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Lord Williams of Mostyn: My Lords, the discretion is given to the courts to be exercised judicially on an equitable basis. It is not right for any government Minister, not even a Home Office Minister, to give indications to the courts as to how they exercise their discretion. That would be improper.
Article 13 states that everyone whose convention rights are breached has a right to an effective remedy before a national authority. I do not believe that on any occasion the Home Secretary has said anything implying a contrary proposition.
Lord Lester of Herne Hill: My Lords, I am grateful to everyone who has taken part in the debate, even to
the noble Lord, Lord Campbell of Alloway, who thought it somehow improper to raise the subject at all since he thought it to be unimportant. It is important that, if we bring rights home, we do so speedily and in a way that can be enjoyed in practice by ordinary men and women of limited means, by the vulnerable and by those who do not understand their rights well.I am reassured by the Minister's remarks about the width of the judicial discretion. I very much hope that the Government will make sure that there is no unnecessarily long hiatus. On the basis that it is common ground that Article 13 guarantees the right to an effective remedy in this country, not merely a right to an international remedy, I beg leave to withdraw my amendment.
Amendment No. 15A, as an amendment to Commons Amendment No. 15, by leave, withdrawn.
On Question, Motion agreed to.
16
Clause 7, Page 5, leave out lines 19 to 39.
Page 5, line 40, at end insert--
Page 5, line 41, after ("court") insert ("or tribunal").
Page 5, line 42, leave out ("the purposes of this section") and insert ("those purposes").
Page 5, leave out lines 43 and 44.
Page 5, line 45, leave out from ("before") to end of line 47 and insert ("a tribunal in Northern Ireland--
Lord Williams of Mostyn: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 16 to 21 en bloc.
Moved, that the House do agree with the Commons in their Amendments Nos. 16 to 21 en bloc.--(Lord Williams of Mostyn.)
On Question, Motion agreed to.
17
("(aa) in relation to proceedings before a court or tribunal outside Scotland, rules made by the Lord Chancellor or the Secretary of State for the purposes of this section or rules of court,").
18
19
20
21
(i) which deals with transferred matters; and
(ii) for which no rules made under paragraph (aa) are in force,
rules made by a Northern Ireland department for those purposes,").
22
Clause 7, Page 6, line 3, leave out from ("may") to end of line 9 and insert (", to the extent he considers it necessary to ensure that the tribunal can provide an appropriate remedy in relation to an act (or proposed act) of a public authority which is (or would be) unlawful as a result of section 6(1), by order add to--
Lord Williams of Mostyn: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 22. I shall speak also to Amendment No. 24.
The noble Earl, Lord Russell, is just departing but he ought not to, because I deal with a question that he raised on an earlier occasion. I caught him just in time.
Therefore, we have introduced these amendments in order to bring about the consequence which the noble Earl wanted, namely, to make it quite plain that the gap he feared is not to exist. I beg to move.
Moved, That the House do agree with the Commons in their Amendment No. 22.--(Lord Williams of Mostyn.)
Earl Russell: My Lords, I thank the Minister warmly and apologise for my mistaken intended departure.
Lord Lester of Herne Hill: My Lords, these amendments are most welcome. I believe that the gap was exposed first, not only by my noble friend Lord Russell but also by two prominent members of the Bar, Murray Hunt and Rubindar Singh. I too was involved in it at one stage. It is obviously right to make quite clear that the tribunals will give full effect to the convention rights, as these amendments do.
Lord Williams of Mostyn: My Lords, I commend the amendment to the House.
On Question, Motion agreed to.
(a) the relief or remedies which the tribunal may grant; or
(b) the grounds on which it may grant any of them.").
4.45 p.m.
23
Clause 7, page 6, line 12, at end insert--
Clause 8, page 6, line 15, leave out ("jurisdiction") and insert ("powers").
Lord Williams of Mostyn: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 23 and 24.
Moved, That the House do agree with the Commons in their Amendments Nos. 23 and 24.--(Lord Williams of Mostyn.)
On Question, Motion agreed to.
("( ) "The Minister" includes the Northern Ireland department concerned.").
24
25
Page 6, line 32, 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. 25.
The Civil Liability (Contribution) Act 1978 provides a right to contribution where more than one person is liable in respect of the same damage. We believe that this should apply where damages are awarded against a public authority under Clause 8. Therefore, the effect of the amendment is that the terms of the 1978 Act and the relevant related provisions in Scotland apply. I beg to move.
Moved, That the House do agree with the Commons in their Amendment No. 25.--(Lord Williams of Mostyn.)
On Question, Motion agreed to.
("( ) A public authority against which damages are awarded is to be treated--
(a) in Scotland, for the purposes of section 3 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 as if the award were made in an action of damages in which the authority has been found liable in respect of loss or damage to the person to whom the award is made;
(b) for the purposes of the Civil Liability (Contribution) Act 1978 as liable in respect of damage suffered by the person to whom the award is made.").
26
Clause 10, page 7, line 21, after ("stated") insert ("in writing").
Lord Williams of Mostyn: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 26. I wish to speak also to Amendments Nos. 27 to 31, 33 to 35 and 60.
These are technical amendments concerned with the remedial order provisions of the Bill. In earlier discussions a number of your Lordships indicated that in their view the power to make remedial orders was too wideranging. There was not sufficient opportunity for scrutiny by Parliament. We promised to think about the matter and this series of amendments demonstrates that we have done so. We thought that we should do more to respond to the concerns. Therefore, most of the amendments relate to extending the opportunities for parliamentary scrutiny.
Amendment No. 26 requires persons stating that they do not intend to appeal to do so in writing before the power to make a remedial order can be exercised. This places on a statutory basis what is likely to happen in any event, because the only way in which Clause 10(1)(a) can operate in practice will be for the person making the order, if he wishes to proceed urgently before the time for appeal has expired, to take positive steps by seeking statements from all interested parties to the effect that they do not propose to appeal.
I turn to Amendments Nos. 27 to 30. At the moment Clause 10(2) provides that, if a Minister of the Crown considers it appropriate to amend legislation using the power conferred, he may do so by making a remedial
I have seen the further report of the Select Committee on Delegated Powers and Deregulation which was printed yesterday. I shall come to that in a moment. The procedures for making remedial orders are at present in Clauses 11 and 12. Amendments Nos. 34 and 35 remove those clauses from the Bill. Amendment No. 60 inserts a new schedule into the Bill (Schedule 2) which reproduces Clauses 11 and 12, with certain modifications. We thought it would be easier to read and understand them if they were in one place. They are procedural and therefore we consider they should be in the schedule. Amendment No. 31 is simply consequential.
The modifications made in Schedule 2 by Amendment No. 60 are intended to provide greater opportunity for parliamentary scrutiny of draft remedial orders or remedial orders. Schedule 2 describes the different procedures for non-urgent and urgent orders. Essentially, a 60-day period of consideration is provided during which representations on an order or proposed draft order may be made, followed by a further 60-day period after which a non-urgent order may be made if Parliament approves it or an urgent order, which has been made, expires if Parliament does not approve it.
In the case of non-urgent orders, paragraph 3 of Schedule 2 provides for a document containing a draft of the proposed order and certain other information to be laid before Parliament for a minimum period of 60 days. After that, the draft order itself may be laid before Parliament together with a summary of any representations received. Under paragraph 2(a) of Schedule 2, a further 60 days must then elapse.
In the case of urgent orders made before first being approved in draft--this appears in paragraph 2(b) of Schedule 2--the order must, under paragraph 4 of Schedule 2, be laid before Parliament after it is made with the required explanatory information. If any representations are made on the order within 60 days of it being made, a summary of the representations must be laid before Parliament together with details of any changes proposed as a result of those representations. If there are changes, a replacement order must be made and laid before Parliament.
The point of having two 60-day periods is to provide an opportunity for representations to be made on the Government's proposals when laid in the form of a document containing a draft order and then an opportunity for considering the draft order, including any changes made before a Motion to approve the draft order is debated.
The report of the Select Committee to which I referred criticises one of the provisions of the new schedule inserted by Amendment No. 60. That is the
We took the report seriously. I believe that the criticism is perhaps misplaced. We did not need to follow the Deregulation and Contracting Out Act exactly because our schedule provides for two kinds of remedial order: non-urgent (paragraph 3) and urgent (paragraph 4). The Deregulation and Contracting Out Act has only one kind: non-urgent. If there were compelling reasons for amending primary legislation by means of a remedial order and the matter was urgent, we would proceed by way of an urgent remedial order made in advance of parliamentary scrutiny and approval. If the matter was not urgent, we would proceed with a non-urgent remedial order. It would not matter that the process took 120 days. It would still offer an advantage, in a compelling case, over the normal kind of amending legislation for which it might be difficult to find time in the legislative programme.
Therefore, I hope I can make two points. First, we listened carefully to concerns expressed by your Lordships about insufficient parliamentary scrutiny. I think we have attended to that. Secondly, we looked carefully at the comments of the Select Committee, took them into account but believe that the scheme we have is appropriate and acceptable. I beg to move.
Moved, That the House do agree with the Commons in their Amendment No. 26.--(Lord Williams of Mostyn.)
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