European Court of Human Rights: Rule 39

Debate between Lord Anderson of Ipswich and Lord Bellamy

Tuesday 6th June 2023 Lords Chamber

[Lord Bellamy (Con)]

My Lords, I have already agreed on Russia. I emphasise that the Government’s approach to this is to engage very closely, respectfully and constructively with the Strasbourg authorities and the court’s working party, which is considering this very question.

[Lord Anderson of Ipswich (CB)]

My Lords, does the Minister agree that interpretation of a treaty is informed not just by the court that is set up to adjudicate on it, but by state practice? The member Governments of the Council of Europe, including our own, have repeatedly confirmed the binding nature of interim measures under Rule 39—in the Committee of Ministers, and in the Izmir and Brighton declarations. Is the Minister proud of the United Kingdom’s record of compliance with interim measures, particularly in comparison to some founding members of the European Union?

[Lord Bellamy (Con)]

On the latter point, I do not presume to cast any kind of judgment on or make any comparison between the United Kingdom and other contracting states. On the general point about acceptance in practice of the position of interim measures under the convention, there are two legal views.

National Security Bill

Debate between Lord Anderson of Ipswich and Lord Bellamy

Committee stage
Wednesday 18th January 2023 Lords Chamber

[Lord Bellamy (Con)]

I will further reflect on the question, but it seems to the Government that that specific example is unlikely to bite, as it were, on the duty of the court in the particular circumstances that we are considering, because ultimately it is up to the court to consider whether a reduction of damages is appropriate. If it were the case that, technically speaking, you could argue that national security proceedings on the face of the statute were in some way involved because there had been an earlier discovery application but it had no material impact on the remainder of the case, one could reasonably assume, and the Government do assume, that the court would not proceed to reduce damages on the basis of something that had nothing to do with the real issues.

We will always reflect and consider further, because it is very important to get the drafting right, but at the moment the Government are unconvinced that this amendment is necessary and believe that the protections, and in particular the role of the court, are sufficient to deal with the concern that the noble Lord, Lord Marks, has raised. That, I think, is the answer to Amendment 105A.

[Lord Anderson of Ipswich (CB)]

The Minister rightly emphasises the very high degree of discretion that is given to judges under Clause 83. The core of it is Clause 83(5), which allows a judge to take a view on whether it is “appropriate” for the amount of damages to be reduced. I wonder what the Minister thinks of the point that to give judges such a wide discretion is perhaps to give them a poisoned chalice. Judges did not, so far as I know, ask for this power. Does the Minister agree that they could be strongly criticised were they to fail to exercise the power to reduce damages, even in cases where it would be consistent with normal legal principles, including the principle of fairness, not to reduce them?

[Lord Bellamy (Con)]

The question asked by the noble Lord, Lord Anderson, highlights the tension I referred to a moment ago. It is very difficult to say on the one hand, as is being said, that the courts have this power already and that they are perfectly capable of exercising it, whether under the 1945 Act or ex turpi causa, et cetera, and on the other hand to say that it puts them in a difficult position and that they will be criticised if they do not exercise it. I think I can say this: the overall intention of this legislation is not to alter or downgrade a principle of law that is already inherent in the common law and in our various jurisdictions; the purpose is to spell out that principle in this legislation so that no one has any doubt that it applies in terrorist cases. That is the main purpose of this clause. We are, to an extent, simply reflecting where we are, but clarifying where we are.