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Mr. Dominic Grieve (Beaconsfield): The amendments from the Government and the Opposition are incompatible. The Government are trying to widen the ability to intervene, or to nominate somebody to intervene, and to remove the discretion of the court to prevent such a nomination from being acceded to. Previously, it had to be by application, and it will now be by notice. We are seeking to widen the criteria of people who might be able to intervene if they feel that their rights are affected.
What concerns me is that there may well be occasions when individuals or groups feel that a judgment will impinge on them very much. They might have an entitlement--certainly under the ordinary rules of court--to intervene and to be allowed to be joined. How will they be affected by this position?
Mr. O'Brien:
The hon. Member for South Cambridgeshire also raised those points, and was concerned that persons who might be affected by a declaration of incompatibility and any subsequent change would be able to be a party to the proceedings. Our view is that it should be a matter for the Government, the Minister and those nominated by him to inform the court's arguments and decisions. It should not be the right of persons who would not otherwise be able to be joined to the proceedings--merely because a declaration of incompatibility has been considered--to make themselves a party. If they have another locus to join in the proceedings, they can pursue that in the normal manner. We do not propose to create new mechanisms for parties to be joined.
The hon. Member for South Cambridgeshire explored that matter further, and asked about primary legislation and secondary legislation. In terms of primary legislation, he is right to say that we envisage that an individual or organisation would approach the Government, as it is a decision for the Government whether to act on the
declaration of incompatibility. In a sense, nobody is affected until the Government have made that legislative change.
Quite rightly, the hon. Member for South Cambridgeshire asked about secondary legislation. Our view is that, if we were to create the circumstances in which anyone who might be affected by a decision could somehow parachute in and create a new situation in the court, it would lead to chaos. If they have the right to be a party to the proceedings, they should, in the normal course of a civil case, become a party to the proceedings. That would not be the effect in a criminal matter. We must be careful not to create new opportunities for persons to become involved in criminal matters.
The opportunities are there. It may be that those involved have the ability to become a party to a civil proceeding. They almost certainly would not, and should not, have the ability to become a party to a criminal proceeding. In the normal course of events, if they are able to become a party to a proceeding, it is a matter for them to do so. Those who would not have the ability to become a party to a proceeding must deal with the Government afterwards.
The hon. Member for South Cambridgeshire also touched on the matter of definitions of public authorities. We are moving to that matter, and--if he will forgive me--it is probably better if we deal with it later. I think that I have dealt with most of the points raised, and I hope that the hon. Member for Hertsmere will not press his amendments.
Mr. Clappison:
I have listened carefully to the Minister, and I am grateful for his full response. This has been a useful exercise, and we have taken matters a little further through this exploratory amendment. However, I am still not entirely satisfied with where matters stand. We have found out a bit more about the circumstances in which the Government envisage the power to nominate somebody being used, but we are not clear why they want to do so.
I am also not entirely satisfied about why it would not be simpler for the Minister simply to nominate someone to represent the Crown in all such proceedings. I draw some reassurance from the fact that the Minister said that there will be few proceedings in which it is envisaged that someone will be nominated to act on behalf of the Crown. However, even in those few proceedings, there may be a risk of a conflict of interest arising. The Minister knows full well that, in such litigation, it is not always possible to foresee where a conflict of interest will arise. There are occasions when there appears to be no conflict of interest at the beginning of litigation, but one develops during litigation.
We are concerned that the Crown's voice is heard, and that it represents the public interest when a courtis considering whether to make a declaration of
incompatibility. The public interest, as represented by the Crown, must not be affected by any other considerations which another party to the proceedings might well have. We are speaking up for the public interest in this matter. I have listened to what the Minister has said, and, to make progress, I do not propose to press the amendment.
Nor do I propose to press amendment No. 20, although the question of litigation affecting large numbers of public authorities--the Church is a classic example--should be dealt with. We have heard concerns expressed in this House and elsewhere about vexatious litigants who are queuing up to bring charges against the Churches. I do not want to go too far down that road at the moment, but I take that as justification for the amendment. However, in the interests of making progress, I beg to ask leave to withdraw the amendment.
The Chairman:
Order. Procedurally, that is not necessary, as I am about to put the Question on a Government amendment on which the others hang.
Amendment agreed to.
Amendments made: No. 121, in page 3, line 35, leave out
and insert 'giving notice'.
No. 122, in page 3, line 37, leave out 'An application' and insert 'Notice'.
No. 123, in page 3, line 37, leave out 'made' and insert 'given'.
No. 124, in page 3, line 40, leave out
and insert
Clause 5, as amended, ordered to stand part of the Bill.
Sir Norman Fowler (Sutton Coldfield):
I beg to move amendment No. 106, in page 4, line 7, at beginning insert--
The Chairman:
With this, it will be convenient to discuss the following amendments: No. 27, in page 4, line 17, leave out from 'court' to 'the' in line 22 and insert 'and'.
No. 28, in page 4, line 24, leave out 'or tribunal'.
No. 29, in page 4, line 24, leave out from second 'court' to 'when' in line 25.
No. 30, in page 4, line 27, leave out
No. 31, in page 4, line 31, leave out subsection (7) and insert--
No. 34, in page 4, line 31, leave out
No. 142, in page 4, line 32, at end insert--
No. 143, in page 4, line 32, at end insert--
No. 93, in clause 21, page 13, leave out lines 43 and 44.
Sir Norman Fowler:
The amendment was originally tabled by my right hon. Friend the Member for North-West Cambridgeshire (Sir B. Mawhinney). In so far as it relates to the press, I declare an interest as non-executive chairman of Regional Independent Media, which publishes newspapers both in Yorkshire and in Lancashire, although regrettably not in Blackburn. As the Committee knows, there is more than one view in the newspaper industry on the issues surrounding the clause.
The amendment goes far beyond the press and the Press Complaints Commission; it relates to the definition of a public authority. Clause 6 makes it
'an application made to the court'
'an application under this section'
'a notice under subsection (2)'.--[Mr. Mike O'Brien.]
'( ) A public authority is any person or body which--
(a) is established and regulated by statute; or
(b) has ministerial appointments on its governing body;
and for the purposes of this Act such a person or body under paragraph (a) above is only a public body when acting in the discharge of its statutory functions.'.
'by virtue only of subsection (3)(b)'.
'(7) For the purposes of this Act, the private acts of a public authority shall not be regarded as incompatible with Convention rights'.
'by virtue only of subsection (3)(b)'.
'( ) A court or tribunal shall not determine that a person is a public authority for the purpose of subsection (3) (b) if in relation to a complaint based on similar facts made against the United Kingdom in respect of an act, decision or omission of that person the European Court of Human Rights would declare a complaint to be incompatible with the Convention under Article 27(2).'.
'( ) A court or tribunal shall determine that an act is private in nature for the purpose of subsection (7) if in relation to that act the European Court of Human Rights would declare a complaint based on similar facts to be incompatible with the Convention under Article 27(2).'.
"unlawful for a public authority to act in a way which is incompatible with a Convention right."
However, there is substantial vagueness in the definition of a public authority. Clause 6(3) states that a
"'public authority' includes . . . a court or tribunal, and . . . any person certain of whose functions are functions of a public nature".
The notes to clauses say that the clause proceeds on the basis that some authorities are so obviously public that it is not necessary expressly to define them. Indeed, in the other place, the Lord Chancellor said:
"Clause 6 is designed to apply not only to obvious public authorities such as government departments and the police, but also to bodies which are public in certain respects but not others."--[Official Report, House of Lords, 3 November 1997; Vol. 582, c. 1232.]
Unsurprisingly, the vagueness of such language has led to substantial argument about what is and what is not covered. Lord Donaldson, the former Master of the Rolls, asked the obvious question--what are functions of a public nature? In the other place, he said that central Government, local government, the police, immigration officers, prisons, courts and tribunals were covered, but that he found it difficult to understand the White Paper guidance that
"companies responsible for areas of activity which were previously within the public sector, such as the privatised utilities",
also exercised public functions. He asked:
"What has the fact that the activity was originally in the public sector got to do with the definition that we find in the Bill"?--[Official Report, House of Lords, 3 November 1997; Vol. 582, c. 1293.]
17 Jun 1998 : Column 401
He wondered whether there would be any difference between the BBC and ITV companies or commercial radio. Indeed, he took the view that all of them were included in the definition of a public authority. He asked where the process would end--he wanted to know whether Safeway or, indeed, Asda were covered, as they self-evidently conducted business of a public nature. He was led to the conclusion that there must be a better way in which to define what is meant by a public authority. The amendment seeks to address that issue.
Responding to the concerns raised on Second Reading in the other place, the Home Office Minister, Lord Williams of Mostyn, said that he anticipated that the BBC would be a public authority, that Channel 4 might be a public authority and that commercial television stations might not be public authorities. He said:
"Some authorities plainly exercise wholly public functions; others do not. There is no difficulty here."--[Official Report, House of Lords, 3 November 1997; Vol. 582, c. 1309.]
My response to that is, with respect,
"Up to a point, Lord Copper",
as he then went on to discuss newspapers. His view was, subject to the proviso that this was a matter for the courts to determine in due course, that a newspaper was not a public authority. Indeed, much of the debate has been about that issue, particularly the status of the Press Complaints Commission.
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