Joint Committee on Statutory Instruments Minutes of Evidence

Examination of Witnesses (Questions 1 - 19)




  1.  Home Secretary, welcome to this meeting of the Joint Committee on Human Rights. As you will know, we have had one public session already when the Minister of State, Mr Charles Clarke, came to give evidence to us on the Criminal Justice and Police Bill. It is a pleasure to welcome you mainly of course because you are the Secretary of State with prime responsibility for human rights within the United Kingdom and for implementation within government departments. There are those of us who are very proud of the fact that the government has moved on to a human rights culture which is extremely important for a multicultural, multiethnic age. How successful do you think the process of implementation in Whitehall was?

  (Mr Straw) I am delighted to be here. I am delighted to see this Committee finally established and I too am very proud of the Act and the developments which follow from that of a human rights culture, not only in Whitehall but across the citizenship of the United Kingdom. As one who, with a number of others including some sitting around the table, feels a certain sense of shared parentage of this exercise, my pride is doubled. How successful do I think implementation of the Act has been across Whitehall? I think that so far it has been good and better than we hoped. A huge amount of work was done in preparing the White Paper and the Bill and that work went back to the period of opposition when we worked collaboratively with the Liberal Democrats and Lord Lester played a leading role in that work, as he had done in proselytising the cause for many years. The human rights policy or my policy and that of the Liberal Democrats was one, certainly for my party, where we had devoted greater attention to the details of how this should be implemented than almost any other similar area, so we were not launching from a standing start. That very greatly helped the preparation in Whitehall during the election period and the thought then. All the time that we were putting the White Paper and the Bill together, we had an eye on how this would be implemented because we were very well aware that what we were launching was not a single event but a dynamic process. We were helped enormously by the establishment of the task force and we are very grateful indeed to all the non-governmental organisations who participated so fully in that. What we have set out to do is to mainstream the Human Rights Act so that it becomes embedded into the culture of government in this country and the culture of public authorities, rather than being seen as an offshoot. I think that is gradually working. We are obviously, in the Home Office, more sensitised to human rights issues than other departments, so we are probably further ahead, but we need to be.

  2.  What structures do you think are required to secure a human rights culture within government long term? Given that the human rights task force will complete its work in April, whose job will it be to promote that human rights culture to the public?
  (Mr Straw) The key force in government which has to concentrate the minds of everybody involved is the fact that the Act is now law and decisions of public authorities are subject to the Act. People can either see it as a guiding light or, if they do not like that idea, they can see it as somewhat of a ghost about to tap them on the shoulder if they get things wrong. I prefer to see it as a guiding light, but the fact that your decisions or omissions are or can be the subject of judicial adjudication has to be the key driver and that is entirely right. In parenthesis, I worked in government as a special adviser for three and a half years between 1974 and 1979. It was different obviously from being a minister. I did not work in the Home Office; I worked in the Departments of Health, Social Security and Environment. There are those differences, but the most striking difference between now and then, even before the Human Rights Act became law, is the degree to which in submissions of all kinds ministers' attention is drawn to public law in a way in which it was not 25 years ago. It needs to be borne in mind that the implementation of the Human Rights Act on 2 October was not directly from a standing start. There had been a period of very intensive development over 20 years of public law, much greater traditional activism and too a much greater sensitisation across government about the effect of decisions of the European Court of Human Rights on the actions of governments. That is an important part of the background. We have the lead on structure. I am very pleased to say that we have some extremely good officials. Mark de Pulford runs the unit. I am very pleased to introduce him. His boss is Carolyn Sinclair, the director of that part of the Home Office, and they take the lead across Whitehall as evangelisers and proselytisers for the Human Rights Act, but also as individuals with their staff who calm people down. Before the Act came into force, there were a lot of stories around that it was going to paralyse government and all sorts of things like that. It has not happened. One of the ways to calm people down is to point out that the Convention has been incorporated into most of our European partners' constitutions one way or another ever since its inception and similar provisions are in the constitution of the United States and Commonwealth countries. Far from life stopping in this country, I think the quality of citizenship has increased.

Lord Lester of Herne Hill

  3.  We use the European Human Rights Convention in a way that most other countries use their own written constitutions. They have constitutional values they can call German or French or South African or Canadian or American. I wonder whether the Home Secretary agrees that the test of whether the Human Rights Act is going to work is whether we can, to use his own phrase, bring the rights home in the sense of weaving them into the normal fabric of our law and government and British values, not some kind of alien import. We cannot have our own British Bill of Rights because of the difficulty that politicians would never agree. Should it not be an objective of government and everyone else to enable the public to identify these as British values of civil and political rights?
  (Mr Straw) Yes. As Lord Lester has indicated, the phrase we use is that of bringing rights home. One of the points to which we all drew attention in arguing in favour of this change was that the Convention itself had been largely drawn up by British jurists. It was a classical statement of understanding of what British people have taken for granted as their rights in relation to the state. As Lord Lester has said, one of the consequences of the absence of an explicit written constitution in this country has in the past been that people's explicit sense of what their civic duties and responsibilities are is less well developed than it is in other countries. It is striking if you go to France that people will talk, in incidental language, about their civic duties. If I talk to ministers in France, particular articles of the French constitution will roll off their tongues and it is assumed not only that I know what they are talking about but that members of the French public will automatically know what they are talking about. I am optimistic about this process. As you will be aware, David Blunkett has agreed that citizenship should form a compulsory part of the national curriculum. This will be an important part of that national curriculum. I am struck too that more and more people at a local level are saying, "This affects my human rights." They less frequently say, "It affects my responsibilities", but you can engage them in an argument and a discussion about the two way street which was not there before.

Mr Miller

  4.  You said you were not launching from a standing start, but there was a delay of nearly two years between Royal Assent and the Act coming into force. Did that help or hinder departments and, if so, how and which departments?
  (Mr Straw) I think it was essential. It helped departments because, although it was not a standing start and the Home Office and a number of other departments involved in the field of justice were pretty sensitised to the Convention, we had to do a great deal of preparation to ensure that the introduction was smooth. We had to literally double the budget of the Judicial Studies Board to ensure that there was judicial training, not only for the hundreds of professional members of the judiciary but for 30,000 magistrates. They all had to have the training. Officials had to train other officials across Whitehall about what it meant, both in terms of what their obligations were under the Act, but also not suddenly to seize up and think they could not do anything because they read the opening paragraph of a number of the articles and not the qualifying paragraph, things like that. I am in no doubt that it was essential. If we had done it in a year or six months, the story would have been very different.

Mr Maclennan

  5.  You indicated the fears about clogging up the bureaucratic system had been dispelled by experience. Are you able similarly to dispel anxieties that were widely expressed prior to the enactment of the legislation about its impact upon the work of the courts, in particular, and are you able to give any indications about the projected impact on the work of the courts?
  (Mr Straw) The anxieties about clogging up the courts were neither expressed by the Lord Chancellor, the Attorney or me. There was a worry, not an anxiety, a concern, about precisely how it would be used, but in the event, whether they were anxieties or mere concerns, they have so far not come to be fulfilled. The information we have in terms of delays in the Crown Courts and Magistrates' Courts suggests that both sets of courts' cases are taking marginally less time now than they were last year. There is no overall evidence. In terms of the cases which have been decided by the courts at various levels, as you will be aware, they have taken what I would regard as a very straightforward view about the rights and responsibilities. You will be very familiar with the legal judgments which have been made, for example by Lord Bingham in Brown and by the Master of the Rolls, Lord Phillips, Lords Justices Kennedy and Dyson in the application of R V Manchester Crown Court, ex parte, Mc Cann, involving antisocial behaviour orders, but there are many others like that. The lesson of all that has taken place says to me it would have been a very good idea if incorporation had taken place in 1951 or very shortly after that because essentially there has been a catching up exercise. What the jurisprudence emerging from our own courts illustrates is the huge advantage there is in terms of the development of our own common law to have our own jurists making decisions upon this, ourselves benefiting from the margin of appreciation as well as being much better able to benefit from that, if and when a case goes to Strasbourg.

  6.  Although the original question from Mr Miller pointed to the time that had elapsed since the enactment, it has been a shorter time in Scotland and the earlier enactment there has already given rise to some changes or some challenges to the political appointment of certain members of the criminal justice system. I want to know if you have, as a result of that, had to look at any institutional arrangements within our own system which might be similarly called into question. When I say "ours", I mean in this context England and Wales; and secondly, whether it might be considered sensible to have within the core membership of the task force some representative of the Scottish legal system.
  (Mr Straw) Mark and his colleagues in his unit keep a running chart of important current cases and their outcomes. Plainly, in the Brown case, the courts in Scotland came to the judgment they did about the operation of section 172 of the Road Traffic Act. There was widespread consternation across the country, except I imagine from inveterate speeders. Of course we had to think about what steps would need to be taken if it was found by the judicial committee that section 172 was incompatible with the Human Rights Act. That applies to any other issue currently before the courts. In the event, in respect of Brown, the judicial committee came to a view that there was no breach of article six from section 172 so that was the end of the matter. There have been a number of Acts passed while I have been Home Secretary. The two most notable ones are the Terrorism Act 2000 and the Regulation of Investigatory Powers, which were partly brought onto the statute book in order to ensure that our provisions in that area of criminal law and process were compliant with the Act and the Convention. You will be aware that the task force's work directly has come to an end, but I am always open to suggestions about how we can increase collaboration with the Department of Justice in the Scottish Executive and I will certainly follow that up. I think Jim Wallace would say as much as me that collaboration between the two justice departments has been of a very high level.

Mr Thomas

  7.  Home Secretary, you have not exactly pulled your punches recently when expressing some pretty severe criticism of the legal profession, of which you and I are both members, incidentally. Do you think there is any evidence that the legal profession has exploited this Act so far in an entrepreneurial way?
  (Mr Straw) First, I always think it is sensible to follow the lesson of the parable of the beam and the mote. That was what I was doing. I will not be tempted down that byway on this occasion, if that is all right, except to say that I was not making an in depth comment on antisocial behaviour. It was a generalised comment about some lawyers. Lawyers are entrepreneurial. That is the truth. They are either single handed practitioners or they are involved in the uniquely British cooperatives which are known as chambers or they are partnerships, but they are all self-employed and part of their purpose is to ensure that they earn a crust at the end of the week. Practices are varied but what is pretty clear from the higher courts is that they are taking a pretty robust, common sense view of the Act and indeed the Convention. If I may refer you to what Lord Steyn said in Brown, "The fundamental rights of European liberal democracies are of supreme importance but those rights are not unlimited. We live in communities of individuals who also have rights", a sentiment which I would heartily applaud. You may recall Lord Clyde went on to say that the Convention is dealing with the realities of life and it is not to be applied in ways which run counter to reason and to common sense. In other parts, senior members of the judiciary have pointed out that the Convention is as much about the protection of communities and victims as it is about the proper protection of defendants' rights.

Lord Carlisle of Bucklow

  8.  With great respect, Home Secretary, I am not sure you have answered the question Gareth Thomas put to you. The duty of counsel surely in the end is to his client and therefore, if there are genuine points under the human rights legislation, he has a duty to take them. I think what you were being asked was have you in fact any evidence that that right is being abused.
  (Mr Straw) The duty of lawyers is to their client but both the code of the Bar Council and the equivalent requirements on solicitors also make clear that they have duties to the courts and to public interests. Solicitors are officers of the court. The Bar deals with that in a slightly different way, but there are plainly wider duties which members of the legal profession have and about which members of the profession are taught. I expressed concerns a few weeks ago and I stick by those concerns about the particular ways in which some defence lawyers operate. I had in mind particular cases but they were not directly related to the Human Rights Act. They were related to developments in the criminal law and practice over the last ten or fifteen years.

Baroness Prashar

  9.  Home Secretary, I want to talk to you about the Human Rights Task Force. You have already said that you found their work very valuable. I would like to know a little bit more about that but also to see whether you see a continuing role for it and, if so, in what form?
  (Mr Straw) It has been valuable. I am going to ask Mark to say more about it because, apart from one honourary attendance, I was not a member of the Task Force. It was chaired first of all by Gareth Williams and then by Mike O'Brien.
  (Mr de Pulford) From an official point of view we have found the Task Force extremely valuable. The particular areas I would draw attention to are guidance and training. There has been a great deal of guidance which the Home Office and Cabinet Office have issued which has been prepared in collaboration with particularly the NGOs on the Task Force who have been able to give us an external perspective and help us in enriching our understanding of the human rights culture and the kind of messages that it would be appropriate to deliver. They have also assisted directly in relation to publicity and putting a better balance on rebuttal, if I can put it that way, of stories that attended the Human Rights Act in the period before its commencement in October, and also in designing the press campaign which launched the Act, and an educational competition has covered it as well. As regards the continuing role, it is fair to say that there has as yet been no decision about precisely what form of collaboration or co-operation should continue but there is a clear understanding, certainly on the part of my unit, that it is necessary and should continue. Whether that takes the form of formal structures or informal structures I do not know; perhaps there should be an electronic task force; I am not sure, but a continuing need has certainly been accepted.

  10.  Would you see a change in its membership in the light of the question asked earlier?
  (Mr Straw) It is due to come to an end next month, so in a sense questions about change in membership do not arise. If meanwhile this Committee has been established, and I know this is not by definition an NGO but it has a similar function of constant monitoring, and if we were presented with a case for re-establishment of the Task Force, we will look at it, but in a sense it was always a time limited job which was to help with the preparation of the Act. That has been one of many reasons but a very important reason why so far the implementation has been successful.

Mr Browne

  11.  I am sorry I was late and if I ask a question that has already been asked just ignore me.
  (Mr Straw) Or a difficult one which has not been asked!

  12.  The second part of my question follows on from the last question you answered. A culture of rights and responsibilities may or may not be the same thing as a human rights culture, probably depending on whom you ask. It is more than just a question of compliance with the Act itself. Should it not be broad enough to encompass the array of human rights that we have signed up to, that is, the United Kingdom, and reflected in other conventions that we are parties to? The second part of the question is, if the Human Rights Task Force is to be wound up in April who is going to accept the responsibility for building this culture of rights and responsibilities or this human rights culture? Who is going to promote it?
  (Mr Straw) On the first question yes, obviously the generation of a culture of rights and responsibilities in the widest sense should certainly take account of the obligations to which we have signed up internationally. If you are asking me, Mr Browne, whether I think that every single one of the obligations to which we have signed up internationally should be incorporated into our domestic law, which essentially is what you are asking me, the answer is no. You will know the position which the Government took for example in respect of the EU Charter of Rights, and there are a number of other international conventions where, because of the language which is used in those conventions, which is so broad, it is the judgment of the Government that it would not be appropriate for us to sign up to those in that way. It has never been the case, far from it, that every single matter to which we have signed up is directly justiciable in our courts, and neither should it be, because the thing could be as it were enforced in other ways. Your second question was, if the Task Force is being wound up, who will have ownership of the generation of culture? All of us, is the answer to that because we are trying to broaden the responsibility for the development of this culture. Government has that responsibility and we are seeking to do that, as I said, by mainstreaming this, by saying to departments as a whole, Permanent Secretaries to Ministers, "You have got to get your brain round this. You have got to think what it means. It is not an intellectual ghetto which you may or may not make occasional excursions into. This is something that you must direct your attention to and think about all the time." Just as Lord Lester has referred to, that is the case in other countries with written constitutions. This Committee has a very important role, if I may suggest this. In a way, as I say, it takes over part of the role and practice of the Task Force and in addition to that the NGOs will, I know, remain very vocal on this and certainly if they come to us and say that things have gone off the boil and we need another push on this—I know they will do it—they will be pushing at an open door.

  13.  I think it is important and I agree with you that we need to build a consensus among the public for either a culture of rights and responsibilities or a culture of human rights. Do you think enough has been done to do that and does it not disturb you that in this Parliament during the passage of the Act there was a cross-party consensus built for a culture of human rights and a culture of rights and responsibilities but after the Act moved out of Parliament and became an Act of Parliament that consensus has begun to break down quite dramatically in some cases because there have been some comments made about the Act which are neither complimentary nor are they helpful, and some of them have been directly dismissive?
  (Mr Straw) I know this is a cliché but I genuinely thought that the way both Houses debated the Human Rights Bill was Parliament at its best. That is, if your Lordships understand me, more of a compliment to the Commons than to the Lords because the Lords is normally at its best in any event, but debates can be dreadful in the Commons. They were not. There was a real desire by everybody taking part in those debates to examine the issues and in some cases to seek change. The Government sought to respond to that by making it clear that not only were we listening but also we were willing to change and we did change the Bill in a number of important respects. What was frustrating about those debates, which were on a very important issue at a high level, was that scarcely a word was reported. The retreat of even the so-called serious press away from serious debate and into the tittle-tattle of politics has been very marked in the last 15 years, something to which I have devoted some time myself. People who were interested in the process by which this Bill had been developed could not access it in the newspapers: extraordinary. As to the position which parties have taken, the Liberal Democrats have taken a wholly consistent position on this and I am very grateful to them indeed. They were ahead of the idea of co-operation, certainly of my party. As to the Opposition, they voted against the Second Reading on qualified grounds. We changed the Bill to meet the concerns which were expressed by front and back benchers, particularly on the remedial orders and particularly in respect of provision for the churches and so on, and at the Third Reading Sir Nicholas Lyell, speaking from the Front Bench, made reference to these changes and said that the Opposition wished the Bill well. There was no division at Third Reading. I am aware of the remarks made by the Leader of the Opposition that they opposed the Bill. They do not entirely seem to me to fit with the facts and I also note that although they said they had opposed the Bill they had not yet committed themselves to repealing it. What I think, Mr Browne,—and I do not want to be too partisan here—is that the Leader of the Opposition was trying to place an each way bet upon every horse in the race. One of the horses was marked "Disaster", and if you put five bob on that one and if that was the one that came home, then he would claim that as his horse. On the other hand, if the one that said "Success" or "Qualified Success" came in, he would claim that as his horse as well, so I think that is what has been going on. It would not be the first time.

Mr Miller

  14.  Returning briefly to the Task Force and its potential successor body, are you satisfied that its work has sufficiently taken into account the whole of the country, and particularly I am always pleased that we have a Home Secretary that represents civilisation in the North West, but the regions of England have claimed to be under-represented in a lot of organisations.
  (Mr Straw) I think Lord Carlisle of Bucklow said something under his breath.

Lord Carlisle of Bucklow

  15.  I said that there were civilised Home Secretaries on both sides.
  (Mr Straw) I do not think he was calling me civilised. I think he just said I came from an area that was civilised. It is just a fact of life that non-governmental organisations are based in London principally because Government is based in London and one cannot complain about that. Ms Sinclair has very kindly told me that Scottish and Northern Ireland and Welsh representatives were on the Task Force. What I was going to say was that I do not think there has been, probably in terms of geography, a challenge in terms of getting the idea of a Human Rights Act permeated into some public authorities and public offices and getting an understanding from it. In some of them, the further you get from the centre (and I do not mean geographically further but just in terms of people's brains) the more difficult it is to get an understanding of the rights and responsibilities that go with it. Either people have no understanding or they may read the Convention and typically just read, say, the first paragraphs of the key articles and think that stops them from doing anything at all. It is a bit like data protection in the hands of people who have not read the evolutions, and then act as unqualified lawyers offering hack advice. We have got a job to do there. Thank you very much, but Mr de Pulford—you will see why he is held in such high esteem by the current Home Secretary—said I should mention the event at Blackburn Rovers.


  16.  How appropriate.
  (Mr Straw) The event at Blackburn Rovers earlier this year was one sponsored by one of the leading firms of solicitors in Leeds, Walker Morris, and it was a conference on human rights, at which I had to speak and which was attended by a very wide audience from across the north of England, very successfully, and people were very interested in it. It is a very good conference venue, by the way. I declare an interest as Honourary Vice President, unpaid.

Baroness Whitaker

  17.  Home Secretary, I would like to move from structures to citizens and ask you what difference you think the Act is going to make to ordinary people initially in the areas for which the Home Office is responsible. Perhaps in doing that you might want to define human rights culture a little more precisely.
  (Mr Straw) In terms of human rights culture the starting point is that unless checked the power of the state can be very oppressive. That is obviously true in dictatorships but it can also be true for some individuals and some sections of the community in countries which call themselves democratic. The potential for oppression is strong. The potential to justify improper means by reference to laudable ends is also very strong and that is in a sense the greatest temptation of government (with a small "g") in its wider sense as a sign of democracy. The development of the culture is partly about developing a sense inside government (again with a small "g") about those who have authority—we were talking about public authorities—on behalf of the public about the way in which they should exercise that authority and that when they justify acts which are coercive or which are seen as unacceptable by individuals by reference to the public interest they really do mean the wider public interest rather than simply their convenience or the convenience of government. It is trying to get that across at the same time as saying to citizens involved that this is a two-way street, that a properly functioning democracy can only operate if those who are invested with authority for the time being exercise that with very great care for the liberties of the individuals, but equally those who have the privilege of being citizens inside a democracy recognise their responsibilities to each other and to their common wheel. Having said that, I have forgotten your first question.

  18.  What difference is it going to make to ordinary people?
  (Mr Straw) The difference is that it sensitises the way public authorities operate. I said in my introductory remarks that I was struck by the way in which government have become more sensitive to the interests of the individuals through the development of the public law in the last 20 years. It is very striking. This is a further stage of that. There are plenty of individual examples as well where people have had to think about whether something they are planning to do is always compliant with the Human Rights Act. A very good example was the Football Disorder Act which we brought in quickly last summer to deal with a particular problem. We had to think very carefully about some parts of what we were going to do to satisfy ourselves, and for myself to satisfy myself, that it was compliant with section 19 and that has been a good thing from my point of view.

  19.  If I could follow that with a question about general public authorities, most people come into contact with the public authorities through the social services, education and health. As the mainstreamer of human rights how have you influenced the big public services departments to change their culture and is it working?
  (Mr Straw) It is working to a degree. I think it is fair to say that because of the nature of the justice departments' business—the Lord Chancellor's Office and the Home Office and some other cognate departments—we have necessarily been more alive to the human rights questions than other departments. Social security is another one where the entitlements are replete with detail of law. Those departments, like the four I have mentioned, are more sensitised. Other departments, Health and Education, and to some extent that part covered by the DETR umbrella, operate within a much looser enabling legal framework. It is enabling because of the nature of what they do. I think if you were to talk to my colleagues they would say that they were not less sensitive to the issues but less immersed in the detail than am I. If you take Health, Alan Milburn and I worked very closely on the changes in the mental health legislation and published a White Paper on mental health generally and alongside that we published jointly at the same time a White Paper dealing with those who suffer from severe personality disorders. Both sets of documents, which are companion to each other, were put together very much with human rights aspects in mind.

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