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The noble Lord said: My Lords, the amendment's purpose is to remove subsection (5) from Clause 41, which basically says that a lay justice who is a councillor must not sit as a member of the court in proceedings to which the councillor in question is party. That seems absolutely obvious. Subsection (5) states:
Under existing law, a party to proceedings has the right to an independent and impartial tribunalas required by Article 6 of the European Convention on Human Rights, which was introduced into our law under the Human Rights Act 1998. If a party to proceedings does not get an independent and impartial tribunal, they are entitled to have the decision set aside.
A tribunal is not independent and impartial if there is a possible perception of bias. It is not necessary to show that there was any actual bias. The first decision by your Lordships' House in the Pinochet case was set aside because of the involvement of one of the members of the appellate committeethe noble and learned Lord, Lord Hoffmannwith Amnesty International. Amnesty was not a party to that case but had intervened for the purpose of addressing arguments to the appellate committee. No one suggested that it was necessary to show that the noble and learned Lord was actually biased.
The presence on a tribunal of a judge who has a personal interest in a matter means that the decision in which he participates can be challenged under the Human Rights Act. What, therefore, is the purpose of subsection (5)? The Government are suggesting that it does not really alter the existing law. If so, why is it there? It seems to go beyond existing law. If a person who decides something is disqualified, under the Human Rights Act that person does not constitute an independent and impartial tribunaland the decision will be set aside if it is challenged. In other words, the decision will be set aside because of the disqualification.
It appears that subsection (5) requires something more than the mere fact of disqualification. That can only mean that there is a need to show not just the fact of disqualification but real bias or a real risk of bias by the individual in question. If the Government are correct, subsection (5) is unnecessary. If we are correct, subsection (5) is incompatible with convention rights. Why not drop it? I beg to move.
Lord Borrie: My Lords, I oppose the amendment because it fails to take into account the inconvenience and time wasting that could arise. After short or long proceedings have been completed, a decision could be overturned because of a technical breach of Clause 41. I agree with the noble Lord that a party should be enabled to seek to overturn a decision made by a
But if the decision of the justices were automatically voidwhich it would be if we deleted subsection (5)in certain cases that could be against the public interest. It could, for example, lead to a litigant taking advantage of a technical breach, so abusing the judicial system. Think of a case typically decided by three magistrates in which the local authority is one of the litigants and one of the lay justices is a member of the local authority. He may not have been a member of the relevant committee or had anything to do with the matter but there would be a technical breach. If somebody wanted to avoid the decision on that ground, so be itit could be challenged.
Lord Goodhart: My Lords, is the noble Lord aware that at a much earlier stage, the noble and learned Lord, Lord Donaldson of Lymington, pointed out that invalidation would only arise where the decision was challenged?
Lord Borrie: My Lords, I am happy that we agree. I recall the noble and learned Lord saying that if there were disqualification on the ground that one of the deciders was a member of the local authority, the decision would be voidable and could be challenged. Removing subsection (5), with its use of the word "merely", means that a decision so reached should have no effect even if nobody challenged itwhich is unfortunate and would be better avoided.
Baroness Anelay of St Johns: My Lords, I support Amendment No. 16, to which I have put my name. I shall not abuse Third Reading by repeating all the arguments. For those who are interested, they appear at cols. 528530 of the Official Report for 10th February; and at cols. 12721273 of the Official Report for 8th May.
The noble Lord, Lord Borrie, questions why a decision should be annulled for just a technical breach. The tribunal member may not have been on the committee involved but might have been lobbied or be part of the party caucus. That is my answer to the noble Lord and why I continue wholeheartedly to support the amendment. The public need confidence in decisions taken by our magistrates.
Viscount Bledisloe: My Lords, I confess to being puzzled by the points made by the noble Lord, Lord Borrie. He said that it would be inconvenient and expensive to have a decision set aside. Of course it isbut it was inconvenient and expensive to have the Pinochet decision set aside. It meant rather greater expense than setting aside the decision of a magistrates' court.
Let us suppose that Clause 41 was not in the Bill. Surely on a plain common-law basis, a decision made by a Bench of magistrates on which one member of the local authority in question was sitting would automatically be voidable under the Pinochet doctrine. While the noble Lord, Lord Borrie, says that the magistrate in question may not have had much connection with the decision by the local authority, there was no suggestion that my noble and learned friend Lord Hoffmann had any connection with Amnesty International's decision to intervene in the case or to take part. The point is that he was there and it looked like there was a connection.
I confess that I do not understand what the situation would be if subsection (5) stayed where it was and someone applied not under the Bill but under the common-law basis on grounds of apparent bias consisting of the fact that the magistrate was a member of the local authority. If the whole of Clause 41 was not there, he would win. Is it suggested that subsection (5) means that he will now lose, or does it leave the common-law doctrine available but say, "You cannot rely on the statute", in which case it makes no difference? It seems that the present clause is curious and the amendment must be right.
Baroness Scotland of Asthal: My Lords, I am not able to agree with the position advocated by the noble Lord, Lord Goodhart, and supported by the noble Baroness, Lady Anelay, and the noble Viscount, Lord Bledisloe. My noble friend Lord Borrie was correct in his analysis.
As the noble Lord, Lord Goodhart, suggested, he has brought back his amendment asking for the removal of subsection (5) of Clause 41previously Clause 36. We have debated the matter in Committee and on Report, and I am not sure that there is a great deal that I can add. We had an extensive Committee debate and Report stage. I hear echoes of Committee-type debates this afternoon.
We remain content with the draft as it stands. We are content that it could not prejudice anyone's rights under Article 6 of the European Convention on Human Rights. The Joint Committee on Human Rights has agreed with that view, and as I said before, as it is satisfied with the clause we feel strongly that it would be inappropriate to go behind that view.
Although I am happy to repeat the detailed reasoning that I have already repeated twice, I hope that I do not need to do so, other than in "telegraphic form"to adopt the mantle of the noble Lord who normally sits on the Benches opposite but is not in his place. As I explained in Committee and on Report, the use of the word "merely" in the clause avoids conflict with Article 6. If a local authority justice were to adjudicate where Article 6 of the convention is engaged and in circumstances where that article is violated by his so doing, that would be unlawful by reason of Section 6 of the Human Rights Act 1998.
I noted that when the noble Lord, Lord Goodhart, was explaining the rationale behind the amendment he said that a risk of bias must be shown. That is not entirely right, because a legitimate doubt as to bias must be established. That may not be the case in relation to interlocutory decisions.
Subsection (4), as I mentioned before, is drawn widely. It says "no act". It does not refer only to final decisions or to decisions of any substance. It will catch unobjectionable interlocutory decisions. I do not think that anyone would suggest that it would change the odds where the decision was a determination or could affect a determination under Article 6.
Clause 41 would not necessarily impinge on the same population of judicial decisions as much convention case law does. In a case as complex and sensitive as Pinochet, it may be that there is no interlocutory decision which is not of moment. That would not necessarily be true in all cases proceeding in the magistrates courts. Of course we accept that membership of a local authority that is party to a case may cause a lack of impartiality, but we do not believe that a complaint could be sustained in relation to every single act of the justice in question. As I have said, subsection (5) would cover every single act.
Finally, I want to repeat a point I made on Reportwhich, with the greatest respect, is a telling point: that the phrase in question has been extant since the Justices of the Peace Act 1949. I do not believe that it has given rise to any injustices or problems in all that time. The need for impartiality and independence is nothing new. If the phrasing of the subsection were as objectionable as the noble Lord, Lord Goodhart, and the noble Baroness, Lady Anelay, believe it to be, someone would have challenged it before now.
We do not believe that the new climate of human rights has changed things so much that the provision has become unacceptable. If anything, the Human Rights Act has strengthened the position and should make it easier for those who wish to challenge to do so. I hope, therefore, that the noble Lord will withdraw his amendment and rely on the sagacity and good sense of the Joint Committee and our concurrence with its view.
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