Joint Committee on Statutory Instruments Minutes of Evidence


Examination of Witnesses (Questions 1 - 19)

THURSDAY 21 MARCH 2002

MR MICHAEL WILLS, MR MARK DE PULFORD AND MR RICHARD HEATON


Chairman

  1. Good morning, Minister. Good morning Mr Heaton and Mr de Pulford. Thank you very much for appearing before the Joint Committee on Human Rights today. Obviously we want to talk to you about the implementation of the Human Rights Act and the work of the Human Rights Unit. You all know that we wrote to all of the departments shortly after we were established in the late winter of last year asking about the way Secretaries of State saw the impact of the Human Rights Act on their own departments. We are obviously very keen now to see what is happening, or what progress is being made, following the General Election. If I may start by just asking a logistical question, has the Human Rights Unit actually physically moved, has it found a home within the Lord Chancellor's Department yet?

  (Mr Wills) Firstly, thank you very much for inviting us. No. There has been a certain bumpiness. With all government rearrangements there is inevitably a bit of friction and there has been a hiatus in getting the Human Rights Unit across. We now have some suitable accommodation and my understanding is that shortly after Easter we will all be together in Selborne House.

  2. Obviously we welcome that, because it is clearly an unsatisfactory situation. It is very difficult to have responsibility and control when there is that kind of geographical mismatch. I gather that the Cabinet Office Constitution Secretariat has been dismantled. In the light of that, has the co-ordinating role for human rights been brought into the Lord Chancellor's Department, thereby making it both the policy and the co-ordinating department for human rights?
  (Mr Wills) Essentially, yes. What has happened to that particular Cabinet Secretariat is it has gone in a number of different directions. There is a co-ordinating role on the devolved administrations which has gone to the Deputy Prime Minister's office. The secretariat role for a Cabinet committee, such as the CRPEC and CRPHL, has remained within the Cabinet Office, and that is now the Cabinet secretariat. The function of coordination work on human rights, on freedom of information and the House of Lords reform have now come across to LCD. I should say we are still looking for appropriate premises to bring all those people within our own premises as well.

  3. When do you expect that to happen?
  (Mr Wills) That is going to be a bit further away, I am afraid.

  4. As I said just now, we did ask Secretaries of State just over a year ago how their departments had prepared for human rights and the way in which they thought it would impact on their work. A cynic might suggest that actually the Government's response to the Human Rights Act has not been, "How shall we create a human rights culture in the United Kingdom?", but it has been, "What is the minimum we can do to stay within the Human Rights Act and not get into trouble?". What would you say to such a cynic?
  (Mr Wills) I would say that they are wrong and the fact that my job exists I hope is an indication that they are wrong. Obviously I will be judged, and the Lord Chancellor's Department will be judged, by how successfully we prove such cynics wrong. The test in the end will be not what I say to you today but how it works in practice, that is what we have to achieve. There is no question about that. There is a minimum level by which we can be judged by how we comply with the statutory requirements, this is the law. Much more importantly, in my view, is what you have just suggested, which is that we have to create a new culture in this country on the back of the Act, but actually going behind the letter to the spirit of it. That is something that will be quite difficult to judge in concrete, measurable terms. I suggest that we will all know it when we see it, and we will see its absence if it is absent.

  5. Do you see that culture developing?
  (Mr Wills) I am not a cynic or a pessimist by nature. I do see the spring shoots of this happening, yes.

  6. Just to follow up on something I asked you just now, could you confirm that you got the Constitution Secretariat job for both policy and coordination across Whitehall?
  (Mr Wills) For human rights, yes.

Norman Baker

  7. Minister, you said that the Human Rights Act was a floor rather than a ceiling, to use that phrase?
  (Mr Wills) Yes, absolutely. In terms of creating a culture there are statutory requirements which everybody is bound by, and we all have a responsibility to discharge them. It has always been in everything that the Government has said all of the way through that we see this as critically important in creating a new culture of human rights, which goes very much to the heart of what the Government has been trying to do in rebuilding communities, not just physically in terms of regeneration in geographical terms but also in terms of the spirit. We believe very strongly that the Human Rights Act, and the values that are embodied in it are going to be crucial in rebuilding that sense of community through a sense of reciprocity and mutual obligation, and all of those other things that are embodied in it, and embodied in the ECHR from the outset.

  8. Can I ask about the Anti-Terrorism Bill, because there was a derogation from the Human Rights Act there, which surprised some of us when that came forward. Can I ask, what mechanism was deployed before the decision was taken that that was an appropriate, legislative step to take? Were you consulted, for example?
  (Mr Wills) You will forgive me if I do not go into all of the details of how that legislation was passed. We were certainly very involved in all of the discussions before and during the passage of that legislation. I think it is important to recognise that we were faced with an exceptional set of circumstances where governments had to react, not just in this country, but here we had to react very quickly to a very sudden, unforeseen threat. Governments can always react in a whole number of ways to such events. I think that history will judge that we reacted in a balanced and proportionate way and the Human Rights Act provided a context in which we could do it. We did derogate from the Act in a way that was envisaged by the ECHR and it was very important that we did it within that framework. The fact that there were some review provisions as well, the fact that the measures were targeted very specifically to deal with the specific perceived threats I think shows some of the influence that a human rights culture can bring to bear on very difficult situations. This was a major challenge to our democracy. I think history will judge that we met it well and the Human Rights Act played an important part in enabling us to do so.

Baroness Prashar

  9. Can I come back to the earlier questions the Chairman asked about the culture of human rights. In terms of the training that would be taking place in government departments for the Human Rights Act, what was the focus of the training, were you looking at the technicalities of it or what steps have you taken to ensure you understood what was behind the spirit of the law, and what customs and practice you want to develop within the departments? I am really talking about other government departments here.
  (Mr Wills) I am afraid this predates my time in office, so, if I may, can I hand that over to Mark de Pulford. We are very lucky to have Mark in the Lord Chancellor's Department, he has a very long history of taking these policies forward. At one point it was not clear we were going to be able to continue to secure his services, and I am extremely glad that we are. I am relieved at this moment to hand over to him to answer your questions.

  Baroness Prashar: That was a good build-up!

Lord Campbell of Alloway

  10. Minister, you were asked a question, were you consulted on the Anti-Terrorism Act? The answer was, yes, you were consulted.
  (Mr Wills) The answer is yes, we were. The Lord Chancellor's Department were integrally involved in the development of that policy.

  11. Did they advise on this?
  (Mr Wills) Yes.
  (Mr de Pulford) To return to Mr Baker's question, the training took a variety of forms. Some of it was delivered by Civil Service college courses, to which I and some other people in this room contributed directly. In addition departments produced their own training programmes. We offered material and help with that. Those that I personally was involved with certainly focussed on compliance, because that is clearly where one must start with the Human Rights Act: it is law and people must observe it. We sought, and I certainly always sought, to set it within the context of the culture which the Government has said that it wished the Human Rights Act to help build. That meant not merely compliance but also that officials should look at ways in which they could give practical expression to the Convention rights. Good practice was certainly a matter which was, and I believe still is, covered in the training programmes. I am not sure if that is a sufficient answer or you would like me to say more.

Baroness Prashar

  12. Is there a continuing programme of training events or were they a one-off?
  (Mr de Pulford) Training continues in departments as part of basic induction in most departmental programmes of training. And there are a variety of particular training programmes available. I attend some of those and I am usually asked to speak about the human rights culture and what it might mean, and I attempt to do so consistently with the policy that the Government are pursuing.
  (Mr Wills) If I may just add to that, there is also a programme of taking it out to wider public bodies and to local authorities, and so on, through a series of road shows. We are currently planning to run six to eight of those a year, where Mark and colleagues go round the country talking about these issues to a wide range of people, so that the message is going out within Whitehall and beyond Whitehall.

Lord Parekh

  13. I wonder if I can ask you to explain to me this whole idea of the culture of human rights? When we talk about human rights there is this minimalist notion that we want to make sure that all laws should respect them. We also go on to talk about the culture of human rights, and it has become such a nebulous concept that I wonder what it means. Could you tell me more about what this culture of human rights looks like, other than saying we should respect people's rights, in which case one might say, we have been doing this over the centuries as a democracy? What is it that we are trying to achieve? If we are not clear then we have no clear benchmarks against which to assess our future performance. Also, is there an agreement across Government departments as to what the culture is that we are aiming to realise? Could you say a bit more?
  (Mr Wills) I would be delighted to, you must stop me when you feel I have said enough. Firstly, just to say I agree with you entirely, in some ways we have been complying with and observing these rights for many years and we have been bound by the ECHR and, to some extent, the Human Rights Act brings those rights home, makes them enforceable in domestic courts. They have been applicable for many, many years before that. I would absolutely agree with that. I also have to agree with your general proposition that the culture by its very nature is nebulous and somewhat hard to pin down. I certainly do not think it is a subject for Treasury KPIs or PSAs. However, having said that, I do not think it is an excuse for doing nothing. The fact that it is more difficult than some of the measures we use to judge our success does not mean we should ignore it, nor are we treating it as an excuse for doing nothing. There is, just to repeat what I said earlier, a basic level of compliance we all have to do, that in itself is valuable. The use of the Section 19 statement—I know that your Committee has had something to say about this—we hope you feel we have moved a little bit towards satisfying some of your concerns about that. That in itself, compliance with that, affects the culture of Whitehall, the fact that officials and Ministers in proposing any piece of legislation have to affirm it is compatible with the Human Rights Act, that is in itself putting a more systematic human rights prism through which policy making has to go. Beyond that and into the wider community, and the wider we go inevitably the more nebulous it becomes. Beyond that we do go, if I may generalise, into a society which is faced with all kinds of frictions and tensions that were not there 50 years ago. In many ways we live in a much healthier and better society than we did. There are also frictions, fragmentations, the atomisation of society which is, you know, generally agreed. It is also generally agreed that this creates problems which we have to address. We have to address these across a whole range of policies, social and economic, as well as more civil and political issues. If we are to rebuild our communities it is not just a question of injecting money into areas which particularly need them—crucially important as that is—but we have to find ways we can bind ourselves together again. At the heart of the Human Rights Act, at the heart of it, I think, you know, we can tease this out in some detail, it goes not only to the legislative principles but the way that it applies in this country, what the Lord Chancellor has referred to as a cooperative endeavour between the executive and the judiciary and Parliament. At its very heart there is a sense of mutual obligation and reciprocity. That in itself must be the core of any successful community, of any society that is living harmoniously together. If that is the case your question, quite rightly, goes to how do we measure this? It is all very well to talk about this but how do we measure it? I cannot give you a precise answer and it would be wrong of me even to pretend to. What I can say is that we will know it when we see it and we will know if we are failing. Here, if I may suggest, there could be a very valuable role for this Committee to play. Looking round I see a very wide range of experience, everyday you are exposed to different parts of our society in different ways. There is, if I may suggest, a very valuable monitoring and assessing role to see how far over time we are making progress. This Act is helping us to achieve these goals. It is a very important part. The fact that we cannot measure it in pounds and pence does not make it less important or should not lessen our striving to achieve it.

  14. Can I just ask a follow-up? It is not easy to talk about the language of human rights without sliding into the language of responsibility and obligations. You yourself began to talk about mutual obligation. What kind of responsibility do you have in mind? Is there a danger that the emphasis on it might, during the course of time, play down or undermine the very idea of rights? Rights and responsibility do not always to go together, sometimes they might and sometimes they may not?
  (Mr Wills) There is a theological debate about which comes first. I think actually in practice you cannot disentangle them. Some rights are unfettered and absolute, but historically very few have ever been so. Most individual rights are bound by the rights of others, they are not absolute. The question is how to find a balance between them and in finding that balance the most effective way of securing that is for each of us to recognise our own responsibilities to others. I think if we tried to disentangle it and talk more about the duties and obligations of people other than rights, if we were to go down that route, we would be missing something very precious and important about the way these things are intrinsically linked.

Baroness Prashar

  15. I want to pick you up on this question of monitoring and measurement and how you assess it. I think if you go in that direction then it is going to be very difficult, it will take some time to actually see it, but it would be nevertheless important for me to hear from you as to how you intend to monitor and measure. What are the milestones, because in a way you need some benchmarks to see whether you are making progress or not?
  (Mr Wills) We will measure and monitor. Obviously we get money and we have to account for it. It will be accounted for in some ways by the outputs of the activities of the Human Rights Unit, that will be measured. We are currently putting together our budgets and plans and the ways in which those outputs will be measured. The specific question that I was answering earlier was about how we measure the transformation of culture, which is very difficult. In terms of milestones I cannot give you that, that is an absolute ideal to which we must aspire. I cannot give you it on a yearly basis, I can give you outputs, how many road shows we will do, how many people we employ, the sort of activities we do, how many letters we write and how many information packs we send out.

  16. Those are all inputs. What would you really want to see as outputs, otherwise we are going to get very bureaucratic?
  (Mr Wills) We can measure all of those things. What we cannot measure, which I think is the most precious output of all, is a healthier, more harmonious society, where people are living more happily and more harmoniously together. We will know if that has been achieved. I will not be able to come to you in five years, if I am still here, and say, all this progress, which we will be able to measure in various ways, is due to the Human Rights Act and our activities in implementing it. What we will know and you will all know is how effective this has been, we may not be able to measure it precisely, but you will know it and in a sense this is a very valuable role, I would suggest, for this Committee. You are one of the measurers of this. You will know from your own experience how far this is taking place. We will be able to judge for things you cannot measure, you will know. For example, public discourse, how rights are talked about in the media. How, when you listen to people talking in constituencies, or in all of the other organisations that we all have to deal with, how is the language of rights being used, is it being used positively, is it being used pejoratively or is it being used at all. That sort of public discourse is very important. It is not measurable. I am not trying to evade your question, because I think it is very important, and you are right to push me on it. I honestly feel I cannot give you a concrete answer. What I can say is that we will obviously continue to assess it and it will have to be a matter for dialogue between us.

  17. Who will then assess the effectiveness of the human rights culture in public services, like health, education and social security? How will the people in these services feel?
  (Mr Wills) One of the jobs is to make judgements about this sort of thing. We are, as it were, there to be a guide and help to mainstream human rights culture throughout public services, that is the function of the Human Rights Unit. All of the time we have to make judgments about how effective we are being. We are running, for example, a very innovative scheme in schools to try and promote this culture. It is non-competitive but involves a series of awards. We are trying to generate in schools the sort of values and approaches that I was describing earlier. We will have to evaluate that scheme and see how effective it is, what sort of response we are getting in dialogue with the schools and students to see what they get out of it. It is not something we can measure annually, we may have to change our course more frequently than that. We may come to the conclusion we are absolutely on the right track. What I can assure you is we will continue to assess it and evaluate it, otherwise we have no function. That is the core of what this unit is doing and what this Minister should be doing.

Chairman

  18. Can I also suggest that while I think we would probably entirely accept that there are some things that you cannot measure that does not necessarily mean they cannot be investigated?
  (Mr Wills) I absolutely accept that.

Baroness Perry of Southwark

  19. Following up very much on that, Minister, and following on from what Baroness Prashar said about the importance of knowing what is going on in the public service, we do have inspectorates of virtually every public service, prisons, schools, the health service, and so on. Have you been talking together to relevant government departments about ways of ensuring in their inspections that these inspectorates do investigate and report on the ways in which the culture of human rights is framed? I used to be a schools inspector. If people know they are going to be tested on a particular aspect of their culture, by golly they take it seriously?
  (Mr Wills) I think that is a very important point and it has actually been a very important part of what Mark de Pulford's unit has been doing over the last few months. We have made some real progress on this. I can tell you, for example, Her Majesty's Inspectorate of Prisons are now revising "Expectations", which is the criteria by which they inspect prisons, as an indirect result of the work Mark de Pulford and his team have been doing with them. They are now taking account of the concept of health in prison, which was set out by the World Health Organisation. My understanding is that the inspectorate now proposes to take full account of the Human Rights Act in what it does and my understanding is that the Chief Inspector has made it quite plain she intends the process will fully reflect not just the letter of the Act but also its spirit. I think we can then see this new revised "Expectations" is going to be a firm foundation for what the Director General of Prisons is saying should be the decency agenda. There we see what I hope the Committee will agree is a good example of how the Human Rights Act is beginning to transform the culture and being used as a framework within which the culture can be transformed. We are very encouraged by this and want to use it as a model to keep pushing forward. Having said that, I should say that we recognise that there is still more to do on this. As a result our assessment of this we have a series of meetings with the contacts points in all of the various departments and as a result of our looking at this particular area, not just inspectorates, but how we push this through—and this goes back to Baroness Prashar's point earlier—we are going to set up, probably on a quarterly basis, plenary meetings with all of the 26 contact points so that we bring them altogether and use examples like this, perhaps, to encourage everybody to keep you informed.


 
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