Joint Committee On Human Rights First Report



The Committee is considering whether to report to each House on the above Bill. It has carried out an initial examination of this Bill, and has formed the provisional opinion that the Bill is, in general, compatible with relevant human rights obligations. The Committee would, however, be grateful for your comments on the following point raised by its Legal Adviser. Our starting­point is of course the statement made under s.19(1)(a) of the Human Rights Act 1998; but I should make it clear that the Committee's remit extends to human rights in a broad sense, not just the Convention rights under the Act.

1. The Explanatory Notes

Explanatory Notes have been published,[133] but are not as helpful as they could be in relation to the Bill's human rights implications. In your most recent guidance to Departments, it was recommended that Explanatory Notes should briefly identify any Convention rights which are thought to be affected by the Bill. In the absence of any such commentary in the Explanatory Notes, would it be correct to draw the conclusion that the Government takes the view that the Bill engages no Convention rights?

2. Dismissing Justices of the Peace

Clause 11(6) would specify the limits of the Lord Chancellor's power to remove a JP. We welcome this. Nevertheless, we consider that a potential problem of institutional independence remains, as the person making the decision to remove a JP, albeit on specified grounds, would be a member of the Government. Why does the Government consider that the provisions of Clause 11(6) would be compatible with the right of litigants before JPs to a hearing by an independent tribunal as required by ECHR Article 6.1?

3. Immunity of JPs from civil liability

Clauses 26 and 27 contain provisions to the same effect as the present law under sections 51 and 52 of the Justices of the Peace Act 1997. The effect of the provisions is that a JP, or justices' clerk or assistant clerk when exercising the functions of a JP, is not liable to be sued for any act or omission in the execution of his or her duty in a matter within his or her jurisdiction. If he or she acts in purported execution of his or her duty, but in a matter outside jurisdiction, an action would lie if and only if it is proved that he or she acted in bad faith.

The immunity conferred by these provisions is equivalent to that conferred on judges of superior courts by the common law. It is quite possible that such an immunity would justifiable, despite an apparent interference with the right of access to a court under ECHR Article 6.1. However, it gives rise to a problem where a JP acts in such a way as to violate a person's Convention right. The Human Rights Act 1998, section 9 provides that normally the only remedy in such a case is to appeal against, or apply for judicial review of, the act, omission or decision. However, where a court order interferes with a person's liberty in violation of his or her right under ECHR Article 5.1-5.4, there must be an enforceable right to compensation (ECHR Article 5.5). Section 9 of the Human Rights Act 1998 therefore provides that damages may be awarded in respect of a judicial act for which ECHR

There is a presumption, when interpreting legislation, that a later Act which is inconsistent with an earlier Act is intended to restrict, amend or repeal it to the extent of the inconsistency. Because the Human Rights Act 1998 was enacted subsequently to the Justices of the Peace Act 1997, the immunity under the 1997 Act was naturally read as being subject to the right under section 9 of the 1998 Act. The Bill would repeal the 1997 Act[134] and enact the immunity once more as part of a later Act than the Human Rights Act 1998. Doing this might be interpreted as freeing the immunity from the restriction imposed by section 9 of the 1998 Act, interfering with the protection for the right to compensation under ECHR Article 5.5. It seems possible that a court would regard the duty to read and give effect to all legislation so as to be compatible with Convention rights so far as possible, under section 3 of the 1998 Act, as overriding the presumption that a later Act supersedes earlier, inconsistent legislation. However, the Committee has consistently taken the view that legislation should minimise the risk of incompatibility with human rights, and that appropriate safeguards should be included on the face of legislation whenever possible.

In the light of these considerations, the Committee seeks your view as to whether it would be desirable, for the avoidance of doubt, to amend clauses 26 and 27 by adding, in each clause, a new sub-clause (3), along the following lines: 'This section does not apply in any case to which section 9 of the Human Rights Act 1998 (judicial acts which are alleged to violate Convention rights) applies.'

4. Disqualification of lay justices who are members of local authorities

Clause 36 would provide that JPs who are members of local authorities would be disqualified from acting as a member of a court in proceedings brought by or against, or by way of appeal against a decision of, the local authority, a committee or officer of the authority, or the executive of the local authority, and certain other related bodies. We welcome this as an additional, express protection for due process rights both at common law and under ECHR Article 6.1. However, the effect of clause 36(5) seems unclear. It provides: 'No act is invalidated merely because of the disqualification under this section of the person by whom it is done.' This appears to leave open two possible meanings.

First, there is the possibility that a person might (for example) be convicted by a bench including a disqualified person, yet the conviction would remain valid. Such a bench might not constitute an 'impartial tribunal established by law' for the purpose of ECHR Article 6.1: it would seem to be affected by bias, and not to be established by law. It would seem to follow that the proceedings leading to the conviction should be regarded as void and invalid. If the clause has the effect of avoiding invalidity, it could well give rise to an incompatibility with rights under ECHR Article 6.1.

Secondly, and alternatively, clause 36(5) might mean that an act is only to be invalidated if it is vitiated by a violation of the common law principles of natural justice, or of the duty to act fairly, or of the right under Article 6.1; there are some acts (eg non-judicial acts, and those which do not determine a criminal charge or civil rights or obligations) which do not attract the full protection of the right to an impartial tribunal established by law, and these would remain valid notwithstanding the JP's disqualification.

In the light of these considerations, the Committee seeks your view as to what the effect of clause 36(5) is intended to be, particularly in relation to the right to a hearing by an impartial tribunal established by law under ECHR Article 6.1. If clause 36(5) is intended to have the first possible meaning outlined above, why does the Government consider that it would be compatible with ECHR Article 6.1? If it is intended to have the second possible meaning outlined above, could the drafting be amended to make this clear?

5. Effect of Act of Settlement 1700 on existing JPs

Some JPs have been appointed in contravention of section 3 of the Act of Settlement 1700. Clause 37 of the Bill would prevent section 3 of the Act of 1700 from invalidating any appointment of such a person as a JP before 31 January 2002, or any act done by virtue of such an appointment. According to the Explanatory Notes to the Bill,[135] this is intended to mean that their earlier actions as lay justices are not invalidated by the Act of 1700.

One effect of this may be to leave people affected by orders of an invalidly appointed JP without any remedy for acts or omissions which were unlawful at the time of their occurrence. If the acts or omissions involved the determination of a civil right or obligation or of a criminal charge, it might: (a) deprive parties of a remedy for violation of the right to a fair hearing by an independent and impartial tribunal established by law, under ECHR Article 6.1, because the tribunal would not have been established by law; thereby (b) violating the right of access to a court under Article 6.1 and/or (c) violating the right to an effective remedy for violations of Convention rights under ECHR Article 13 (which is not a Convention right within the meaning of the Human Rights Act 1998, but binds the United Kingdom in international law). If the acts or omissions led to a person being deprived of his or her liberty otherwise than in accordance with a procedure prescribed by law, contrary to ECHR Article 5.1, clause 37 of the Bill could also lead to a violation of the right to compensation under ECHR Article 5.5.

In the light of these considerations, the Committee seeks an explanation as to why the Government is satisfied that clause 37 of the Bill would be compatible with Convention rights.

6. Prosecution appeals from the Court of Appeal (Criminal Division)

Clause 83 would amend section 34 of the Criminal Appeal Act 1968 to extend the time allowed for the prosecution (but not the defence) to apply to that Court for leave to appeal to the House of Lords, or to apply to the House of Lords for leave to appeal after the Court of Appeal has refused leave. In each case, the prosecution would have 28 days. The defendant would continue to be allowed only 14 days. This introduces an inequality which seems to call for justification under the principle of equality of arms which forms an element of the right to a fair hearing under ECHR Article 6.1. Nothing in the Explanatory Notes explains the need for the inequality or the reason for allowing twice as much time to the prosecution as to the defence.

Why is it proposed to introduce this apparent inequality to the system of appeals, and why does the Government consider that such an inequality would be compatible with ECHR Article 6.1?

7. Setting the level of fees

Clause 87 would empower you, with the consent of the Treasury and after consulting a number of specified people and bodies, to prescribe, by statutory instrument, fees payable in respect of anything dealt with by the Supreme Court, county courts, and magistrates' courts. The level of fees affects people's right to have access to the courts for the determination of disputes at common law and under ECHR Article 6.1. As a safeguard for these rights, it seems desirable for Parliament to retain power to oversee the level of fees set by statutory instrument. We understand that the House of Lords Select Committee on Delegated Powers and Regulatory Reform has raised this matter with you. What is your view of the appropriate level of parliamentary control over the setting of court fees, and what considerations led you to that conclusion?

8. Representations

The Committee would also be grateful for a brief description of any other representations you have received in connection with this Bill in relation to human rights issues, and to what specific points those representations were directed.

The Committee would be grateful for a response to its questions by 10 January if at all possible.

17 December 2002

133   HL Bill 12-EN Back

134   See clause 98 of, and Schedule 7 to, the Bill Back

135   HL Bill 12-EN, para. 110. Back

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