I strongly agree with the noble Lord, Lord Marks, that this a very clear example of it being for the UK legislature to decide, where there is an incompatibility, whether to change the law. It is not something that comes because of the European Court of Human Rights reaching that conclusion; it is because Parliament decides. I strongly endorse what he said in relation to that.
I strongly agree with the noble and learned Lord, Lord Mackay of Clashfern, the noble Lord, Lord Marks of Henley-on-Thames, and the Government that Section 10(1)(b) and Section 10(2) of the Human Rights Act, which refers to legislation that is incompatible, do not contain any reservation for the Human Rights Act itself and therefore, as a matter of construction of Section 10, it is possible to use the Section 10(2) power in order to amend the Human Rights Act itself. I too have read Professor Ekins’s suggestion that that is wrong. Honestly, I do not think there was anything at all in the points he was making, and I agree with everybody else’s point in relation to that.
I have two concerns. I was very glad to hear the noble Baroness say that the Government were very concerned about judicial immunity. If you are a judge and think that you might be sued because of a decision you make in good faith—we are dealing here only with decisions made in good faith—that might inhibit the
decision you reach. The noble Lord, Lord Thomas of Gresford, made it pretty clear that a judge could, himself or herself—or themselves, if it is the Court of Appeal or the Supreme Court—be sued in relation to this. I would be very grateful to hear what reassurance the noble Baroness can give. She said that judges would be “properly protected” and so it would be very difficult to sue them in their own names, and that there would be no question but that—assuming that they had acted in good faith, because that is the only circumstance in which this applies—they would be indemnified if they were sued in person. Any reassurance the noble Baroness can give in that respect is very important.
The second issue I would like to raise is this. My understanding is that the reason judgment was found against the United Kingdom in Hammerton v United Kingdom is that the consequence of the judge not according Mr Hammerton legal representation was, as the High Court of England and Wales found, that he spent more time in jail for contempt than he otherwise would have. No appeal putting it right can compensate someone for spending time in jail when they should not have.
The one area where I would be interested to know what the Government say is what happens when a court order leads to the disclosure of information that might be in breach of Article 8—where information that should be kept private as a matter of Article 8 is then made public as a result of a court order, but, if we assume that the court order is then reversed in the Court of Appeal, the information has been made public as the result of a judicial act. What do the Government say is the position in relation to that? Assuming that the judge of the court has acted in good faith in the circumstances I posit, is that something in respect of which there would be no remedy at the moment? Is that something the Government are looking at, or is there some effective remedy under Article 13, and therefore one would not need to worry about it?