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Lord Campbell of Alloway: Will the noble Lord give way? I am much obliged. I have only been in this place for about 18 years, but I have never heard anything like this after dinner. For how long is this going on? The issue is so simple. It has already been explained.
The authors point out that enacting Clause 7(3) as it stands risks preventing some human rights cases from being brought that ought to be brought in the public interest. Public interest groups face losing standing to raise convention human rights points in circumstances in which otherwise they would have standing, even over fundamental rights points rooted in the common law.
Enacting Clause 7 as it stands would produce discrepancies over standing to bring judicial review proceedings between: (a) purely domestic law cases; (b) domestic law cases under the Human Rights Act; and (c) domestic law cases under directly effective European Community law with a human rights element.
But if Clause 7(3) is enacted as it stands, that is what would happen not in ordinary judicial review cases, but where fundamental human rights are at stake. Technical rules, based on the unsatisfactory Strasbourg case law, will be incorporated into English law. It is surely absurd and unworkable to have different tests of standing according to whether the judicial review application is based upon: (i) ordinary common law principles; or (ii) common law principles matching or embodying convention rights; or (iii) directly effective Community law; or (iv) convention rights; or (v) a combination of any of those four grounds. But if Clause 7(3) is enacted as it stands, it will hamper the proper administration of justice, unnecessarily increase the legal costs of judicial review proceedings and create legal uncertainty.
For all those reasons--and I apologise for the length of my remarks--I seek to remove the reference to "victim" at the end of Clause 7(1), together with Clauses 7(3) and 7(4), from the Bill, leaving the issue of standing to the well-established just, reasonable and workable tests of standing used in English public law and Scots judicial review. I very much hope that the Government will think again. I beg to move.
Lord Campbell of Alloway: I support the amendment. I protest against this sheer abuse of this House--at having to listen to these esoteric lectures on law at this hour of night. The issue is totally simple. Our own procedure will safeguard everything that is put in the words of the Bill--"the victim". It is preferable, for the reasons given, to have this amendment than to use the term "the victim". Why we have to be entertained for 20-something minutes with cases from here, there and everywhere totally defeats me, and I protest against it.
Lord Ackner: The wheel has gone full circle. Some 25 years ago I had the privilege of hearing the noble Lord, Lord Lester, as a junior allowed by his leader to address me on Spanish law in a commercial case that lasted 15 weeks. Sitting at the back was his father, listening with admiration, against whom I used to appear in the county court. Now, 25 years on, I have had the privilege of hearing him in the Court of Appeal in the House of Lords in Pepper v. Hart, the Spycatcher case and other cases, and I reach here in 1997 the position of being led by the noble Lord on a very important amendment.
I brush to one side what seem to me the offensive observations of the noble Lord, Lord Campbell. A great deal of work has been put into the noble Lord's remarks. It will read very well in Hansard. It sets out in an irresistible way the strength of the amendment that he has mounted and I support it strongly.
Baroness Amos: I shall be very brief as I appear to be losing my voice. The Bill proposes in Clause 7 to adopt the convention test for "victim" as the standing requirement for parties seeking to rely on the convention against a public authority in judicial review proceedings. The White Paper explains that that means that individuals or organisations will need to show that they have been directly affected.
I welcome the fact that one of the key elements of the Bill is establishing a human rights culture and context in the United Kingdom which will ensure that individuals understand their rights and have access to justice. I am therefore disappointed that public interest organisations appear to be excluded from taking cases in their own name even though that has been established by the courts as a legitimate development in the public interest.
I recall during my years at the Equal Opportunities Commission the importance of the commission having standing to take a case. This will be particularly important during the early stages of incorporation, when there will be a need to clarify the law. A case brought by a group can clarify the law for many people, some of whom may not even know of their rights. A well focused case, brought in good time, may also save public money--for example, multiple legal aid costs. In most cases there clearly will be a victim; but I believe it is important that we do not now go backwards and limit the access to the courts of public interest organisations.
Baroness Kennedy of The Shaws: One of the Bill's great achievements is the way in which it grafts the convention onto the existing legal framework with a bare minimum of changes to the framework itself. While I welcome the adoption of the convention's definition of "victim", there seems to me no reason why that should lead to a modification of any features of the law of judicial review in relation to convention claims. I respectfully suggest that the preferable approach would be to leave untouched the present law concerning what constitutes "a sufficient interest" for the purposes of judicial review and to allow the courts to continue to develop the jurisprudence as to the circumstances when it is in the public interest for a challenge to be heard, even when there is no victim; otherwise in the same case the court will have to refuse to hear a public interest body raising a point about fundamental human rights when it will hear the same body on less fundamental issues.
Lord Meston: If the noble Baroness looks at the second Marshalled List she will see that that amendment is already down in my name as Amendment No. 50A. If the matter is to be taken further at Report stage, no doubt we shall have the benefit of supporting each other on it.
The case against enacting Clause 7(3) as presently drafted is compelling; and, if I may say so, in view of the intervention of the noble Lord, Lord Campbell of Alloway, my noble friend's introduction of the amendment was entirely justified considering the importance of the point which he wished to cover. I join my noble friend in paying tribute to the powerful analysis by Peter Duffy QC and Rabinder Singh.
Amendment No. 50A, which the noble Baroness has already read, proposes that it is preferable that the test of standing for all judicial reviews should be that of sufficient interest but at the same time makes clear that in all human rights cases anyone who would be a victim in Strasbourg terms would have a sufficient interest domestically.
The Lord Chancellor: The noble Lord, Lord Lester, was not deterred by the noble Lord, Lord Campbell of Alloway; nor was the noble and learned Lord, Lord Ackner, deterred by him. The noble Lord, Lord Campbell of Alloway, however, left the Chamber, as far as I could see, in protest at what he regarded as overly extensive legal anecdotage. For myself, I always enjoy listening to both noble Lords and the noble and learned Lord. They do not appear to have given much pleasure to each other this evening. I am disappointed that the noble Lord, Lord Campbell of Alloway, has not waited for the pleasure of listening to me; on the other hand, there might not have been much pleasure in that because I oppose the amendment.
The basic point, the critical issue, can be shortly and easily stated. It is whether the judicial review standing test domestically should apply to convention cases as well rather than the Strasbourg victim test, which is perhaps naturally more appropriate when we are bringing convention rights home. The fact that the two tests are not in accord causes the noble Lord, Lord Lester, uncharacteristically, to be hostile to the European test and to favour our domestic judicial review test.
I acknowledge that a consequence of that approach is that a narrower test will be applied for bringing applications by judicial review on convention grounds than will continue to apply in applications for judicial review on other grounds. But interest groups will still be able to provide assistance to victims who bring cases under the Bill and to bring cases directly where they themselves are victims of an unlawful act.
I also point out that Clause 7, consistent with the position in Strasbourg, also treats as victims those who are faced with the threat of a public authority proposing to act in a way which would be unlawful under Clause 6(1). So potential victims are included. Interest groups will similarly be able to assist potential victims to bring challenges to action which is threatened before it is actually carried out.
My noble friend, Lord Williams of Mostyn, reminded the House, both at Second Reading and on our first Committee day, that I am committed to implementing measures that will improve access to justice, and that I am giving serious consideration to Sir Peter Middleton's proposal that there should be a separate fund for public interest cases, including those involving convention rights.
I said in my speech to the Law Society's annual conference at Cardiff on 18th October that I believed it right to make special arrangements for cases that raise issues of wider public interest and that I intended to consult about the details. I am planning to issue a consultation paper early next year, but my officials have already begun informal discussions with various interest groups. That will of course include those bodies such as the Public Law Project, Justice, Liberty and the Child Poverty Action Group which regularly support applicants in the courts.
I emphasise to my noble friend Lady Kennedy of The Shaws that Clause 13(2) also makes clear that the Bill does not affect the existing ability of anyone with a sufficient interest to seek judicial review of a decision on non-convention grounds. A judicial review test will continue to apply and is in no way interfered with by the Bill. The sole and narrow point is whether the domestic English judicial review test of standing should apply where an application for judicial review is made on grounds other than convention grounds.
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