Joint Committee On Human Rights Minutes of Evidence


Examination of Witnesses (Questions 40 - 59)

MONDAY 22 APRIL 2002

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

  40. Barristers were very worried about that or very pleased.
  (Lord Irvine of Lairg) Barristers, under the guise of opinions, were busying themselves as quasi legislators telling departments what they had to do to make themselves compatible with the Human Rights Act. Now then what bodies subject to legislation like this have to be is neither excessive risk takers nor be excessively risk averse. Very often it will be necessary—and this will be welcome to lawyers—to test in the courts what the requirements in the particular context of the Human Rights Act may be and it may be perfectly proper for a local authority, which believes that a human rights' based argument is forcing it in an unwise direction—perfectly proper—for it to test the matter in the courts.

  41. Have you a sense though that public authorities outside Whitehall have taken on a positive duty to inject human rights' thinking into their service delivery or do you think it does actually operate reactively?
  (Lord Irvine of Lairg) I think that what you do is you put a good case for a commission. Perhaps that is the case that you need to examine for a commission. I would not say myself that I have sensed any culture of reluctance to embrace a new culture of human rights, I would not say that myself of public authorities outside Whitehall which is the suggestion. I would be interested, certainly, to read the outcome of your seminar. Obviously road shows help us plus guidance. Really there is a limit to what the centre can do to encourage such a culture.

  42. One further question which sounds pretty facile at the outset but has a purpose behind it. Do you think that all the public authorities are aware of who they are? I have to tell you that we have received a letter from the rail regulator suggesting that Railtrack probably was not a public authority whereas it was quoted—I am not sure if it was by you but it was certainly in the Parliamentary debate—as a public authority.
  (Lord Irvine of Lairg) You cannot expect me to express an opinion on whether Railtrack does or does not count as a public authority under the Human Rights Act if that is something which is in contention currently.

  43. I do not think it is that. None of us had any real doubts about this before it was raised by the rail regulator. If Railtrack does not know which way it lies, what about, for instance, contracted out public services such as trusts which are running old people's homes, how are they to know if they have a duty on the public?
  (Lord Irvine of Lairg) We have a general definition of public authority in the Human Rights Act which was much praised at the time. The purpose of it was to ensure that the Human Rights Act had a very wide reach. It is bound to create ambiguous cases, and I am afraid that is where the courts come in. You see, you could have gone down in the Human Rights Act the same route that you go down in the Freedom of Information Act which is just to have lists but the view that was formed, and Lord Lester will remember it as well as I do, that in order to spread a human rights' culture as wide as possible it would be better to go for the definition that we have in section 6. It was much praised at the time. I am not surprised that Vera Baird says that it has given rise to ambiguous situations but these can only really be determined by the courts.

Chairman

  44. Perhaps if Railtrack is not sure of its position as a public authority somebody will give them some advice.
  (Lord Irvine of Lairg) Yes, like Lord Lester, for example, or Vera Baird.

  45. Or even the Lord Chancellor.
  (Lord Irvine of Lairg) Oh, no, I have long since, unfortunately, given up giving advice for reward.

Lord Lester of Herne Hill

  46. May I turn to access to justice and enforcement in the context of a possible role for the human rights commission. Lord Chancellor, you know, of course, that the existing equality commissions have an important role in giving assistance to individuals and groups in bringing legal proceedings within their ambit.
  (Lord Irvine of Lairg) Yes.

  47. So one has here a specialist form of legal aid and advice and by the expenditure of fairly modest sums they have been able to bring test cases and help individuals to secure the vindication of their rights. Would you agree that one argument that needs to be considered is whether a human rights commission, going beyond the equality field, would be able to give specialist advice and assistance to encourage meritorious cases being brought to help individuals without means to bring them and generally to facilitate access to justice? I have in mind in particular, of course, Lord Woolf's original report on Access to Justice and the way he signalled, for example, the costs rules as having a deterrent effect and the need to modify them. In other words, would it not be a beneficial thing if an expert body with a human rights' remit were to facilitate access to justice supplementing the Community Legal Service and your own residual discretion in this area?
  (Lord Irvine of Lairg) We must not forget that public law cases do have a priority under our current legal aid arrangements which I am sure is welcome to you. Also, of course, these non governmental organisations that I mentioned are not shy of promoting cases and funding cases which they think have merit but obviously if we are to have a human rights commission this would be one of the functions that we would want to consider very carefully. Also I think that we must not confine ourselves to litigation here, my own view is that conciliation and arbitration have a role in the public law sphere as well. I promoted recently, as you know, within Government the pledge that Government would almost always be willing to go in for alternative dispute resolution where the other party was willing to do so. Some thought that this pledge did not apply to public law cases. Now, of course, there are many public law cases that can only be resolved by the courts because they require a decision on a point of law. I am equally sure that there are many public law cases which could be resolved, particularly in the discretionary area, by mediation and alternative dispute resolution. I have asked a team of Government lawyers to work out how we might make progress to promote that role in the public law and human rights' spheres.

  48. Could I just deal with one aspect before someone else asks you about alternative dispute resolutions.
  (Lord Irvine of Lairg) Yes.

  49. You have told the Committee in the past you do not think there is a cost deterrent and you have indicated that there is not in your view a great access to justice problem. I respectfully disagree with that from my own personal experience but what is more important than my experience is has your Department undertaken research into whether you are correct, if I may respectfully say so, in thinking that the existing arrangements are not deterring people with meritorious human rights cases from going forward? Let me give you just one example to serve for all. In a case I know well where all the barristers and solicitors are acting for nothing, pro bono, the great problem is the other side's legal costs are so great that one has had to try and find philanthropists to indemnify against the Government's legal costs. That has had a very severe chilling effect. My question is has your Department sought to investigate whether the assertions made are well founded in fact and if not could that be considered as a possible way forward?
  (Lord Irvine of Lairg) I think the answer is that it has not been specifically looked at but we would be willing to do so. Could you give me more detail?

  50. Yes, absolutely.
  (Lord Irvine of Lairg) If you want to write to me, that would probably be the most effective way.

  Lord Lester of Herne Hill: Yes. It is a pending case but I will do that certainly.

Chairman

  51. Lord Chancellor, suppose we were to recommend that there should be a human rights commission or human rights commissions, and given the experience of the equality commissions that have been in place now since the late 1970s, do you think it is practicable to have a commission which does not have the power to send for persons, papers and records?
  (Lord Irvine of Lairg) I feel that you are drawing me down the line of very great detail about what powers a human rights commission would have so that any answer would suggest that we are agreed that in principle there has to be a human rights commission and all that we are talking about is the detail. Well, that is not so, I think the case for a human rights commission—

  52. I did say suppose we were to recommend.
  (Lord Irvine of Lairg) I know but a case for a human rights commission has really got to be argued and I am not willing to go into the detail. A human rights commission with or without such a power I am sure you would think would be highly valuable. Whether it would be better to have these powers, well I would like some illustrations of the kind of situations where these powers would be useful in a human rights' context as distinct from the discrimination context where, as I am sure Lord Lester would confirm, these ferreting powers are very, very useful and indeed, I think Lord Lester might say, necessary. I would need persuasion that they were necessary in the human rights' context. Very often in the area of the other commissions, what you are really about is just ferreting out what is wrongdoing.

Baroness Whitaker

  53. Can I just return, Lord Chancellor, to the remarks you made about alternative dispute resolution. Do you think a human rights commission could have a role to play in these and indeed might it be a cost effective option for encouraging compliance?
  (Lord Irvine of Lairg) My thinking has not extended to that detail but I do know, for example, that the Australian and Canadian Commissions have powers of adjudication and I think it is an extremely interesting idea, quite an exciting idea but I am not going to commit myself to any particular position. It is an extremely interesting idea whether a human rights commission could have a function in relation to the promotion of a mediated outcome.

  54. Perhaps that might be particularly the case in view of the Strasbourg Court's reform proposals which make mention of the greater use of friendly settlements so we might have more incentive there.
  (Lord Irvine of Lairg) I think I have signalled that I am not unsympathetic.

Chairman

  55. Lord Chancellor, it is sometimes unfair to quote people's words back.
  (Lord Irvine of Lairg) Oh, dear, what have I said.

  56. If I can quote some of yours. On the Second Reading of the Human Rights Bill you said that the Government had given very positive thought to the possibility of a Parliamentary Committee on Human Rights.
  (Lord Irvine of Lairg) Yes.

  57. You were talking about the kinds of things which the Committee could do.
  (Lord Irvine of Lairg) Yes.

  58. At one point you said "It could, for example, not only keep the protection of human rights under review, but could also be in the forefront of public education and consultation on human rights. It could receive written submissions and hold public hearings at a number of locations across the country. It could be in the van of the promotion of a human rights culture across the country''.
  (Lord Irvine of Lairg) I confess I said all that.

  59. You have seen how our work has developed. Do you still find that a plausible idea?
  (Lord Irvine of Lairg) I do unless you tell me from your seats that it is not. I thought it was right when I said it.


 
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