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Lord Hope of Craighead: I intervene to say that I shared the misapprehension of the noble and learned Lord, Lord Mackay of Drumadoon. I confess that I also thought from the wording of Clause 7(8)(a) that the rules referred to were in relation to the rules as regards what would happen in the court as opposed to the choice of the court. If it is to be the choice of the court, then the Secretary of State is the appropriate person to make those rules; and I should be perfectly content, for my interest, if that point could be clarified.

The Lord Advocate (Lord Hardie): I confirm, as I indicated informally to the noble and learned Lord,

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Lord Mackay of Drumadoon, during the break that the reference to the rules in subsection (8) is a reference back to Clause 7(2). The intention is that the Secretary of State would make rules as to which court or tribunal would have jurisdiction to entertain claims.

On the other hand, I wish to record that it is entirely appropriate that the head of the judiciary in Scotland, the Lord President or the Lord Justice General, as the case may be, should have responsibility for any procedural rules within the court. I am satisfied that that can be achieved without any special provision in the Bill, under existing powers.

On the other point raised by the noble and learned Lord, Lord Mackay of Drumadoon, I am afraid that I cannot indicate at this stage what the Secretary of State has in mind.

Lord Mackay of Drumadoon: I am grateful to the noble and learned Lord for confirming, for once, that I am wrong.

The second point that I raised is a matter of some interest, not least in relation to ancillary topics such as legal aid and the provision of the necessary resources for the courts. Perhaps some further thought can be given to that before the later stages of the Bill. Having received the explanation that I expected, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7, as amended, agreed to.

Clause 8 [Judicial remedies]:

[Amendment No. 57A not moved.]

Lord Mackay of Drumadoon moved Amendment No. 58:


Page 5, line 16, leave out subsection (2).

The noble and learned Lord said: This is a probing amendment which seeks to invite the Government to consider whether there might be merit in recasting Clause 8 to enable both civil and criminal courts to award damages to any individual who might be able to establish that they have been the victim of an unlawful act.

I readily accept that the suggestion I put forward is a somewhat unusual one, but the concern which has been expressed to me, and which I repeat, is that if the matter is first raised in a criminal court (which would not have power to award such damages), it may be necessary for the individual who has successfully established that he has been the victim of an act which is incompatible with his convention rights to raise a second action at further expense to himself, to others and the court system itself.

I accept that the amendment as framed may be open to some criticism as being technically defective, but the point that it seeks to address should be looked at. On that basis, I beg to move.

Lord Campbell of Alloway: Although no doubt perfectly crafted for civil proceedings, I wonder whether the noble and learned Lord the Lord Chancellor could have a look at this provision with a view to amending it in a more suitable form as regards criminal proceedings. It

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would be simply done. It is not a criticism of the drafting; it is just something which appears to have been overlooked. I wonder whether it could be looked at.

Lord Lester of Herne Hill: I wonder whether one matter could be clarified in the reply to the amendment. As those Members of the Committee who are judges or practical lawyers will know, one cannot obtain compensation under traditional English legal principles for maladministration unless there is misfeasance in public office, unless there is bad faith. However under the European Convention on Human Rights, the position is somewhat different.

It is clear that where a public authority acts in breach of legitimate expectations in a public law context and causes direct damage, there is a right under the convention to compensation. What I am not clear about as regards the structure of Clause 8 as it stands is what happens in, for example, judicial review proceedings, where what is at stake is a public law tort (a government tort) giving rise to direct loss, as distinct from the normal private law tort. That distinction does not normally arise under our legal system as it stands, except, as I say, where there is misfeasance in public office.

If I am right about the position under the European convention--it arises in an Irish case called Pine Valley Developments, where the European court held that there needed to be compensation for breach of legitimate expectations in the planning context--it seems to me that one needs to be clear whether, by means of a Pepper v. Hart statement, or under the wording of Clause 8, the Bill permits the remedy of compensation for what I call public law wrongdoing as distinct from normal private law tort in the context in which the convention would require it.

10.45 p.m.

The Lord Chancellor: Clause 8 provides the courts and tribunals with wide powers to grant such relief or remedy which they consider just and appropriate where they find that a public authority has acted unlawfully by virtue of Clause 6(1) of the Bill. Under Clause 8(2),


    "damages may be awarded only by a court which has power to award damages, or to order the payment of compensation in civil proceedings".

Under Clause 8(3):


    "No award of damages is to be made unless"--

and I miss out the intervening words--


    "the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made".

That is a comprehensive and comprehensible code. However, it is necessary to put down certain limits on what remedies a court or tribunal can provide. Subsection (2), which I have just read, provides one such restriction. It states that,


    "damages may be awarded only by a court which has power to award damages ... in civil proceedings".

Quite clearly, this means that a criminal court will not be able to award damages for a convention breach, even if it currently has the power to make a compensation order unless it also has the power to award damages in civil proceedings.

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So as to make the intention plain, it is not the Bill's aim that, for example, the Crown court should be able to make an award of damages where it finds, during the course of a trial, that a violation of a person's convention rights has occurred. We believe that it is appropriate for an individual who considers that his rights have been infringed in such a case to pursue any matter of damages through the civil courts where this type of issue is normally dealt with; in other words, to pursue the matter in the courts that are accustomed to determining whether it is necessary and appropriate to award damages and what the proper amount should be. For that reason, we regard the inclusion of subsection (2) as an entirely proper part of the scheme.

We say that the Crown court, in cases of crime, should not award damages. The remedy that the defendant wants in a criminal court is not to be convicted. We see very considerable practical difficulties about giving a new power to award damages to a criminal court in convention cases. It would seem to me to open up the need for representation in the Crown court to any person whom it might appear in the course of criminal proceedings might be at risk of damages. We believe that that would be potentially disruptive of a criminal trial. Similarly, a magistrates' court is a criminal court and, under the amendment, it could award damages. We believe that it is appropriate that the civil courts, which traditionally make awards of damages, should, alone, be enabled to make awards of damages in these convention cases.

Lord Lester of Herne Hill: Before the noble and learned Lord sits down, perhaps he could deal with the particular question that I raised regarding Clause 8(2). I follow the noble and learned Lord and respectfully agree with him about the position of the criminal courts. However, my question is: what happens with a judicial review court, which is only entitled to grant damages if there is a tort which could give rise to a damages claim in a civil court? The problem I seek to raise is this. What happens under the convention in a judicial review court where the convention requires the payment of damages for what is really the Government tort of breaking the convention--notably, where there is a breach of expectations but that may not be the only example? Will the position be that the damnified applicant has first to go to the judicial review court and then bring a Government tort claim in an ordinary civil court or will he be able to get his remedy under the convention for damages for public law wrongdoing in the judicial review court? I do not expect an answer off the cuff to that question as it has not been thought about, but I should be most grateful if there could be a considered reply in correspondence if that is the convenient way of proceeding. It seems to me to be quite important to sort this out if one can.

Lord Campbell of Alloway: I am rather naive about these affairs. Is there such a thing as a government tort for breach of the convention? I have not heard of one. I should be grateful if the noble and learned Lord could give us some clarification on that.


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