Joint Committee on Statutory Instruments Minutes of Evidence


Examination of Witnesses (Questions 20 - 39)

THURSDAY 21 MARCH 2002

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

  20. Do you have arrangements in your own unit or within the relevant government department for somebody to bring together all the assessments made by the different inspectorates in relation to the human rights culture, so that you will have a litmus test, if not a benchmark, of how things are moving forward in the development of the culture in schools, in hospitals and in social service, all of the things that worry us about where people's human rights can be damaged unwittingly by people who are, in fact, public servants?
  (Mr Wills) Would it be helpful if Mark de Pulford were to say a bit more about how we do that? Would that be useful?
  (Mr de Pulford) I think, if I may say so, that is certainly something we can move towards. At the moment I would say that our assessments are based on fairly limited information. This process of, as it were, mainstreaming human rights in the work of inspectorates in various departments is as yet not fully developed. It was a matter, as the Committee are aware, that was drawn to the attention of Permanent Secretaries and very strongly recommended to them. It is beginning to take root but these are still quite early days. It is an area, as the Minister has said, that we do attach a lot of importance to and propose to encourage in a special way in the regular meetings that he has just referred to. We would certainly look at the inspection issue.

  21. What about the Press Complaints Commission, what have you done in relation to non-departmental public bodies or the Financial Services Authority, have you been having similar discussions with them?
  (Mr Wills) Not in so many words. I think it is important to recognise that the fundamental approach is towards mainstreaming human rights. From the Lord Chancellor's Department we cannot run every other department's human rights policy for them and how that is to be implemented through the various public bodies they sponsor, we cannot do that. What we have to do is to do what we can to push forward this process of mainstreaming. I do have a briefing, you will not be surprised to hear, on some of these bodies and it may be useful, if I may, to give you our understanding of where they are on these various points. As far as the BSC is concerned, it is our understanding that the DCMS has issued guidance to them on the impact of the Human Rights Act. I also understand that in advance of the enactment of the HRA the Broadcasting Standards Commission did obtain legal opinion that its Codes of Guidance and its working practice were compatible with the Act and the ECHR, therefore in arriving at its decision on both complaints about the fairness and on standards they had to take account of both the Human Rights Act and the ECHR. On the FSA this is an arm's length prudential financial regulator, closely defined by statute. I know that some members of the Committee may recall that during the progress of the legislation governing the FSA through Parliament these human rights aspects were debated at some length and in some detail. It is worth pointing out that the Treasury responsible for Parliament only has limited powers over the FSA, for good policy reasons. As far as the PCC is concerned, this is independent of Government and, to some extent, this needs a balance between Articles 8 and 10, Freedom of Expression and the Right to Privacy. This is already reflected in the newspaper industry's Codes of Practice and it is for the courts to decide where this balance lies on a case-by-case basis. Obviously there are some quite high profile cases going through at the moment and it is for the PCC to consider developing the industry's Codes in the light of emerging judgments. I cannot comment on the individual cases before the court. That is where we are on those three particular instances.

Lord Campbell of Alloway

  22. It is a fairly concrete question, and I am sure it can get a fairly simple answer, first of all, does the Unit contribute to the proposals for legislation from other departments, in particular the Home Office? Secondly, if it does, what is the machinery? Is there a concept here, I do not know, of a preliminary stage before pre-legislative scrutiny involved in this machinery and if so ought the JCHR to be involved at the first stage of the process, because inevitably they will get involved at a later stage? I hope I have made myself plain.
  (Mr Wills) I think the answers are, firstly, yes to your first question. The second question about the machinery is that inevitably when any legislation is proposed it comes round through the Whitehall machine, the interested departments are consulted and we will be consulted about legislation appropriately and we will then feed in our views, as we have done, on the human rights dimension of this. Obviously some legislation raises human rights questions much more directly than others, you have already mentioned the anti-terrorism legislation. In other areas we would expect primarily because of the overall approach of mainstreaming, the sponsoring departments to be involved and to come to us where they feel they need guidance and encouragement, as they often do. This is an important part of the work that the Human Rights Unit actually does.

  23. In that process what about where and when the JCHR has the advantage of knowing the advice you take?
  (Mr Wills) We would have to look carefully at how the Committee were to be involved. Generally I am always interested to know how we can continue to evolve in this new area. I am not sure I would want to encourage you necessarily to believe we can give you a positive response.

  24. It is something that cannot be answered at the moment.
  (Mr Wills) On this particular point this is a new area. If we are to go down a route which I hope is not too nebulous and fanciful, to go back to our earlier discussion, of changing the culture which I believe is fundamentally important, this whole process of how Government works, how this Committee works is going to have to evolve and we must be in dialogue on this. Clearly advice to Ministers is not going to be appropriate to be disclosed but there may well be mechanisms that we can work together on or we can be participating in this process more closely in other ways in the future.

  25. I appreciate everything you just said, it is taken for granted. Thank you very much. In context with another concrete situation I think we can get a fairly simple answer. You have said already that you advised on the Anti-terrorism Crime and Security Bill. Did you approve the Attorney General's proposals on religious hatred, which was severely criticised by the then Lord Chancellor, Lord Mackay of Clashfern, Lord Neill of Bladen and four other noble Lords, including myself, and rejected by the House? Did you or did you not advise on that?
  (Mr Wills) We were closely involved in all of the discussions on that legislation and the Government came to an agreed view on it.

  26. The answer to the question is yes.
  (Mr Wills) The Government came to an agreed view on it.

  27. Thank you very much. That is the situation. I presume your Department was involved in the Representation of the People Act and on the certificate of compliance, is that right?
  (Mr Wills) I am afraid I am not sighted on that particular issue and what role we played in that.

  Lord Campbell of Alloway: I am.

Chairman

  28. No doubt at some stage you can write to the Committee in response. I am conscious of the time and we have a large agenda.
  (Mr Wills) I will write on that particular issue.

Mr Woodward

  29. Minister, I want to come on to the question of not only establishing the culture of human rights but the expectation that this Act will provide a tool to enforce human rights. When the Bill was enacted a number of groups felt that the Act would be of significant value, particularly to some of the most vulnerable groups in our community, those with mental health problems. I am thinking particularly of the physically disabled and mentally impaired. Can you give us any examples, not about establishing a culture, but where the Act has been used as a tool to enforce human rights?
  (Mr Wills) There are a number of cases. There are not huge numbers of cases and it would be wrong at this stage to expect there to be so. There are cases. There is, for example, the case of the widow in the Crawley Green Road Cemetery in Luton where by mistake the ashes of her husband were interred in consecrated ground, when she and her husband had held for many, years profoundly secular views about this. Unless the Human Rights Act had been in force she would have been able to do nothing at all about where her husband's ashes were interred. As it was the application of the Act enabled her to secure the interment of the ashes in a place that she and her husband would have wanted. There is a limited application, but a very, very important and very sensitive personal matter where if the Act had not been in place there would be no remedy. There are a number of other examples, I am happy to write to the Committee with a list of what we would suggest would be some of the most salient examples. I have to say there are not hundreds of them, but at this stage inevitably so.

  30. I think the Committee would be pleased to hear of the case of that particular individual and I think it would be helpful to have examples. I think the point I am driving at here is, I am very pleased about the specific example you gave of the lady, but it is about establishing a culture. I suspect that that one case has not established a culture, although it is a very important principle for that particular person. I really come back to my question about the most vulnerable groups and their expectations and how the Act could be used. Within the Act there is the power given to the Secretary of State whereby an order can be made for enforcement powers to be given in relation to the Act. I now come back to the disability group, I believe I am right in saying that in September 2000 a formal request was made by the Disability Rights Commission for them to be given such a power of enforcement in relation to the Act. I believe that I am right in saying that this was the one for disabled people, including those with mobility impairments, learning disabilities and mental health problems, and those particularly with a vulnerability to human rights abuses. For them the DRC would be ideally placed to use its expertise and its ability and quality to test the law and develop experience relevant to any future Human Rights Commission. The DRC requested that in September 2000—this would have gone a long way to establishing a culture—why was it that the then Home Secretary, some nearly six months later, turned them down?
  (Mr Wills) I think we have to say this is work-in-progress at the moment.

  31. I do not think they would regard being turned down as work-in-progress.
  (Mr Wills) I will explain what I mean by that in a moment, if I may. I want to address one or two of your issues in the preamble to the question, which I think are important to pick up. I was trying earlier to answer your question very specifically. It is important to note that the rights under this Act have been enforceable for some considerable time. The particular point in case that I raised was actually to find a way we could show some specific value out of this particular Act. The ECHR has given people in this country certain rights that are applicable and it is important to register that and to that extent we are not going to immediately see huge step-changes.

  32. We acknowledge that, Minister. What we are trying to reach for here, the crucial point my colleagues have been talking about, is establishing a culture. The reason I am labouring this is the Disability Rights Commission, which is a very important Commission, as I am sure you would readily acknowledge, made a very important request, it took six months, it is not a work-in-progress, and they were told "no". What I am trying to get at here is, if we are genuinely, as I believe we are, trying to establish a culture of human rights why were they turned down? Do you think that is right?
  (Mr Wills) If I may explain what I meant by work-in-progress. We have a number of commissions which deal with equal opportunities across the piece. The Cabinet Office are currently trying to resolve an agreed position throughout Whitehall on how we approach the question of bringing together, giving effect to various European Directives, bearing in mind the evolving culture of human rights in this country and how we best organise the mechanisms for it. There are a number of different options, we have freestanding commissions at the moment, there is discussion about whether we should—

  33. With respect, Minister, bringing together the commissions into one Equality Commission, whether it is done or not done, whether it is done this year or in five years' time or ten years' time, I am really going to be very specific on this, this was a specific request in relation to disability rights, it was made in September 2000, it is about establishing a culture and they were turned down. The Government did not say in September 2000 it was thinking about bringing all of the equality commissions together, that was not the reason the DRC was given for being turned down in February 2001. I am going to ask you, why were they specifically for their specific request turned down and with hindsight, regardless of whether or not we create a single or several equality commissions, was that the right decision and would that be a decision that you would you like to look at again?
  (Mr Wills) We are looking at a whole decision and I am giving you a specific answer. It is very important to see this in context. We cannot pick out, important as it is, the DRC independently from all of the very important commissions, it does not make sense to give them one set of rights and opportunities which are denied to others.

  34. Why was that order given to the Secretary of State as a power if it is not going to be used?
  (Mr Wills) I have not reached that decision yet, no one has reached that decision yet. We are in the process of going out to very widespread consultation with everyone and we look forward to this Committee's views about what the most appropriate mechanisms are. We do not want to rush into things and it would be wrong, for wholly admirable reasons—please do not misunderstand me about this—I do not disagree with the force of what you are saying at all, but we have to make sure we have effective mechanisms that stay. That is what the consultation is about. The Cabinet Office are out to consultation at the moment. We have to work out what is the best mechanism to bring these various commissions together. In the interim period, and I understand how frustrating it is for people, it does not make sense to give the DRC special powers which are not available to any other commission. I am not prejudging the outcome of the consultation, not least because it does not fall to my responsibility, but we are out to consultation and these are very important issues, I am not denying that at all. All I am saying is the decision has not been taken finally yet and this is the process through which it will be taken. I am sure the Committee will make its views known. It is a very important consultation for that very reason.

Norman Baker

  35. I have been listening very carefully to what you have been saying and I want to briefly return to the question of the culture in Government, which I think is very key, particularly in relation to legislation. On each Bill we now have before us which comes before the House we have a statement which says, "This is believed to be compatible with the Human Rights Act", that is printed on the pages of the Bill. Can I ask whether that is an internal departmental assessment or if you or your colleagues have any input into that?
  (Mr Wills) It will depend. It is often an internal assessment, and that is consistent with the approach of mainstreaming human rights through Whitehall, as I described earlier. If departments need guidance that we can usefully give them they will come to us, but we are not their legal advisers. This is a statutory requirement and therefore it is a matter, primarily, for the lawyers within each individual department. As I say, the Human Rights Unit stands ready and willing to offer guidance and consultation whenever required.

  Norman Baker: I agree it should be a mainstream function. Nevertheless, you have a role, at least in the early days, if some departments are interpreting their responsibilities differently from others. I want to raise a specific point in relation to one Bill, which I think is a general issue, which is why it is appropriate this morning, which is to do with the Proceeds of Crime Bill. The Proceeds of the Crime Bill has a number of measures within it which have been taken directly from the Drug Trafficking Act 1994, which had incorporated and been made wider for the Proceeds of Crime Bill. However, when it came to the legislation—and I was on the Standing Committee for that—the safeguards which the Drug Trafficking Act had to temper the rather extensive powers which were given within the Act to the law enforcement authorities were missing. When I raised this with the Minister on the Committee the answer from the Minister was that those provisions did not need to be included in the Act, although they had been in the earlier Act, because the Human Rights Act was now in place and the fact it was in place meant by definition the Bill we were looking at was consistent with the Human Rights Act and that justified the statement on the front of the Bill to say it was consistent. I argued with the Minister strongly that each piece of legislation should be consistent within itself rather than consistent by reference to an external act. I am very concerned that we are going to have departments bringing forward bills which in themselves lack safeguards because there is an implicit reference to legislation.

Chairman

  36. Can I just say, we have written to the Government about this and we are awaiting a reply.
  (Mr Wills) I was going to pick up that very point. I cannot comment on this individual bit of the legislation which reflects the Home Office advice they received, however, I do think there is a very important point of principle raised here which was raised in the letter, and we are consulting on this at the moment and co-ordinating our views. It is receiving fairly urgent attention and we will be replying as soon as we can to the letter which I hope will address the general points of principle.

Norman Baker

  37. Lastly, Minister, referring to access to human rights, clearly if you want to establish a culture you have to make sure that people are aware of their rights and are able to access them. I do not know whether you then regard successful challenges to public bodies and human rights as a mark of success for the Human Rights Act or as a mark of failure, because government departments or public bodies have not kept up with what the public expect as a performance indicator of sorts. What steps have you taken to ensure that people who might feel their privacy has been invaded, or their family life has been adversely affected, or their dignity has been diminished, that they know what the Human Rights Act might do for them and what recourse they have in law? You mentioned education in schools earlier on. That is very important, all members accept that is a very worthwhile step that has been taken. What else are you doing with the general public, or is it simply a question of osmosis, which means that people will understand this over a number of year?.
  (Mr Wills) There are number of different things. In relation to the government litigation and defeats or successes, the Lord Chancellor has said, and I would just like to repeat it, that if the Government is defeated in the courts we should not regard it as somehow a disaster or defeat, but more as a step on the road towards good governance, and that is put better than I could. On the more general educational point, in terms of our own promulgation of it we, we put full information on our website so it is quite easy to find. That is going to be increasingly important as 45 per cent of homes are now on-line with a wide range of centres round the country to pick up on it. It is much more accessible than it would have been three or four years ago and it is a very effective way of disseminating information. We set up the Community Legal Service to try and make sure that people have more effective ways of implementing their rights, and this is taking off with some success across the country. Certainly the sorts of rights you have been talking about would be available to them as appropriate through the CLS. We have a very big job to do through education, through school and in time we hope the DfES will be mainstreaming human rights through adult education and through lifelong learning as well so that this culture is part of the fabric of people's lives. At some point if people fall into unfortunate circumstances where they feel they may need to enforce those rights then they will be aware, (a) they can enforce them and (b) where they can go to get them enforced.

Baroness Perry of Southwark

  38. I think you partly answered my question in what you just said. Several times you referred to the importance of mainstreaming and referred to the fact that you are a relatively small unit in one department, the Lord Chancellor's Department. Another way of putting mainstreaming is that you want all government departments to take ownership of human rights as their own issue, as something they could do and not hope some unit somewhere is doing it all for them. What are you doing to get in at that stage and to ensure at a very early stage of development of policy within government departments there is an awareness of human rights? When they are putting out regulations, for example, when the Department of Health puts out regulations about the lifting of patients in their own homes, or when they are making policy about old people's homes and the dignity of old people, and when they talk about policy in schools and the curriculum, what can you as a small unit do to ensure that human rights are at the top of the agenda at the very earliest stage of policy making?
  (Mr Wills) We do not have the resources and it would be counterproductive if we were to keep our fingers on every single bit of paper that went across every desk in every department, that is just not possible. What we can do is keep people sensitised and aware of the dimensions of it. That, in a sense, is the purpose. We have been doing this on an ad hoc basis pretty much up until now. Looking at the work we have done we think there is now a case for putting it on a more formal and regular basis and on a plenary basis. Instead of a series of bilaterals we are now setting up quarterly meetings for all of the 26 contact points in the various departments to discuss issues of general importance. We cannot keep our finger on every single bit of regulation and every stage of its development. What we can do is keep people sensitised. Over time I hope that work will change in nature. We are still in the early days and there is a big job of sensitisation to do. Over time I think the evidence is beginning, to show that people are taking it into their bloodstream, taking the ownership, as you describe it, and the job will evolve.

  39. I suppose I want to know whether you have any mechanism or any thoughts within your unit, obviously, as you rightly say, not about every single aspect of every department's policies, but there are some key areas and key departments, the Home Office, social services, education, health and so on? It is widely known within Whitehall when a new major area of policy is being worked up long before it gets to the legislative stage, or anything else, and that is the point at which really it is vital that people do not put out White Papers or Green Papers which have human right aspects that are, to say the least, dubious. Is there any mechanism you have to pick it up at this stage?
  (Mr Wills) It is, perhaps, important to distinguish between the letter and the spirit here, I think. In terms of the letter it is primarily overwhelming for the departments themselves and their lawyers to comply with the law. It is the law and they have to comply with it and make sure that it is compatible. Ministers have to sign off a Section 19 statement and that should never be lightly done, I do not think it is lightly done. There is, as it were, a more general point about more proactive response and making people aware of some of the wider dimensions. That is a job for the Human Rights Unit, that is a job for the contact points within these departments to inform, as it were, the more narrow culture of those departments themselves. That is what we are endeavouring to do.


 
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