| Previous Section | Index | Home Page |
5.15 pm
I am bound to say that when I was first contemplating how best to incorporate the European convention, it struck me that one way was simply to say that it was part of our common law, full stop, and leave it to the judiciary to formulate the remedies. That is what is being done--the Home Secretary may agree--with article 13. It is being left up in the air for the judiciary to make a formulation in so far as one may be required. It is in fact going to be part of our common law, but in a furtive way, as the right hon. Member for Llanelli said.
I find a lack of logic. It is perhaps an exercise in semantics, because the article will be included anyway when the time comes. However, when something is left out, we can rely on the fact that lawyers in court will latch on to it and formulate an argument that damages cannot be awarded. I can foresee a circumstance wherein the domestic remedy cannot be found in damages. Some court or other will say that it cannot award them. Then there will be the problem of going to appeal and possibly ending up in Strasbourg, when it is abundantly clear in the convention that an effective remedy of damages must be found. I question why article 13 is not included. I accept that at the end of the day it will be included by one means or another, but as we are trying to draft sensible legislation, I must raise a question mark.
I invite the Home Secretary not to give us an answer today but to go away and think about whether it would not be better to include the article in the Bill. Later we shall be discussing other areas in which we have tinkered around with the wording of the convention, some of which cause me far more disquiet, but I find it difficult to understand the logic behind excluding article 13.
Mr. Garnier:
I wish briefly to pose a question or two to the Home Secretary. I could not agree more with what my hon. Friend the Member for Beaconsfield (Mr. Grieve) just said. I hope that the Home Secretary will allow us another opportunity to revisit this subject. We do not want to overdo the dancing on a pin, be it a stately saraband or a rock and roll, depending on which side of the argument one happens to be on.
The Home Secretary gave us two reasons for not incorporating article 13 in the Bill. First, he said that it would be duplication. Secondly, he said that it would create confusion and perhaps additional remedies that were not intended. I draw his attention to the terms of article 13:
I am sure that I shall be corrected if I am wrong, but as I understand the common law of England it is not possible to get exemplary damages against the Crown; one can get exemplary damages against a chief officer of police or in other circumstances, but one is not entitled to exemplary damages against the Crown. Article 13, whether or not it appears in the Bill, suggests that we should all be entitled to an effective remedy, but if that remedy involves an application for exemplary or punitive damages against the Crown to compensate, the complainant in such cases will be denied. It may be that I am completely wrong on that point, but I should be most grateful if the Home Secretary could either remove my confusion or, as my hon. Friend the Member for Beaconsfield said, allow us to return to the issue on another occasion.
Mr. Straw:
Let me answer--I hope to their satisfaction, but perhaps not--the points that right hon. and hon. Members have raised. My right hon. Friend the Member for Llanelli (Mr. Davies) asked what the problem is and raised the issue of uncertainty. It was that uncertainty that concerned us when we sat down and came to a finely balanced judgment as to whether article 13 should or should not be omitted.
I should say that I am recommending that the Committee should not accept the amendment. I shall reflect on the arguments that have been advanced, because the point is needle fine--everybody is agreed on the objective; the question is merely one of how to achieve that objective. We have come to one judgment, but I would not for a moment suggest that that is because we on the Treasury Bench are possessed of better judgment on such matters than other right hon. and hon. Members, who have far greater experience of the law than I have.
My right hon. Friend the Member for Llanelli asked whether damages would ever be available. In paragraph 2.6 of the White Paper, we said:
Mr. Straw:
We might have been overworrying, but we did worry about the matter. My right hon. Friend was a Treasury Minister, so he will know that there is always concern about the financial effects of Bills, and quite right too. It is far more difficult to predict the financial effect of this Bill than of almost any other Bill coming before the House, because we are charting new waters and do not know exactly how it will develop. Our concern was to ensure that the courts applied themselves to the jurisprudence of the convention and that they did not, for example, develop awards of damages that exceeded the convention. It was for that reason that we took the view that the best way of applying article 13 in the context of incorporating the convention was to spell out in specific clauses how those remedies should be made available. Therefore, we take from article 13 that
The hon. Member for Beaconsfield (Mr. Grieve) is to some extent right to say that the argument is about semantics and that it is probable that, at the end of the day, we shall have been arguing about a distinction without a difference. On balance, we came to the view that it was better and created more certainty to omit the precise text of article 13 from the Bill, but to apply it in the ways set out, not only in the clauses that provide for remedies, but through the force of clause 2. As I said, it is a finely balanced judgment.
Sir Nicholas Lyell:
I am most grateful to the Home Secretary for giving way, because it gives me the opportunity to put to him the key point that is in my mind when deciding whether to withdraw the amendment.
I seek clarity in legislation. The Home Secretary invites me to withdraw the amendment that would insert article 13 into the Bill and I am minded to withdraw it, but I do not think that Parliament or the country should be left with article 13 having been kept out of the Bill--quite expressly, because the Committee has discussed it and I have withdrawn the amendment--but, at some later date, it being said to be effectively within the Bill because of things that Ministers said in the course of the debate. If the right hon. Gentleman can give me the assurance that we are legislating by black-letter law on the face on the Bill and not by what one can cull from the pages of Hansard, I shall feel much happier about withdrawing the amendment.
Mr. Straw:
As far as I am concerned, we are indeed legislating by black-letter law on the face of the Bill.
"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."
20 May 1998 : Column 987
The right hon. Member for Llanelli (Mr. Davies) asked about the jurisprudence on the word "effective" and we could sit here all night discussing what "effective" means, but I should like to bring the Home Secretary home--if I may use that expression--to clause 8(4), which deals with the way in which a court should determine whether to award damages. It states that, in doing so,
"the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41".
One can revolve around that for ever, but marry it up with the words "effective remedy" and envisage a case in which a citizen wishes to recover damages from a Government institution--in this country, the Crown.
"In some cases, the right course may be for the decision of the public authority in the particular case to be quashed. In other cases, the only appropriate remedy may be an award of damages."
The White Paper went on to make the point that the hon. and learned Member for Harborough (Mr. Garnier) made, which is that in considering an award of damages on conventional grounds, the courts are to take account of the principles applied, not so much by the convention, but by the European Court of Human Rights. In that way, people will be able to receive compensation from a
domestic court equivalent to that which they would have received in Strasbourg. My right hon. Friend will know from the explanatory and financial memorandum to the Bill, on page iii, that the awards at Strasbourg
"tend to range from £5,000 to £15,000 and are not made simply because the Court finds a violation of the Convention."
Mr. Denzil Davies:
I understand that, but it was my right hon. Friend who, quite properly, muttered about the public purse. What has the public purse got to do with the incorporation of article 13 if all those damages can be issued anyway? My impression is that he was saying that the Government were worried that, if they put article 13 in the Bill, it would cost far more money. My question is, how?
"Everyone whose rights and freedoms . . . are violated shall have an effective remedy"
and then set out in the Bill what those effective remedies should be and how they can be accessed.
| Next Section
| Index | Home Page |