| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
11
Clause 5, Page 3, line 37, leave out ("An application") and insert ("Notice").
Page 3, line 37, leave out ("made") and insert ("given").
Page 3, line 40, leave out ("an application under this section") and insert ("a notice under subsection (2)").
Clause 6, page 4, leave out lines 24 to 30.
Lord Williams of Mostyn: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 11 to 14.
Moved, That the House do agree with the Commons in their Amendments Nos. 11 to 14.--(Lord Williams of Mostyn.)
On Question, Motion agreed to.
12
13
14
4.15 p.m.
15
Clause 7, page 5, line 9, at end insert--
Lord Williams of Mostyn: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 15.
At present, the Bill makes no provision regarding the period in which proceedings can be brought under Clause 7(1)(a); that is, on convention grounds alone as distinct from any pre-existing course of action. We believe that it is desirable to set a limitation period and that is the purpose of this amendment. It will provide that proceedings must be brought within one year beginning with the date upon which the act complained of took place or within such longer period as the court or tribunal considers equitable having regard to all the circumstances. The time limit is subject to any stricter time limit in relation to the procedure in question; for example, the most obvious case being judicial review.
There is a balance between, on the one hand, the interests of the individual bringing the case and, on the other, those of the public authority alleged to have acted unlawfully. We think it is right that those who believe a public authority has acted unlawfully under the Human Rights Act and are bringing proceedings on that ground alone should do so within a reasonably short time. To allow for a longer period--for example, six years, which is the standard period in tort--would cause uncertainty for such authorities and make effective administration very difficult, if not virtually impossible.
We do look to flexibility. There may be occasions when there is a good reason for delay. Therefore, to cater for those circumstances the amendment gives the court a discretion to extend the one-year period. We know at present that the period for applications on judicial review is three months. It is true that it is notionally flexible, but I believe that it is rare for the three-month period to be extended. I think that I have given a fair summary of the balance that we have sought to achieve. I know that the noble Lord, Lord Lester, has tabled an amendment to this Commons amendment. Therefore, it will probably be more convenient if I defer my remarks in that respect until he has developed his theme.
Moved, That the House do agree with the Commons in their Amendment No. 15.--(Lord Williams of Mostyn.)
("( ) Proceedings under subsection (1)(a) must be brought before the end of--
(a) the period of one year beginning with the date on which the act complained of took place; or
(b) such longer period as the court or tribunal considers equitable having regard to all the circumstances,
but that is subject to any rule imposing a stricter time limit in relation to the procedure in question.").
Line 3, at end insert--
("( ) the period of two years beginning with the date upon which this Act receives Royal Assent; and thereafter").
Lord Lester of Herne Hill: My Lords, I beg to move the amendment standing in my name, which is an amendment to Commons Amendment No. 15. I should like also to speak to other amendments in this group. As the Minister explained, the Government take the view that a one-year basic limitation period for bringing proceedings under Clause 7 of the Bill strikes the right balance. They have essentially--and quite understandably and rightly--put their trust in the courts to do mercy and to extend the time limit when it is fair to do so.
Perhaps I may begin by saying that there was absolutely no indication that there would be any such time limit in the White Paper or in any other document which preceded the introduction of the Bill; nor is there any time limit of this kind in any of the other constitutional Bills of Rights anywhere else in the Commonwealth of which I am aware. Indeed, there is none in the New Zealand Bill of Rights and none in the Canadian Charter of Rights. However, this has been put in and it seems to me that Her Majesty's Treasury is probably concerned to seek to limit liability by public authorities for what will be a new constitutional tort under Clauses 6 and 7 of the Bill.
What troubles me, first, about the time limit of one year is that it will cause confusion and uncertainty because the scheme of the Act will be to bind convention rights into the fabric of the common law. Therefore, there will be a whole variety of claims, some of which have time limits appropriate to an ordinary tort action but some of which will have time limits appropriate to this one-year constitutional tort action. Perhaps I may give your Lordships an example. Let us suppose that there is the tort of misfeasance in public office, which might have a convention element added to it. That would be subject to a longer time limit. Alternatively, there could be an Entick v. Carrington claim based upon common law notions of personal privacy which would be subject to a different time limit.
Somehow the unfortunate litigant will have to sort out what the true position will be about time limits. Therefore, I am troubled that it may cause confusion and uncertainty to introduce this unique one-year limit. I say "unique" in the sense that I know of nothing like it in any constitutional Bill of Rights. The Minister referred to the three-month time limit in judicial review, but that does not deal with a claim of right--a tort claim--indeed, it is dealing with a separate issue about judicial review.
That is my first major concern. My second concern is that the reasonableness of a one-year period is also undermined by the narrow victim test that has been adopted on standing and by the absence of any assistance for complainants, about which I have already spoken and upon which we await future government announcements.
It is easy to imagine a situation where someone with a potentially meritorious claim is unaware for a year that his or her rights have been infringed, especially if the person has had no effective access to legal services and little knowledge about the impact of the new legislation. In such a situation, the Minister will no doubt say that we can trust the judges to extend the time limit. I agree that that seems to be probable. However, I am still concerned that this new one-year time limit will have a chilling effect upon the vulnerable and underprivileged in deciding whether to invoke the Act.
The reason why I tabled my amendment to extend the one-year period to an initial two-years relates to another problem which, if anything, is more serious as far as concerns ordinary members of the public. When we read Bringing Rights Home we thought--at least I did, and I believe most other people did--that it meant that rights would be brought home within a reasonable period of time. I certainly thought they would be brought home some time within a year of Royal Assent.
My understanding is that at present the Government are not thinking of bringing rights home next year--in terms of any claims of right--and not until some unspecified time in the year 2000. I believe that the reason put forward is judicial training. I am much in favour of any form of training for anyone, including the legal profession and judges. However, I am concerned that the public administration will immunise itself from claims involving alleged breaches of convention rights throughout that long hiatus with no prospect of an individual being able to seek and obtain an effective domestic remedy throughout a period of perhaps two years from now while breaches of convention rights may occur.
That will result in a number of factors which concern me greatly. First, it will frustrate the central objective of the legislation, which is to bring rights home and create speedy and effective domestic remedies without the need to go to Strasbourg, except in the last recourse. The longer the hiatus, the longer the period in which there will be no effective domestic remedies. That will be a great misfortune. In my view as time goes by and we see rights not being effectively brought home, many of us who strongly support the Government and strongly support the objectives of this legislation will become discontented. Instead of being friends and allies of the Bill--as we are--we shall become discontented. That would be a great pity because in a measure of this kind I believe that we should seek the widest consensus of support. Therefore the longer the hiatus--if I may say so, this may be the result of the Treasury seeking to minimise liability as much as anything else--the greater the discontent.
My concern was aggravated by the comments of the Home Secretary in another place when he explained to one of the Members of his party why Article 13 of the convention had not been incorporated into our domestic law. I should be grateful if the Minister could reassure me on this matter. During the Third Reading debate on 21st October the Home Secretary said,
"Although Article 13 mentions a national authority, the truth is that it is there to provide a remedy for the international Court at Strasbourg. For that reason, the Government thought that it would
29 Oct 1998 : Column 2098
- be inappropriate to include Article 13 in the Bill to incorporate the principal operational parts of the convention that provide substantive rights".--[Official Report, Commons, 21/10/98; col. 1367.]
I have proposed a two year initial period so that no one will be prejudiced, in terms of their claims against a public authority, by the one year limitation period if the Government take two full years to bring the substantive provisions into force. It will mean that time will stand still as regards the one year limitation period. If people are the victims of breaches of convention rights by public authorities during that period after Royal Assent, once the Bill comes into force they will be able to seek and obtain a domestic remedy. If that does not happen, it will simply mean that we shall have to continue to have recourse on the international plain.
I am not suggesting that the Government should bring the Act into force on Royal Assent. That would be absurd. Nor am I suggesting that they should do so within a matter of weeks. However, I hope that we may be given some reassurance that the Government will look sympathetically at this matter and bring it into force in the course of 1999 before the millennium. I hope that the one year limitation period will not be an engine of injustice. I am sure the courts will do their best to secure that it is not.
Moved, That Amendment No. 15A, as an amendment to Commons Amendment No. 15, be agreed to.--(Lord Lester of Herne Hill.)
Next Section
Back to Table of Contents
Lords Hansard Home Page