Standing Committee E
Thursday 29 April 1999
(Morning)
[Mr. Peter Atkinson in the Chair]
Clause 1
Principles applicable to Part I
Amendment proposed [27 April]: No. 17, in page 1, line 15, after `of', insert
`racial grounds, gender, sexual orientation, or'. [Mr. Garnier.]
10.30 am
Question again proposed, That the amendment be made.
The Chairman: I remind the Committee that with this we are taking the following: Amendment No. 18, in page 2, line 4, at end insert
`(d) that persons obtaining access to legal services under this Part shall have the widest possible choice of provider or services'.
Clause 1 stand part.
Government amendments Nos. 3 to 6.
In addition to that grouping, we are now considering the following amendments: No. 60, in clause 5, page 4, line 16, after `provided', insert
`and in compliance with the objectives set out in subsection (1B) above'.
No. 61, in clause 5, page 3, line 41, at end insert
`(1A) Every person exercising functions in connection with the Community Legal Service must act, so far as possible, in a way which is compatible with the objectives set out in subsection (1B)
(1B) The objectives are
(a) that persons have access to legal services and the machinery of justice which they would otherwise be unable to obtain on accounts of their means;
(b) that such access is not to be impaired on account of racial grounds, gender, sexual orientation or disability (within the meaning of the Disability Discrimination Act 1995) or the place in England and Wales where any legal services are sought;
(c) that legal services facilities of high quality be available so that such disputes may be resolved, and proceeding determined, expeditiously, fairly and with the parties placed on an equal footing.
(d) that persons obtaining access to legal services under this Part shall have the widest possible choice of provider or services.'.
No. 63, in clause 6, page 5, line 3, at end insert
`and the objectives set out in section 5(1B)'.
No. 64, in clause 6, page 5, line 12, after `shall', insert
`comply with the objectives set out in section 5(1B) above and'.
Mr. Dominic Grieve (Beaconsfield): I am grateful for the opportunity to take part in the debate. On Tuesday, I suggested that the European convention on human rights, which was incorporated into the Human Rights Act 1998, might be considered in trying to follow its thrust and incorporating it into the Bill. I was struck by the Minister's reply that he was slightly surprised by my observation. He thought that I should know full well that once the convention is brought fully into force it will bind all public bodies. He therefore took the view I paraphrase slightly that my appeal constituted simply an appeal for a restatement of existing and well-established law and was therefore wholly unnecessary.
That struck me as rather surprising. As the Minister knows, we spent a great deal of time last year considering the Human Rights Bill, as it then was, which many Conservative Members did not favour for constitutional reasons. Although I did, one of the things that struck me during the debate was the extent to which some of the implications of incorporation did not seem to have completely sunk in as far as the Government were concerned. Indeed, I sometimes think that they are only now beginning to sink in, as evidenced by the fact that, although we have now incorporated the convention into law, the starting date on which it will be possible to bring cases to court claiming breach of the Act keeps disappearing further and further into the mists of the future. The convention seems to present some genuine challenges that are not tackled in the Bill.
I remind the Committee of article 6 of the European convention on human rights, now incorporated into our law by virtue of the Human Rights Act 1998. Article 6.1 states:
"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded" .
The convention contains further details, which I shall not repeat. Article 6.2 states:
"Everyone charged with a criminal offence shall be presumed innocent until proved guilty" .
Article 6.3, which is especially pertinent, states:
"Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence"
and this is especially pertinent
"(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require"
.
That does not stand on its own, but has been the subject of considerable judicial interpretation by the European Court, especially in the case of Airey v. Ireland in 1979 when the Court held that in certain cases "Article 6(1)"
I note that it is article 6.1 and not 6.3, which refers specifically to criminal cases
"may sometimes compel the State to provide the assistance of a lawyer when such assistance proves indispensable for an effective access to a court either because legal representation is rendered compulsory, as is done by the domestic laws of certain Contracting States for various types of litigation, or by reason of the complexity of the procedure or of the case."
One has only to read the Bill to see some strict definitions about the categories for which legal aid will be available. Legal aid is confined to the employment appeals tribunal, the mental health review tribunal and the ordinary courts. That leaves aside the categories of litigation from which, as we will discuss later, it will be excluded.
Before coming to the House of Commons I practised a great deal in industrial and employment tribunals, from which legal aid has hitherto been completely excluded. I seemed to cut my teeth in the early 1990s doing virtually nothing but sex discrimination cases. Those do not qualify for legal aid, yet the awards and scope of industrial tribunals have widened enormously over the past eight to 10 years. Previously such tribunals gave people a pat on the head and a few thousand pounds in their pockets, but I discovered when I represented the interests of the Ministry of Defence in sex discrimination cases that some of the awards being made against it for unfair dismissal on pregnancy amounted to hundreds of thousands of pounds.
For me, that flags up the question as to how the Bill's exclusion of legal aid per se from such tribunals as a matter of principle is compatible with the moves taken by the Government over the past 18 months to incorporate the European convention on human rights into English Law.
The Minister of State, Lord Chancellor's Department (Mr. Geoffrey Hoon): Did the hon. Gentleman advance that argument at any stage during the lifetime of the previous Government, and does he accept that he legal principles are the same whether or not the convention has been incorporated? Had there been a requirement under the convention to provide legal aid for employment tribunals, that would have bound the previous Government as much as it binds this Government.
Mr. Grieve: The Minister is right to say that the previous Government were equally bound, in so far as a case could have been taken by the convention so far as Strasbourg rather than through out domestic courts. The Minister will know after all, he is the Minister in the Lord Chancellor's Department that when the Human Rights Act 1998 finally gets up and running and offers the scope to bring the convention before domestic courts, this country's judiciary expect a plethora of applications in an initial period of three or four years. Due to the scale of people's knowledge of the convention, there are likely to be many more cases in which people invoke it. That is the direct result of the Government's ow action, and I presume it was desired.
Mr. David Kidney (Stafford): Is article 6 not described as the British article, not only because British lawyers drafted it in 1949 but because it embodies British traditions of justice and fair play? However great the plethora of cases is, will not judges be well placed to apply the same traditional values that they have applied for hundreds of years?
Mr. Grieve: The hon. Gentleman makes a reasonable point, but it is worth bearing in mind that, when the article was drafted, an accused appearing in a criminal case in the Crown court or as it then would have been, the Assize who was poor was likely to have been given a dock brief to be represented by one of a group of barristers sitting at the back of the court, who would have been appointed to represent the accused half an hour before the case was due to come on. That is how many barristers in the later 1940s and early 1950s started their careers at the Bar.
If that system of dock briefs still existed, today, it would be unlikely to pass the security of article 6 of the European convention on human rights as it is applied by the European Court of Human Rights. The convention evolves as societal changes take place. Decisions on the application of the convention that were taken in the 1950s are not the same as decisions taken in the 1990s. Tremendous changes have taken place between the 1950s and the 1990s in how the convention is applied for instance, on rights for minorities and the recognition of rights for gay people. The hon. Member for Stafford (Mr. Kidney) has not make a particularly good point.
The question that we have to address, which goes to the heart of clause 1, is that those changes, particularly the incorporation of the convention, is whether some general principles should be included at the start of the Bill to provide a framework for its application. If the Bill's application is challenged because it breaches human rights, the Government will be in a weak position if it contains no framework. Treasury Counsel may be appointed, but the Bill will be considered on a case-by-case basis; instead the Government should say at the outset that the Bill conforms with the convention and tries to do whatever is reasonable and possible to apply convention rights.
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