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Earl Russell: Perhaps I may add a few further words. I agree that there is a power to question Ministers. Let me remind the Minister of another Motion which was carried in this House. On 6th July 1992 there was a Motion in the name of the noble Lord, Lord Henderson of Brompton, about board and lodging in bed and breakfast accommodation. The power to question the Minister was exercised when he failed to respond to that Motion. The year 1992 is quite some time ago, but nothing has happened yet.

Lord Williams of Mostyn: Perhaps I may deal briefly with that point. The position would be no different if the amendment were carried. The amendment simply requires the Minister to come to Parliament and answer questions. It does not require him to follow a certain course of action. Therefore the net result would be exactly the same.

Lord Goodhart: The answer by the noble Lord, Lord Williams of Mostyn, has not wholly covered the

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situation of the applicant who is faced with a potentially long delay if there is no obligation to bring forward a decision and to announce reasons for it. However, in the circumstances, I do not press the matter further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Ackner moved Amendment No. 67A:


Page 6, line 15, at end insert--
("( ) After a declaration of incompatibility has been made the Minister may grant such relief to the person in whose case the declaration was made or to any other person as shall seem to him just.").

The noble and learned Lord said: The amendment is short and simple. It is in the nature of a probing amendment. I can put the substance of it within a few minutes.

The heading to Clause 10 is,


    "Power to take remedial action".

Amendment No. 67A and the amendments grouped with it seek to provide the opportunity for the Minister to take remedial action, which is full and effective by way of remedy, rather than the limited activity provided for in Clause 10. The Minister should be able to grant such relief as he considers just and appropriate to the person who is party to the proceedings in which the declaration or finding of incompatibility has been made; and indeed to any other person who a Minister considers is similarly affected. I seek to inquire why remedial action is as limited as it is in this clause. I beg to move.

Lord Goodhart: Amendments Nos. 67A and 70 give the Minister a discretionary power to award compensation to a claimant where there is a declaration of incompatibility. Under Clause 8, such a claimant is not eligible for compensation or damages because there is no finding that there has been an unlawful act. Clearly a declaration of incompatibility is not a finding that there has been an unlawful act.

It is desirable that a power to award compensation should exist. It may well be that in the circumstances there is power to make an ex gratia payment in exercise of the prerogative but it is surely better to give that power a statutory basis. It will of course still remain discretionary.

Amendments Nos. 69, 75 and 78 are required through the failure to incorporate Article 13 of the convention. That has already been discussed. New legislation introduced under the Clause 10 procedure must clearly provide an effective remedy for victims; otherwise it will simply not be doing its job. Amendment No. 78 is added because it is for the victim that the remedy must be provided. That is a different situation. For example, an interest group should be able to raise the question of convention rights. There is no question of an interest group seeking a remedy for itself. The remedy must be a remedy for the victim. Therefore I ask the noble and learned Lord the Lord Chancellor to consider the

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amendments which are grouped together in order to clarify what is not sufficiently clear in the legislation as it stands.

The Lord Chancellor: In speaking to Amendment No. 67A, I speak also to Amendments Nos. 69, 70, 75 and 78. I appreciate that these amendments are of a probing nature. Amendment 69 would explicitly provide that the power to amend legislation by means of a remedial order should include the power to make amendment so as to provide effective remedies for victims of an unlawful act.

There are several difficulties in making remedies of this kind subject to a statutory provision in the manner proposed. First, the amendments could extend the scope of remedial orders wider than is desirable. The specific purpose of these orders is to put right incompatible legislation. It is for this purpose that we have concluded that the power to amend primary legislation by order is necessary. The amendments proposed would bolt on remedies for individuals of a wholly different character from remedies which are designed to put right incompatible legislation to make it compatible. Individual remedies do not naturally fit into that. The amendments would open up the prospect of legislative amendments being made by order under the Bill but having a much wider extension than the present drafting of the Bill permits.

As at present advised, we think that that would create too sweeping a provision. It would threaten the ability of the Minister to consider whether and to what extent a retrospective remedy was required by the facts of the case; and it would threaten the sovereignty of Parliament, since any order for its approval would be bound to contain such provisions. It is no answer to point to the words,


    "such amendments as may be appropriate and necessary".

We believe that in practice those words would entail a presumption that a remedy would always be necessary.

We think it more appropriate for decisions on what remedy should be given to individuals affected by a particular act to be taken by the Government in light of the individual circumstances of every case--and they will vary infinitely. There are existing ways in which this could be achieved. For example, should it be thought necessary for a remedial order affecting the legislation to take effect from a date earlier than that on which the order was made, this will be possible under the Bill; Clause 11(1)(b) so provides. This will not of itself provide a direct remedy to individuals affected by the legislation which has been retrospectively amended; but, following the order, it may be open to them to seek such a remedy. In addition to these powers in the Bill, there are prerogative powers which can be exercised and other ex gratia actions that could be taken to grant remedies in appropriate circumstances.

Amendments Nos. 67A and 70 take a slightly different approach. They suggest making explicit the power of the Minister himself to grant a remedy, in addition to and alongside a remedial order remedying an incompatibility in the legislation. This is not necessary unless the intention is to broaden the means available to

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the Minister. It is not clear what kind of power it would be. There is a danger that the prerogative would to some extent be superseded by this statutory provision. We think it unwise to tinker with the prerogative without being clear about what the impact would be.

For all those reasons, we are not persuaded that the proposed amendments are beneficial and we invite noble Lords to consider withdrawing them.

Lord Ackner: I am grateful to the noble and learned Lord the Lord Chancellor for his very full explanation, which I should like to consider with a view to returning to the matter, if necessary, on Report. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.45 p.m.

Lord Campbell of Alloway moved Amendment No. 67B:


Page 6, line 16, leave out subsections (2) to (5) and insert--
("( ) If a Minister of the Crown considers that, in order to remove incompatibility it is appropriate that legislation should be amended, he may--
(a) as regards primary legislation, introduce an amendment bill in either House of Parliament; and
(b) as regards subordinate legislation, make a draft order containing the proposed amendments, which order shall be laid before Parliament and subject to approval by resolution of each House.").

The noble Lord said: The object of this amendment and the grouped amendments that Clauses 11 and 12 do not stand part of the Bill is straightforward and simple. It is to remove the fast-track procedure under which it is proposed to amend primary legislation by Order in Council and to retain the traditional parliamentary process for amending primary legislation which has served us so well for so long.

This amendment to Clause 10, which is concerned with remedial action to assimilate the convention with our domestic law, retains Clause 1(a) where a declaration of incompatibility under Clause 4 has been made in our courts. It also retains Clause 10(1)(b) where a decision of the European Court of Human Rights has given rise to incompatibility. However, subsections (2) to (5) relating to the fast track are removed. If the amendment were to be accepted by the Committee, Clause 11, concerned with remedial orders, and Clause 12, concerned with procedure, cannot stand part of the Bill.

The machinery proposed for the implementation of the fast track under Clause 10, subsections (2) to (5), Clause 11 and Clause 12 disturbs the delicate balance which separates the powers of the legislature from those of the judiciary. It is without the constitution as it has so far evolved, which has as yet not adopted this novel approach to law-making--an approach which is not necessary, satisfactory or sound. There was no reference to this fast track in the Labour Party Manifesto; there is no mandate for its introduction.

The amendment to which I speak is a procedural one which in no way challenges the principle of the Bill. Incorporation of the convention without any direct

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assault on the sovereignty of Parliament to provide a domestic remedy in our courts is wholly acceptable. The means proposed for implementation by the fast track is not acceptable. It is only the proposed means of procedure which the amendment calls into question.

Members will appreciate that the Bill, and the amendment, are of vast constitutional importance to every one of Her Majesty's subjects and to every institution within the realm whose functions are of a public nature. In the light of last Monday's debate on Amendment No. 40, in the name of my noble friend, Lady Young, it is apparent that all institutions whose functions are of a public nature are subject to the fast track unless it is established to the satisfaction of the courts that the exercise of a particular function was of a private nature. The question whether the function of the institution was of a public nature and whether the exercise of a specific function was of a private nature would be decided on the facts of each case. It is not clear where the burden of proof on either question would lie.

In the course of debate it became apparent that this fast-track procedure was of concern to the established Church and to other religious institutions, for the set of rights and obligations to be incorporated had explicit and implicit moral overtones. The right reverend Prelates, the Bishops of Exeter and Lichfield, observed that the decisions of the Synod, albeit ethical, had the quality of primary legislation and were not of a private nature.

In the context of the fast-track procedure, the Committee will be aware of the sixth report of the Delegated Powers and Deregulation Committee, in particular paragraphs 22 to 25, concerning resort to Henry VIII powers. My noble friend Lord Henley sought an assurance from the Lord Chancellor that he would abide by the recommendations of that all-party Select Committee. The noble and learned Lord declined to give any such assurance. However, in opening a debate it is hardly appropriate to stray into the area of storm-tossed seas of contention and so I pass on.

On Second Reading the noble and learned Lord the Lord Chancellor conceded that,


    "A power to amend primary legislation by [Order in Council] is not a power to be conferred or exercised lightly".--[Official Report, 3/11/97; col. 1231.]

As yet no justification has been advanced for so doing. On Second Reading reservations were expressed by many noble Lords. My noble friend Lord Kingsland explained why the means of incorporation were of critical consequence and concluded in a closely reasoned exposition why the fast track failed to afford proper parliamentary consideration for future legislation. The noble and learned Lord, Lord Wilberforce--I am delighted to see him in his place--expressed reservations as to the effect of the fast track on substantive law; as to calling upon judges to undertake functions normally suitable for Parliament and as to the interpretation of vague phrases in the convention in concrete cases. He referred to vague phrases such as "private life" and "family life", not defined in the convention. Reference has already been made to "public authority" where the

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incidence of fast track is left open, without any statutory exclusion, to be decided by the courts on the specific facts of each case.

It is no easy task to amend primary legislation to reflect declarations of incompatibility on the facts of concrete cases; to assimilate and thereby achieve compatibility with the convention. Law-making on the hoof, in particular in these circumstances, has inherent incalculable hazards. Is it not better to take time to get it right? Has not due parliamentary process that very propensity? As part of such process no doubt a Select Committee of your Lordships' House, chaired by a noble and learned Lord with other noble Lords and noble and learned Lords as members, could report on the form an amendment to primary legislation should take to reflect the judicial declaration of incompatibility. That would be an invariable source of guidance for both Houses in the interests of the country.

One must be realistic. It is idle to seek accommodation on this amendment. The gulf is too wide. But the Committee may wish to consider in due course whether, in the light of this debate today, any justification has been advanced for the abrogation of due parliamentary process for the amendment of primary legislation. I beg to move.


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