Page 3286 - Week 09 - Tuesday, 19 August 2008
seen to be done. Allowing public access to courts prevents the potential for abuse of power behind closed doors. Any provision which considers the possibility of closing a court should begin from the principle that the court should be open unless there is a strong public policy reason to the contrary. The exceptions to the open court rule in the bill have been drafted consistently with the right to fair trial provision in the Human Rights Act and allow sufficient scope for the closure of the court where the right to a public hearing is outweighed by competing interests.
The committee has also commented on clause 42, which empowers presidential members to issue a warrant requiring a subpoenaed person to be brought to the tribunal to give evidence vital to the hearing of a matter. The committee considers that I should provide an explanation as to why the government considers that clause 42 is human rights compliant, and I am pleased to do so. It is necessary to ensure that witnesses vital to a hearing are compelled to attend the tribunal to avoid unnecessary delays and additional costs to the parties.
Accordingly, clause 42 creates a limited power to issue a warrant requiring a subpoenaed person to be brought before the tribunal; this balances the right to liberty and security of a person against the tribunal’s fundamental object of resolving matters brought before it as quickly as is consistent with achieving justice. The first check on this power is that the order may be made only by a presidential member, whose independence is ensured because he or she may be removed from office only by way of a judicial commission. Secondly, the warrant may be issued only where the tribunal has taken reasonable steps to contact the person and the issue of the warrant is in the interests of justice. This step ensures that the presidential member will carefully consider and balance the competing rights in each individual case.
Finally, clause 43 sets out stringent procedures for the police officers who execute the warrant. The procedures include that an officer must release the person if the officer reasonably believes that the person cannot be immediately brought before a presidential member. This procedural requirement ensures that a person subject to a warrant will not be detained for any longer than is necessary to bring the person to the tribunal to give the subpoenaed evidence.
These checks and balances ensure that clauses 42 and 43 comply with the right to liberty and security of a person contained in the Human Rights Act. The power to issue the warrant is clearly not arbitrary, as it may be exercised only where it is in the interests of justice, which are clearly defined in the clause, and at most will result in a person being detained for a very short period of time.
The committee considers that there should be some explanation of why the usual rule in civil matters that the loser pays does not apply in the civil dispute jurisdiction of the tribunal. The cost policy in the bill starts from a user-pays principle but allows for adjustment depending on the circumstances. I note that clauses 48 and 49 are wide in their application, allowing the tribunal to award costs in a variety of circumstances, including where the tribunal finds in favour of the party where a party causes unreasonable delay and where a party contravenes an order.
Finally, the committee has requested justification for inclusion of provisions allowing a minister to issue a non-disclosure certificate. The right of a minister to issue a