Joint Committee On Human Rights Minutes of Evidence


Examination of Witnesses (Questions 1 - 19)

MONDAY 22 APRIL 2002

RT HON LORD IRVINE OF LAIRG, QC, MR MARK DE PULFORD AND MR RICHARD HEATON

Chairman

  1. Welcome, Lord Chancellor. It is a pleasure to see you and thank you for agreeing to talk to us today. You will probably know that last year we did ask for written evidence as to whether there was a case for a human rights commission in the UK, but I think it would be right to say that this evidence session is the public relaunch of the inquiry into such a case because, of course, our deliberations then were interrupted by the General Election, but we felt it was appropriate to begin with you as our first witness so we could establish the current state of opinion within Government on this question. We recognise that, so far as we know, no decision has been made on the Government's part on the desirability or otherwise of such a commission: nonetheless we hope to have the opportunity to explore with you this afternoon the broad principles which we could agree might underlie the establishment of such a commission. We also hope to look at whether there is work to be done in relation to human rights within the UK which we can agree needs to be done, and whether a commission could be an appropriate vehicle to undertake such tasks. We also need to recognise some developments which have taken place in the last year or so; two of the most significant are the decision of the Scottish Parliament and Executive to proceed with plans for establishing a human rights commission in Scotland and the decision of the UK Government to consider and consult on the future of the equality commissions. We also have some further experience of the use of alternative dispute resolution, particularly by the Disability Rights Commission, from which you may have drawn some lessons relevant to a possible human rights commission which you might share with us. If I may turn now to the meat of today's session, I think when you last appeared before us you were what I could probably describe as studiedly neutral on the question of whether we needed a human rights commission for the UK. Is that still the case?

  (Lord Irvine of Lairg) I prefer to start a little bit earlier, if I may, and I do not think that my own track record on human rights is in any respect "studiedly neutral". On the contrary. But I do think this is an area where you will wish to proceed with very great care and in a way which is most likely to be productive. I said when you last raised this topic with me which I think was on 19 March that, "I have never excluded the possibility of a human rights commission . . . 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 a lot 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?", and I was trying to get into the flavour of my answer there the scepticism that might be faced. "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", so I was sharing my thinking with you. But I also said this, which I think was intended to be helpful: ". . . 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", and then I said, "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"—the existing equality 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."—ie, a single, over-arching Human Rights Commission. "That seems to me to be a very fruitful area of consideration for this Committee". Of all the things that you mentioned at the outset, funnily I do not think that the Scottish Parliament decision is the most important one. I think that the most important development since then, and what I would like to concentrate on for a little with you if I may, is the significance of the Government having signalled its intention to consider the creation of a single equality commission for Britain in its consultation paper "Equality and Diversity" issued on 13 December 2001. There what the Government said is, "We believe that in the longer term there are arguments in favour of single, statutory Commission offering integrated advice, guidance and support on equality matters"—and I emphasis on equality matters. It continues: "We are however clear that a major change of this nature cannot be achieved effectively in the short term", and then it comments that the Disability Rights Organisation is a young organisation. Where I think your Committee may be interested is that this is starting the proposition that the Government, in principle, agrees or—I had better not depart from the language—it believes that in the longer term there are arguments in favour of a single equality commission. I think that that position gives rise to opportunities but also difficulties and a challenge to your Committee, and perhaps I may elaborate my thinking. Barbara Roche, for she is the Minister of State and Minister for Women in the Cabinet Office responsible for chairing this new Committee, is I believe coming to give evidence to you on 22 May. That I believe in itself is very timely. Her Committee is really not yet significantly up and running, and by that I mean it has not embarked on detailed meetings, and therefore the timing for an intervention by yourselves appears to me to be appropriate, and in the terms of reference which I see are around at the moment—I think they are probably draft—it says, "It is also necessary to consider the relationship between possible new arrangements for promoting equality and those for promoting and protecting human rights . . .", and then in another passage it says, "Learning from experiences in Northern Ireland, Europe and elsewhere, where equality and human rights commissions currently operate or are proposed to operate". Now the background, of course, to her Committee is Article 13 of the Treaty establishing the European Community under which framework directives are making provision for the extension of anti-discrimination measures into new areas, in particular sexual orientation and religion—which I think has got an implementation date of 2003—and age—which has got a date of 2006. But where I really wanted to start, and I was encouraged to do it by what you said about the significance of this Equality Committee considering a single equality commission, is that it must be in the interest of your Committee to engage itself as you think right with the deliberations of Barbara Roche's Committee. As I say, the consultation paper uses language which I think you could fairly interpret as indicating a long term Government disposition to favour an integrated equality commission. For all I know the views in this room are not identical, but you may feel that the equality legislation—and really I am inviting expressions of view—gives protection for human rights in the specific areas each piece of legislation addresses—that is that each statute protects a specific sub-set of human rights or, otherwise put, that those statutes should not be seen in a restrictive box marked "Equality" but should be seen as part of a larger box marked "Human Rights". So I think that your Committee has quite a difficult consideration lying ahead, whether your view is that you should be promoting a freestanding human rights commission alongside the equality commissions which may be integrated into a single equality commission, or to promote an over-arching human rights commission. The kind of general considerations that come to my mind are that, if you like, a human rights commission is for all: the equality commissions are for those groups who have been identified as being vulnerable to discrimination in particular areas. Then I ask myself, is there a demand for an over-arching human rights commission? Is that what people would actually want? You may ask me, and I will ask you, your Committee is perhaps in an excellent position to gather views from ministers in the relevant departments, and we bear in mind that life is not made any easier—and it never ever is—by the distribution of ministerial responsibility for matters, but the CRE is the Home Office, the Equal Opportunities Commission is the Cabinet Office where Barbara Roche is, and the Disability Commission is the Department of Work and Pensions, so there are, if you like, at least three sets of ministers—four, of course, if you include the Lord Chancellor's Department with its responsibility generally for human rights—and there are the three equality commissions themselves that have views about this. But I do think that there is much to play for. Barbara Roche's Committee, as I say, is not yet really fully under way, hence the time is very ripe for your Committee to be proactive in gathering and testing views and basically, I would have thought, to assist you in deciding whether your target should be an over-arching human rights commission or a yet further commission—a human rights commission. It is really the same problem that I addressed when I first spoke to you but some water has flowed under the bridge. You will also obviously bear in mind the obvious concerns within the individual commissions, which I do not necessarily think are well-founded but I do think they are understandable, that the particular interests that they presently exist to protect might not be as well served either by a single equality commission or by an over-arching human rights commission. So these are my most general thoughts on the state of play as of now.

  Chairman: Thank you very much. That was a very useful preliminary exposition of where you think the Government is now and has, indeed, answered a few of the questions we intended to ask you, which will no doubt be pursued by my colleagues. I would want to say, too, that we welcome Mark de Pulford and Richard Heaton today and if at any stage during the meeting you feel it would be appropriate for them to address the Committee we would be very pleased to hear from them.

Vera Baird

  2. Could I ask you some questions about the Paris Principles which set out the competencies and responsibilities of national human rights institutions and whether there is anything in those to which you would take exception, considering the UK Human Rights Commission, or any particular area of competency in them which you think would either present problems or which ought to have a higher priority than the Principles give to them in any UK Commission? Have you, by way of supplementary, talked to the UN high Commissioner for Human Rights about the establishment of a commission here?
  (Lord Irvine of Lairg) No, I have not. When the Chairman said "where the Government is now", the Government is not at a point of decision now. I think it would be right to say where the Government is now has been accurately described by me and has all to play for. Of course the Paris Principles are of some significance but, quite frankly, they are the yardstick, I suppose, by which national human rights institutions are to be measured: they have been endorsed by the United Nations Human Rights Committee and by the General Assembly: they leave considerable scope for each state to determine the most appropriate kind of institution for its own country: they do not have the force of law but we would be expected to have regard to them: but I really doubt myself, with great respect to the Paris Principles as guidance to the kind of competencies that national human rights institutions should have, that they are going to determine in particular the big political choice that I defined at the outset, which seems to me for the present to be whether we are going to have a single equality commission which is going to leave human rights on the outside, or a single human rights commission into which perhaps, within a federal structure, the existing commissions are to be incorporated? These are the big questions, and the other big question is this: if there is not consent secured for such an over-arching human rights commission, then what is the case for the alongside version, a freestanding human rights commission? There is a recognition that perhaps there may be a greater attractiveness in the concept of a single commission but, at the same time, a greater difficulty in securing agreement for it.

  3. Accepting all of that, and reiterating the Chairman's gratitude for you setting out what you said, the Paris Principles do present a realistic framework, do they not? Is there anything though that you think, Lord Chancellor, we ought to give higher priority to than is in the Principles, or anything which you think would present a problem?
  (Lord Irvine of Lairg) I am being absolutely frank with you. I have no quarrel with the Paris Principles: I certainly would have regard to them but I do not think they are going to provide an answer to the choices that have to be made on these subjects within Government. When I read the Paris Principles, it tells us what competencies the national human rights institutions should have—there should be a broad mandate, advisers to Government, they should be concerned with protection and promotion of human rights, they should have a role in promoting harmonisation of national law with international human rights instruments and so on—I go along with all that and I do not diminish that. They are perfectly good yardsticks but the issue today is how we get from where we are to perhaps where you want to be.

  4. Would there be, in your view, any danger of our international credibility being affected by the absence of an independent commission, given that there is a trend towards the establishment of them in other countries?
  (Lord Irvine of Lairg) We certainly know, and I slightly diminished the significance of Scotland in relation to what the Chairman said but it is true, that the Scots are going down the road of a human rights commission I think in about 2004. Your own Committee, I believe, has visited Northern Ireland where there is a human rights commission, and I can well see that there would be force in the argument, "Why not us?".

  5. The JCHR has a wide human rights remit not limited to conventional human rights. In its enforcement functions, any commission that came forward presumably would be limited to those rights that formed part of the UK law, but could it have a wider remit in respect of its responsibility for promoting rights, for advising the Government on public authorities and contributing to the process of international treaty monitoring and reporting?
  (Lord Irvine of Lairg) Obviously it could. It might not, but it could.

  6. But your view about whether that would be appropriate is what?
  (Lord Irvine of Lairg) I am not in any way hostile to that idea

Baroness Prashar

  7. Lord Chancellor, I want to talk about devolution. You have already made reference to the consultation in Scotland and, of course, the Northern Ireland Human Rights Commission, but do you think that it is a sustainable position that they are likely to have a human rights commission in Scotland and Northern Ireland and not one in England?
  (Lord Irvine of Lairg) I never accede to arguments of that kind absolutely because, of course, it is perfectly feasible for us not to have a human rights commission although other parts of the United Kingdom do have a human rights commission. I think the argument has to be more substantially merit based than "me tooism" really, but the existing system of equality protection in Britain is GB wide, with separate arrangements for Northern Ireland. In Scotland the Acts that set up the current bodies, that is to say the equality commissions, are reserved matters, but human rights as such is not a reserved matter for Scotland and, as I say, there are already special human rights arrangements for Northern Ireland: Wales may for these purposes be regarded as was in the Westminster arrangements, subject of course to consultation between the UK Government and the National Assembly for Wales, but devolution does mean that the Scottish Parliament can set up a human rights commission for Scotland: it proposes to do so: and the way it has been put to me is that it will have a limited range of key functions—promotion, education and awareness-raising, guidance to public authorities, advising the Scottish Parliament on legislation after introduction, general monitoring and reporting in relation to law and practice, and an ability to investigate and report on generic or sectoral human rights issues in relation to public policy, but the investigative role would not in Scotland include taking individual cases. Also, of course, the Scottish Executive has made it clear that the new body would only deal with devolved matters and that it is not intended to have any impact upon the remit of the existing statutory equality bodies. In more direct answer to the question, I do not think that merely because the Scots have done it we should do it—I do not think that is the right way to proceed—but I am entirely relaxed about what the Scots propose: I see it as part of the natural evolution of devolution. It is to be borne in mind, of course, that the Scottish Executive is perhaps more in need of Human Rights Commission than we are: the Scottish Executive has no equivalent of our human rights unit, nor does it have any independent assistance of the kind provided by your Committee in relation to legislation. On the other hand, I do not think that the Scottish development in any way prejudices what we may do for England or Wales, and I can certainly understand the argument which is so often right that, where the Scots lead, the English are often wise to follow!

  8. Given the developments that you have got in Scotland and Northern Ireland, do you think we should be focusing on a UK Commission or having a specific Commission for England and Wales, or Wales and England? Separate ones?
  (Lord Irvine of Lairg) I think that you should be focusing on treating Scotland as exercising devolved powers. I think you should be focusing on England and Wales, and you should be focusing on the two big issues that I defined at the outset.

  9. If we were to go down that road—?
  (Lord Irvine of Lairg) That road being a single human rights commission which incorporated the existing equality commissions.

  10. That is England and Wales?
  (Lord Irvine of Lairg) Confined to England and Wales, yes.

  11. If we were to go down that road, how can we ensure that we are holding the UK Government effectively to account on human rights issues?
  (Lord Irvine of Lairg) I think that there is substantial devolution to Scotland. The scheme of legislative devolution does not allow the Scots to legislate separately in these areas but they can set up a human rights commission which I see as a natural incident of devolution in the areas properly devolved to them to attend to the human rights implications. Northern Ireland is a special case. I think it would be natural for you to be focusing on a human rights commission for England and Wales. If I could just elaborate a little, you could establish a human rights commission for England and Wales only, separate from those for Northern Ireland or Scotland, but you would then require the approval of the Scottish Parliament so it becomes more complicated. You could give an England and Wales commission some I suppose co-ordinating role of additional functions, reflecting the fact that the Human Rights Act is UK wide and under the devolution settlement only at Westminster, at the centre, can we contract for international obligations and be accountable for international obligations, but the pros and cons of that are very far away down the line. It is a very detailed question but I repeat what I say: that I think the natural focus ought to be on a human rights commission for England and Wales but with, further down the line, some co-ordinating role given to the English and Welsh commission reflecting the fact that the Human Rights Act is UK wide. That, if I may say so, however, is pretty high ordered detail down the line in relation to the current state of play.

Mr Woodward

  12. Just listening to your arguments about this, I would like to test it for a moment. It seems to me that the Human Rights Act in many ways was a victory of principle over pragmatism and I totally share your argument—
  (Lord Irvine of Lairg) Or maybe a victory of pragmatism over principle, if the principle is to be opposed to a Human Rights Act!

  13. We will see but, sharing your view that institutions do not necessarily have to be based on the idea of one size fits all, is it not really a point of principle that, even allowing for the special circumstances of Northern Ireland and you instance Scotland, as a point in principle and given the limitations that we will perhaps come on to later on about the HRU and your own Department and financial considerations and otherwise and the fact it is a Government Department, is there not really a principled case for people in England having a human rights commission?
  (Lord Irvine of Lairg) I am sure there is a principled case and I am sure you will be very vigorous in promoting it.

  14. With respect, you keep telling us what we might do but we would like to hear from you. Do you feel with the same conviction as you did about the Human Rights Act that there is a principled case which you would like to see for a human rights commission?
  (Lord Irvine of Lairg) What I have to say to you, and you know this as well as I do, is that politics is the art of the possible and I think that what you have to do is to make the case for a human rights commission. When I said that the consideration by Barbara Roche's Committee of a single equality commission created both an opportunity and a difficulty, I meant what I said. I think it creates an opportunity if you thought it right as a Committee to promote the case for an over-arching human rights commission which would promote some fears on the part of those concerned with the areas of the specialist commissions that their particular protections would be diminished somehow within a much larger body, but you have to weigh that against the attractiveness to Government of the proposition that perhaps we should have a single over-arching human rights commission. Before I start nailing my colours to any particular mast I would prefer myself to see a wider exploration within Government of these issues and that is why, as I said, you are in the uniquely good role. I read to you what appeared to me to be promising sections of the remit of the Committee: it seems to me it would be entirely appropriate, depending upon how much time you have to give to this, to canvass views among the ministers from the departments responsible for each of the equality commissions, to canvass views from within the equality commissions themselves, because ever in life you have to decide not merely where the balance of argument in your view may be but where the balance of argument as far as others are concerned may be. You see, an argument against a human rights commission, I suppose, is that there are so many other organisations in this country which make up the matrix, if you like, of the human rights community in this country that some will say that a human rights commission is not really needed. Now, there is my Human Rights Unit in my Department, there is you, there is your Committee, and there are any number of non-governmental organisations—Liberty, Justice, the British Institute of Human Rights, the AIRE Centre, Legal Action Group and so on—which do exist and are pretty vigorous sometimes in promoting human rights. So I do not think that the need for a human rights commission is sufficient simply to assert a need—you have to make good an argument; you have to promote a case.

Lord Lester of Herne Hill

  15. Lord Chancellor, I think you have summed up very fairly some of the dilemmas about the future architecture of the equality and human rights machinery, and speaking, if I may, personally as one of the parents of the existing equality commissions I very much hope, but I speak purely personally, that we do move towards a single equality commission in Great Britain as we have in Northern Ireland. I say "Great Britain" because, as you appreciate, the EOC and the CRE are not English bodies: they transcend the frontier.
  (Lord Irvine of Lairg) Certainly but, as I heard you, Lord Lester, you are saying you favoured a single equality commission.

  16. Yes, and that brings me to my question. The way you have put it is that there is a choice between what you call a restrictive box marked "Equality" and a larger box marked "Human Rights". I just want to pursue that a bit because it seems to me there is another possibility that needs to be considered which is to preserve all that is best about specialist enforcement and investigation and assistance in the equality field in an equality commission while at the same time linking that with a wider perspective of a much more general kind in a human rights agenda. If I can explain what I mean, as you know there are positive duties and very specific enforcement functions in the equality field—
  (Lord Irvine of Lairg) Certainly.

  17.—that one would not think of being appropriate in dealing with torture or free speech or privacy or any of the rest of the human rights agenda, so do you think it would make sense to consider not only the two boxes but a different kind of relationship?
  (Lord Irvine of Lairg) Absolutely. I was only, I suppose, over-simplifying for the same effect. There could be any number of models—I quite agree. I am not quite sure I completely understand what your alternative model would be. It sounded to me like a single equality commission with a human rights commission alongside, and that could happen.

  18. And you could have the information commissioner, the data protection commissioner, the ombudsmen—all of them could be on a kind of Swedish model; there could be a kind of federal umbrella or framework in which these other interest groups could be combined. But what I am concerned about in my question is that one should not do anything to weaken the well-developed and specialist enforcement functions of an equality commission. By all means one thinks about avoiding waste and duplication, but would you agree it is very important, whatever one does, not to weaken the enforcement mechanisms in the equality field?
  (Lord Irvine of Lairg) Of course I agree with that but I do not think that, in order to preserve the powers of these various bodies necessitates that they either remain as separate commissions or that they become a single equality commission, nor to my mind need their, if you like, enforcement powers—whatever general expression you want to use—be necessarily prejudiced by being brought within a human rights commission with a federal structure because it does not need to be perfectly symmetrical. Each part of the structure can have different powers. For example, we know what the CRE does: it can advise and assist claimants: it can conduct formal investigations, general investigations and issues on discrimination notices. If you were to ask me the same questions about the Equal Opportunities Commission or the Disability Rights Commission I think the powers are about right and I would agree that I would not want in these areas to see the powers in any way diminished as a result of any new structures, so, first of all, I wholeheartedly agree with that. I do not think, however, that in order to secure that dictates any particular structure. As I understand it, there are three basic models around: a single organisation called the Human Rights Commission, standing alongside but separate from the other equality bodies, and there is parlance around that calls that—and I do not know if I like the expression—the "alongside" model; then you could have a fully integrated model, which is a combined organisation integrating all other human rights functions and bodies into one body and responsible for the existing particular functions and powers of the existing bodies and for its own more general human rights functions, and that, as you imply, would need to have determined what powers should be associated with the human rights function which would certainly not be the same as the existing equality commissions; or you could have an umbrella organisation co-ordinating the activities of other human rights bodies and here, of course, I am using language which supposes that I regard these equality commissions as particular human rights bodies, but filling gaps and providing common support services while allowing them to retain under the umbrella a quite significant operational independence. So this would be a rather loose federation leaving a good deal of autonomy and the existing structure and powers for the existing commission. I think, therefore, that we are more or less at one as to the possibilities, and the only difference that I might say is that I do not think that in order to retain the powers which the existing commissions have indicates or prescribes any particular form of organisation.

  19. Very briefly, in answer to Baroness Prashar you were implying that an English solution might be preferable to a British solution on the human rights commission side but that would not, I suggest—
  (Lord Irvine of Lairg) It might not sit very comfortably with the equality commission. I understand that.


 
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