Joint Committee On Human Rights Minutes of Evidence

Examination of witnesses (Questions 60-76)



Baroness Whitaker

  60. I wonder if the Attorney would agree that it would be consistent with the culture of magistrates having to give a reasoned opinion, officials to be aware of that very excellent publication, "The Judge Over Your Shoulder"—they too have to give reasons for their decisions—for the third leg of our government, the executive, also to be able to give the reasons for compatibility. It seems to me a little unusual for him not to.
  (Lord Williams of Mostyn) I do not think so. I see the superficial attraction of that but the magistrates are coming to a discrete conclusion on a limited area, where you can give reasons. If you have a vast Bill, the explanation for compatibility is going to be as big as the Bill because you are going to have to go through every dot and comma. It seems to me that what one wants is the ability to have an explanation. The ability to have an explanation is determined in the magistrates' courts by the requirement of Article 6. The ability to have an explanation here, as the Lord Chancellor says, is that if the questions are put they are either put by this Committee, which will have a developing role, I am sure, or they will be put specifically in the context of a particular part of a particular Bill, like for instance the International Criminal Court where people will ask about particular questions.
  (Lord Irvine of Lairg) I do not have a closed mind on this. I think this is a very interesting area. My initial reaction is to say, no doubt rather boringly to the Committee, that the suggestion seems to put the burden in the wrong place. If a minister in good conscience gives the thorough consideration that I know is given to compatibility, surely those who have a particular reason, maybe in relation to a particular, narrow part of a Bill, for thinking that it is not compatible, surely the burden is on that individual to make that point and then it can be thoroughly looked at in Parliament, where it belongs. I am not by any manner of means closing my mind—and it would not be for me to do so anyway—to a larger jurisdiction for this Committee in this area, but I felt that I should express that view in any event before we moved on.

Lord Goldsmith

  61. I wanted to follow that a little because the experience we have had so far, with one Bill looked at in detail, may indicate that it is not quite so difficult. I happen to have had the same view that you have both just indicated now about the difficulty of doing it. One reason for that is that sometimes it is clear to a department that a particular section prima facie affects a particular Convention right, freedom of expression or freedom of association, whatever it may be. The real point is not that. The real point is what is the present social need? What is the public interest which is to be balanced against what may be a limited apparent infringement of that right. i wonder whether having that explained may not sometimes be easier than what does sometimes happen in Parliament, which is not a very focused debate on what is the issue in relation to a particular section.
  (Lord Irvine of Lairg) I have to say that I think that is an interesting idea. If there was some issue in a particular Bill which really leapt to the eye as having a controversial implication for a particular Convention right, I dare say as we think about this further a possibility might be in the explanatory memorandum to say something more than might otherwise be said on this subject. Yes, it is a possibility.
  (Lord Williams of Mostyn) Conventionally, some of these issues are set out at Second Reading when the minister introduces the Bill.

  Chairman: The Committee, probably each of us individually, had some concern about the child curfew orders in the Criminal Justice and Police Bill. We had a memorandum on the Bill from the Home Office. This was one of the issues we raised. On reading, from memory, paragraphs 34 to 53 of the Home Office memorandum which dealt with this issue, we found what the Home Office had to say very persuasive. It was an extremely useful exercise and one that perhaps we would want at some stage to commend.

Lord Lester of Herne Hill

  62. I wonder if I could bring together the concerns, as I see them, of the Committee. What we are searching for is a practical system that will not lead to endless adversarial confrontations but simply a good way of doing what the Lord Chancellor described in I thought a very good phrase as a cooperative endeavour across the three branches of government. Parliament is bound by the Convention, just as the government and the courts are, but Parliament does not have access to legal advice in the way that the government does through the Attorney General. Parliament depends upon a statement of compatibility and the reasons that are then given which must not include legal, professional privilege unless that is waived. It seems to me that it ought to be perfectly possible in a well ordered administration, which we have, without any extra work being done, for the officials who advise ministers as to why the Bill is compatible to be able to do a summary of that and to provide it on a routine basis, the same with affirmative resolution procedure on the support of legislation, which is another matter that the Attorney General Dealt with in a very interesting and important way. Then I think our Committee, or for that matter any parliamentarian if they have points they wish to raise, of course will go on doing that, but the vice of the present system is that it is so random. If I get up in the House of Lords and ask a point, Lord Williams of Mostyn, as the Minister of State for the Home Office, gives me a very reasoned account. When Lord Campbell of Alloway on another famous case had got up and asked a series of questions, the poor man got absolutely nowhere at the time. I am not criticising the minister; I forget who it was even, but it is no good having it depend on individual, especially lawyer MPs or peers, raising questions and then the minister responding in the course of the debate. We just want a good, practical system.
  (Lord Williams of Mostyn) One possibility is to have an increased focus on relevant occasions on prelegislative scrutiny, not for every Bill but for the Bills that might be chosen. That is a capable of being a way forward.

  Sir Patrick Cormack: Many people would like to see that.

  Chairman: It may be possible for a different kind of use or expanded use to be made of the explanatory notes which would give a broad outline of the principal aspects of the Bill which give rise to discussions about compatibility, identifying what the issues were and perhaps the case law which informed the final view on compatibility. It seems to me that there could be a role here for explanatory notes.

Sir Patrick Cormack

  63. Taking up the point that you made that you made a second ago, Attorney, would there be something to be said for the Standing Committee having to establish to its own satisfaction that the declaration of compatibility was indeed absolutely acceptable before proceeding to any consideration of the Bill?
  (Lord Williams of Mostyn) I would certainly like to look at that. One has to be fairly discreet about the Bills one is looking at; otherwise we would all get bogged down and, horror of all horrors, there would not be any new legislation which of course would be dreadful.
  (Lord Irvine of Lairg) It really is a question of getting the process at the parliamentary level sufficient and not excessive. The government must get its legislation through. Everybody agrees with that. The long-stop of legislation that is not compatible is the courts. You cannot put something in Parliament which is equivalent in thoroughness to a court's determination whether a particular provision of a Bill is compatible or not. It is a search for balance here.

Lord Lester of Herne Hill

  64. I have to ask the neuralgic question about the role of the Lord Chancellor and the Law Lords and Article 6 of the Convention. I suppose the simplest way of putting it is like this: the Royal Commission on House of Lords Reform made proposals. The Law Lords, in a very important statement of 22 June, made clear the need to separate legislative from judicial functions in the case of the Law Lords. Would I be right in thinking that the position is that the Lord Chancellor and his fellow Law Lords consider their own position case by case but, in view of the multiple functions of the Lord Chancellor, he has made it clear that, for example, in constitutional and human rights cases, he would be emphasising, in the way that he decided whether to sit in the case, the importance of Article 6 and the apparent as well as subjective absence of bias, where government might be directly or indirectly involved?
  (Lord Irvine of Lairg) I have resolutely declined, and I do on this occasion decline, to define any category of cases in which always and in all circumstances it would be inappropriate for a Lord Chancellor to sit. What I think is very important to remember about Article 6 is that it does not prescribe a particular constitutional arrangement for any country that subscribes to the Convention. The decision in relation to the Bailiff of Guernsey made it absolutely plain that the effect of Article 6 is to guarantee individuals a fair trial and not to prescribe for any country party to the Convention what its constitutional arrangements should be. I would always address in relation to a decision, whether it is to sit on a particular appeal, whether to do so might breach Article 6. There is a huge range of litigation in the House of Lords which does not conceivably affect the interests of the executive. I have no doubt at all that I would be able to abstain from sitting in cases which might give rise to Article 6 concerns, and I have no doubt if I was minded to sit in one which others thought would my fellow Law Lords would be the first to say so. I do not see any difficulty at all in selecting appropriate cases.

  65. I am very grateful. Other members of the Committee might not be aware of this, so far as the Law Lords are concerned, am I right in saying, they have made a statement making it clear that they will not be exercising judicial function in respect of matters where they have entered the political arena as legislators? That is a rather crude way of summarising it.
  (Lord Irvine of Lairg) There was a Parliamentary statement made by Lord Bingham, and it was followed by a Parliamentary question and Parliamentary answer by me, it is there in Hansard, on the record, and it sets out the position.

Mr Browne

  66. I have a specific question which arises from that point and I have two which arise from the memorandum from the Attorney General. If I may first draw your attention to paragraph 2.3 of your memorandum which says, "The Act has also actively contributed to raise the awareness amongst CPS prosecutors of the rights of victims and witnesses. Prosecutors are using a Convention to highlight the scope of the rights of victims and witnesses in the criminal process and how and to what extent these and the rights of society as a whole have to be balanced against the rights of the accused". What has been the practical effects of that raised awareness? Can you give us examples of how it operates?
  (Lord Williams of Mostyn) I personally prosecuted and defended at the criminal bar for quite a long time. I felt a constant sense of reproach about the way we dealt with victims and witnesses, they were almost regarded, and still are in part, as optional extras. Without the complainers there can be no trial. They are not the only rights, but I do think their rights have been inadequately thought about, let alone considered in practice. The Lord Chancellor, the Home Secretary and I were of one opinion on this, from April 2001 there will be a much better service for victims in the control of the Crown Prosecution Service. They will be entitled to have a letter of explanation where the CPS has made a decision to alter or withdraw charges and the opportunity in certain serious cases of having a face-to-face interview to have such a decision explained. That is extremely resource incentive, and I do not mean cash, it is very, very difficult to have to do that job of human explanation to someone who is in distressed circumstances. We have run it out in seven pilot areas. We will do it. The instructions have gone out that the Crown Prosecution have to do it and we will have the resource. It is not an easy job. I go to the Crown Prosecution Service headquarters most weeks and the Solicitor, I know, has been to every area at least once. It is a marvellous idea and we will push it forward. One tiny example, if I can be tedious for a moment, a girl of 16 comes home and tells her father that she has been raped. She is then interviewed properly, discretely and in a dignified and decent way by a woman detective constable who is trained and she says half way through, "It was not rape actually, I thought I was pregnant". If anyone can help me to explain why we discontinue that case to the father I would be a very happy man indeed. So it is quite difficult. The truth is they are entitled to know, it is a right, and that is what we will be providing, not least, I think, because we hope to have the Victim's Charter finalised, after consultation, by November of this year. We do not deal with victims and witnesses properly.

Mr Miller

  67. In that definition of victims do you include the victim's family, particularly in the context of a death on the road?
  (Lord Williams of Mostyn) Undoubtedly. We have been very, very bad at that, and I think that it is noticeable recently that sentences for causing death by dangerous driving are indicating, first of all, what Parliament said, in doubling the penalty from 5 to 10 years, and that is starting to filter through; secondly, that people in those circumstances do not regard them as road accidents, they regard them as someone having caused the death of someone who is close to them.

  68. As a patron of road peace I welcome that statement.
  (Lord Williams of Mostyn) We have not done it properly. It means endless work, it means people doing different jobs. We were quite certain, the Chancellor, the Home Secretary and I, that it should be the Crown Prosecution Service, so that it can be monitored. As you know, there is now an independent inspectorate of the Crown Prosecution Service and it is one of the aspects of the CPS work that he can look at at any time, either on a thematic basis nationwide or on a particular area of inspection. This is a complete transformation of the way we deal with victims and witnesses. The witness, once alienated, will never be a witness the next time round.


  69. Mr Attorney, you undertook, I gather, in response to the Lords Delegated Powers Committee the Government would make a convention and compatibility statement in respect of affirmative statutory instruments. What has been the effect of this undertaking?
  (Lord Williams of Mostyn) May I read out what I have here?

  70. Yes.
  (Lord Williams of Mostyn) "Apparently you did say this when in the Home Office", in answer to Lord Lester, if I remember rightly. We will be perfectly content to do that. I think that the Home Secretary gave evidence to the Committee and gave an illustration, in the transcript at page 27, for instance, on one of the Prevention of Terrorism Orders of 2001, which actually did contain that statement. As far as I am concerned, and colleagues are concerned, we wish to have the matter upon us and we will discharge the duties that we have offered to.

  71. Finally, Lord Chancellor, in public speeches about the Act both you and the Home Secretary have stressed that the Convention rights are not founded on unbridled individualism. You have said that the wider interests of society are also important. Does this approach risk obscuring the important fact that Convention rights are just that, they are individual rights and they are only to be limited where restriction is permitted under the Convention, and then only when it is a pressing social need? Is there not a danger that the presumption in favour of the right would be lost, which would potentially undermine the development of the human rights culture, particularly in Government?
  (Lord Irvine of Lairg) I have not intended in the expressions I have used to distract attention away from the precise language of the Convention, which is what has to be interpreted. It is always a danger if you use a different form of words from the words of the Convention that people will say you are giving the wrong impression. I certainly have not intended to depart in any way from the language of the Convention or the need for the courts to interpret that language and apply it to the facts of the case. But, for example, it is correct that there is a balancing of interests involved and I think people find it quite reassuring to know that rights are not absolute but have to be balanced by social considerations. In a recent case, for example, in relation to offences committed on a housing estate the effects of the conduct complained of upon the law abiding majority had to be taken into account under the Convention. In a recent case when the Scottish courts were not upheld by the Privy Council in relation to disclosing who was the driver of the motor vehicle at a particular time the court took account of the gravity of offences on the road and entered into the balancing consideration that the Convention requires. Perhaps it might be wiser and solemnly always to intone the language of the Convention and not depart from it. I think people do find it reassuring to be told that this is not some kind of absolutism gone mad but there is, written into the Convention, balancing considerations, which the courts balance, in the illustrations I have given, and arrive at the decisions which many people would think to be socially right.

Lord Lester of Herne Hill

  72. For completeness, if I can just ask the Attorney about the Crown Prosecution Service and whether there have been any difficulties as a result of the Human Rights Act on four matters? First of all, the decision whether to prosecute for criminal offences; secondly, making decisions about the use to be made of evidence; thirdly, the use of Public Interest Immunity certificates in criminal proceedings and; finally, the disclosure of material to the defence more generally. I think we heard a bit about the last one.
  (Lord Williams of Mostyn) Could I take the last one first, please. We had a very useful consultation exercise between prosecutors, defenders, the Criminal Bar Association, the Law Society and the Bar Council and I put up the disclosure guidelines very, very recently, within the last six weeks, and all of these bodies agreed that these were a significant improvement, so that is something. It is not a consequence of the Human Rights Act, it is a consequence of a different way of thinking, and that all being approved by everyone, which is not common. PII certificates, we use them very sparingly. As is known, it is the individual minister who takes responsibility for claiming the PII. All I have to do is ensure that the certificate is in proper form. Even then, the certificate from the minister always says that it is for the judge to decide ultimately. It is fair to say that the consequence of Sir Richard Scott's inquiry have been fully learned. PII is sparingly used and the ministers know they cannot shelter behind any suggestion that I have approved what they said. I simply approve the form of the certificate. On evidence, I found no difficulties there at all. I think that what we put out, our Guidelines to Prosecutors, incorporate the question of human rights and I have not seen any difficulty at all in deciding whether to prosecute, nor have I had any difficulty when I have to authorise the prosecution myself. We try and approach it in a way which is compatible with the Human Rights Act. We have found no difficulties in practice at all.

Sir Patrick Cormack

  73. I infer from what you both said you are quietly happy with the way things have started, you believe the Act is beginning to function, modestly but properly, and you believe that Parliament and the courts are both behaving sensibly and properly towards it. Would that be fair?
  (Lord Irvine of Lairg) Yes.
  (Lord Williams of Mostyn) Yes.

  74. Do you believe, therefore, there is any need for a Human Rights Commission?
  (Lord Irvine of Lairg) I have never excluded the possibility of a Human Rights Commission. We debated the possibility, certainly in the House of Lords, I am sure it was debated in the House of Commons as well. What we have got, of course, at long last is a Human Rights Act, we have a Joint Committee of both Houses on Human Rights. I do think it is timely to wait and see how the system beds down. We have lots of commissions in this country: We have the Equal Opportunities Commission; we have the Disability Commission; we have the Commission for Racial Equality, why not another Commission as well? I think that some might think that too many commissions are too much of a good thing and the case has to be made out. I also think that constructive thought could be given to whether or not what is required is an over-arching single Human Rights Commission with subdivisions reflecting the existing Commissions. I think quite a lot has been accomplished in very recent times. Does the Attorney have anything to add?
  (Lord Williams of Mostyn) When we discussed this I think the proposal which was put by the Lord Chancellor was that this Committee would be set up and do its work. Then, I think I paraphrase accurately, if this Committee had a strong recommendation in favour of a Human Rights Commission I think the Lord Chancellor's phrase was that he would give it a fair wind.

Lord Lester of Herne Hill

  75. Since Sir Patrick has raised this question, I wonder whether the Lord Chancellor would agree that one of the options that might be considered is whether one could merge the equality agencies into an Equality Commission and have a Human Rights Commission, as in Northern Ireland. I am not suggesting that the Government snaps to it, but would that be one of the possibilities so that one reduces the number of quangos rather than increasing them?
  (Lord Irvine of Lairg) When I was floating for a single Human Rights Commission I was thinking of reducing the number of quangos very substantially. I do not want to cast any doubt on the Government's part, because there is none, on the quality of the work done by the existing Commissions, it is of a very, very high order. The issue is whether we have a multiplicity of separate Commissions or think constructively along the lines of reducing that number, perhaps, as I was floating, down to one. That seems to me to be a very fruitful area of consideration for this Committee.

  Sir Patrick Cormack: I think we should take our time.

Mr Browne

  76. I have one other quotation from the memorandum, but this time not from the memorandum from either of you, gentlemen, but from the Constitution Unit of the School and Public Policy of University College, London, who state in their memorandum, "Looked at overall the Government's litigation strategy in relation to the Human Rights Act is a live one and reflects the belief that on most of the occasions when Convention points are raised they will be without merit, and a robust defence should be mounted in court". They want to build on that. Is that observation true? If not, what is the Government's litigation strategy in relation to that?
  (Lord Irvine of Lairg) I certainly do not think that is an accurate way of putting it at all. The Government should not be excessively risk adverse, the Government has to be willing. Obviously, where a very fundamental Human Rights Act is taken, if the Government thinks that the existing state of affairs is right, sensible and compliant then it has to be willing to argue its corner in the courts. On the other hand, the Government has to be willing to learn from experience and to consider on their merits very, very carefully, Human Rights Act points which are advanced and be ready, without the need for litigation, to change its approach if need be. That is why I said at the outset that it is quite wrong to regard every Human Rights Act point that is taken against the government as a hostile act which has to be resisted to the uppermost on a die in the ditch basis, of course that is not right. A constructive view has to be taken of whether it is right to maintain that the government has got it right and whether it is right to learn from experience and consider with an open mind whether the point which is being taken is both right and would lead to better administration of acceptance.
  (Lord Williams of Mostyn) I do not believe it to be correct. First of all, if you look at the Act, one of the questioners of government, quite right too, is the free press. We wrote in in Section 12, as it were, the particular importance of a free press and a free society. If we thought that all of the points going to be taken were likely to be useless we would not have written in Section 12 in the Act at all to reflect Article 10. Can I just give one illustration, because I can see that our time has run out, Thompson and Venables is a recent case with incredibly difficult, subtle cross-currents and counter-arguments, all of which in blank have validity and legitimacy. As Attorney General I intervened and had counsel there to put the arguments. If anyone looks at those arguments which were put, which were substantially accepted by the President of the Family Division, I do not think that anyone with an open and fair mind could have said that that was an obstructive approach, nothing could be further from the truth. That whole scheme of the Act demonstrates, I think, a rather superficial polemical approach to that. Sometimes there is genuine doubt, not all government departments are perfect, and we want a definitive and determinative ruling, that is what the courts are there for. We have not spent all of this time introducing this Act to have that attitude.

  Chairman: Lord Chancellor and Mr Attorney, thank you both very much for coming here today and sharing with us your views about the impact of a different way of thinking. May I also say to you that we have written to the secretaries of state about how they see the impact of the Human Rights Act on their departments. I think it is probably right to say we have been very impressed in the way in which government departments themselves have looked at human rights issues, both within their departments and within legislation. I am also heartened by the fact that some of them have written to say to us that where members of the public have made contact with government departments they themselves have raised human rights points when asking for advice or information from the department. That is certainly an indication that you are dropping that stone into the pond and the rhythm effect is starting to happen. Thank you both very much.

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