I am very grateful to the noble Baroness for spelling out so clearly and concisely the purpose of the remedial order. I am as much here on a Thursday evening to learn, as I often am in the House of Lords, as to contribute, but I think that we have to be much clearer about what we are doing.
I am in favour of the reinterpretation of Article 5(5) —that is what the remedial order does—and the ability to provide redress when mistakes are made in the form of the kind of award we are discussing tonight. However, we should not be under any illusion that we are maintaining judicial immunity. There will undoubtedly be drift in how this remedial order is subsequently interpreted regarding the extension of the Human Rights Act. It raises also the issue of the incorporation of the ECHR into the Human Rights Act back in 1998 and what was anticipated at the time.
In addition, although I am not concerned about Henry VIII powers in this particular instance, it raises the question of whether this should have been part of primary legislation rather than an adjustment through a remedial order to the primary legislation. While it is perfectly reasonable to provide compensation in the individual case that was taken through the European court, other interpretations of mistakes made—inadvertently and therefore not deliberately—will undoubtedly arise. I am not entirely clear how judicial immunity is maintained in those circumstances, not least because anyone who has spent any time reviewing how judicial oversight of the court system itself works will note that very often it does not work well. Failure to provide counsel in this particular instance is just one of many mistakes that inadvertently might lead to an injustice.
Tonight, therefore, in approving the remedial order, I think that we should be much more open to understanding the likely implications down the line.
6.27 pm