B.


Acton, L.
Archer of Sandwell, L.
Bassam of Brighton, L.
Berkeley, L.
Blackstone, B.
Borrie, L.
Brooke of Alverthorpe, L.
Carter, L. [Teller.]
Chandos, V.
Currie of Marylebone, L.
Davies of Coity, L.
Davies of Oldham, L.
Dean of Thornton-le-Fylde, B.
Desai, L.
Donoughue, L.
Dormand of Easington, L.
Eatwell, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Gallacher, L.
Gilbert, L.
Gordon of Strathblane, L.
Grenfell, L.
Hanworth, V.
Hardie, L.
Haskel, L.
Hayman, B.
Hilton of Eggardon, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L. [Lord Chancellor.]
Janner of Braunstone, L.
Jay of Paddington, B.
Jenkins of Putney, L.
Judd, L.
Kennedy of The Shaws, B.
Levy, L.
McIntosh of Haringey, L.
Mallalieu, B.
Merlyn-Rees, L.
Milner of Leeds, L.
Molloy, L.
Monkswell, L.
Montague of Oxford, L.
Murray of Epping Forest, L.
Nicol, B.
Pitkeathley, B.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prys-Davies, L.
Puttnam, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rea, L.
Rendell of Babergh, B.
Renwick of Clifton, L.
Richard, L. [Lord Privy Seal.]
Rogers of Riverside, L.
Rowallan, L.
Serota, B.
Simon, V.
Stoddart of Swindon, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Turner of Camden, B.
Walker of Doncaster, L.
Wedderburn of Charlton, L.
Whitty, L.
Williams of Mostyn, L.
Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

5 Feb 1998 : Column 812

8.26 p.m.

[Amendment No. 14 not moved.]

Baroness Young moved Amendment No. 15:

Page 4, line 38, at end insert--
("(7A) Nothing in this Act shall be used to compel any minister, official or other person acting on behalf of a Christian or other principal religious tradition represented in Great Britain to

5 Feb 1998 : Column 813

administer a marriage contrary to his religious doctrines or convictions.
(7B) In relation to--
(a) a church school;
(b) a school or college with a religious foundation or trust deed or, as the case may be, memorandum or articles of association,
nothing in this Act shall be used to affect its ability to select for the position of headteacher, deputy headteacher or other senior post people whose beliefs and manner of life are appropriate to the basic ethos of the school and to dispense with the services of a person in the position of headteacher, deputy headteacher or other senior post whose beliefs and manner of life are not appropriate to the basic ethos of the school.
(7C) In relation to a charity which has as one of its aims the advancement of religion, nothing in this Act shall be used to affect its ability to select for the position of chief executive, deputy chief executive or other senior post people whose beliefs and manner of life are appropriate to the basic ethos of the charity and to dispense with the services of a person in the position of chief executive, deputy chief executive or other senior post whose beliefs and manner of life are not appropriate to the basic ethos of the charity.").

On Question, amendment agreed to.

Lord Mackay of Drumadoon moved Amendment No. 16

Page 5, line 6, at end insert--
("( ) The provisions of this Act do not affect any rule of law which prevents the High Court of Justiciary, the Court of Session and the Sheriff Court from reviewing any decision of the Lord Advocate as to whether or not to prosecute a particular individual.").

The noble and learned Lord said: My Lords, the amendment deals with a matter which I have raised previously. For that reason, I hope that I can take it briefly. The protracted proceedings have not only disrupted the birthday celebrations of my wife, but I understand that they are also interfering most seriously with the birthday celebrations of the noble Lord, Lord Williams of Mostyn. I hope that I speak for the whole House when I wish him, for what remains of the day, a very happy event.

When the matter was last before the House I expressed my concern that the Bill would, inadvertently perhaps, interfere with and disturb the relationship between the Lord Advocate on the one hand and the courts in Scotland on the other hand, as regards decisions as to whether or not to prosecute particular individuals. At that time I expressed some concern that the Government had not sought and brought before your Lordships the views of those who participate in the criminal justice system in Scotland on such an important issue.

Since then, and as I promised, I have discussed the matter with various parties. The position of the Faculty of Advocates remains the same as I previously explained; namely, that it believes there to be strong policy grounds for excluding the Lord Advocate's decisions from review. It certainly doubts whether the Court of Session is the forum in which to do so. Members of the Law Society apparently have differing views on the issue--some agree with me, while others take the view that all decisions of the Lord Advocate should be reviewable not only on convention right

5 Feb 1998 : Column 814

grounds but also on the broader grounds appropriate in judicial review proceedings. However, I doubt whether many Lord Advocates would agree with that.

The position of the Court of Session is of some interest. I wrote to the Lord President, the noble and learned Lord, Lord Rodger of Earlsferry, to ascertain whether or not he was prepared to write to me in terms which would enable me to explain to the House the view of the court. The noble and learned Lord discussed the matter with a number of the judges at one of their regular meetings. The view that he reports to me in a letter, which I know has been copied to the noble and learned Lord the Lord Chancellor and the noble and learned Lord the Lord Advocate, is that the court considers it "inevitable" that the decisions of the Lord Advocate should be reviewed. That seems necessarily to involve an application to the courts, following the decision which the Government have taken vis-a-vis the convention.

However, in his letter, the noble and learned Lord also says:

    "The idea of a court ... reviewing the Lord Advocate's exercise of his powers represents a major change in the relationship between the courts and the Lord Advocate".
Indeed, in that letter, the Lord President describes the change as "startling". Therefore, it is right that your Lordships should know that there is a measure of surprise that this change is taking place without, as I understand it, any detailed discussion until I raised the matter with those involved.

In speaking to this matter previously, I have expressed concern that, if decisions are reviewable against convention rights, that might open up review on other grounds. That, too, is a view which the Lord President shares. He states in his letter,

    "It also seems to me likely that, once the Lord Advocate's decisions are seen to be reviewable on one ground, it will be hard to resist the view that they should be reviewable on other grounds also".
Linked to that, of course, is the question of whether the noble and learned Lord the Lord Advocate will now require to provide reasons for his decisions when those are brought before the court for review.

I do not know whether the noble and learned Lord the Lord Chancellor or the noble and learned Lord the Lord Advocate will respond to this amendment, but whichever it is I shall be interested to learn what the proposals are, and whether the noble and learned Lord the Lord Advocate intends to adhere to the existing convention of not giving reasons for such decisions, or whether he intends to depart from it at least in some cases to enable the courts to adjudicate on the merits or otherwise of any application brought against him.

I return to an important question which I submit is of great practical concern; namely, the question of which court should entertain such applications when remedies are sought either by accused persons or by victims. First, I wish to consider the position under Clause 7 of this Bill. This House still awaits from the Government any indication of how the Secretary of State for Scotland intends to exercise his rule-making power under the Bill to designate which courts are appropriate for particular

5 Feb 1998 : Column 815

kinds of actions. Here again your Lordships may feel the views of the Lord President are of interest. On a previous occasion the noble and learned Lord the Lord Chancellor suggested that the natural court with which to place such a jurisdiction would be the Court of Session. On the other hand the Lord President expresses the view that it might be appropriate for both courts to have a jurisdiction, with the one court having jurisdiction in certain cases and the other in others. Understandably he declines to express too firm a view on the issue, unless it comes before him for decision in a particular case. Therefore we have a situation that the same issue as to whether a particular convention right had been breached might arise on the one hand in the Court of Session, where there is an appeal to the Appellate Committee of your Lordships' House, or on the other hand in a High Court of Justiciary case, where no such right of appeal exists. The court in which the issue arose would be a matter of complete chance. That would presumably be determined according to whether the proceedings were raised by an accused person on the one hand, or one of his alleged victims on the other.

However, there is a further twist to the problem of which court should have jurisdiction. The Scotland Bill proposes that the post of Lord Advocate will be devolved. It is intended that he should become a member of the Scottish Executive. As such his actings and failures to act will be reviewable against convention rights, as a devolution issue, as defined in Schedule 6 to the Scotland Bill. Such devolution issues can--as I read Schedule 6 to the Bill--be raised in any court in Scotland, not only in the Court of Session and the High Court of Justiciary but also in a Sheriff Court. When they are, the ultimate appeal court against the determination of a devolution issue will not be the Appellate Committee of your Lordships' House but the Judicial Committee of the Privy Council. It seems to me, with respect, therefore that there is a serious incompatibility between the different routes that are available for judicial proceedings under this Bill and those set out in Schedule 6 to the Scotland Bill.

I am aware from previous discussion on this Bill that the noble and learned Lord the Lord Chancellor has kindly agreed to consider such issues involving potential conflict between the two Bills in the fullness of time. As regards fairly minor and technical matters, I am more than content with such an assurance. But I believe that this is a matter of fairly fundamental importance. For that reason, I very much hope that I shall receive some commitment from the Government to bring forward a government amendment to deal at least with the issue of which court should entertain applications for those who claim to be victims, because I harbour no hope that they will favour or accept my fundamental objection to the implications for the relationship between the noble and learned Lord the Lord Advocate and the court. I beg to move.

8.30 p.m.

Next Section Back to Table of Contents Lords Hansard Home Page