MONDAY 22 APRIL 2002

__________

Present:

Lester of Herne Hill, L. Jean Corston (Chairman)
Prashar, B. Vera Baird
Whitaker, B. Mr Shaun Woodward

__________

Memorandum submitted by the Lord Chancellor's Department

Examination of Witnesses

RT HON LORD IRVINE OF LAIRG, QC, a Member of the House of Lords, Lord High Chancellor, MR MARK DE PULFORD, Head of the Human Rights Division, and MR RICHARD HEATON, Member of the Legal Adviser's Group, Lord Chancellor's Department, examined.

 

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?
  2. (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 quality 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 using 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

  3. 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?
  4. (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 the 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 position? 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.

  5. 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?
  6. (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.

  7. 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?
  8. (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?".

  9. 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?
  10. (Lord Irvine of Lairg) Obviously it could. It might not, but it could.

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

    Baroness Prashar

  13. 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?
  14. (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!

  15. 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?
  16. (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.

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

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

  21. 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?
  22. (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

  23. 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 --
  24. (Lord Irvine of Lairg) Or maybe a victory of pragmatism over principle, if the principle is to be opposed to a Human Rights Act!

  25. 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 principle case for people in England having a human rights commission?
  26. (Lord Irvine of Lairg) I am sure there is a principle case and I am sure you will be very vigorous in promoting it.

  27. 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 principle case which you would like to see for a human rights commission?
  28. (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 Air 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

  29. Lord Chancellor, I think you have summed up very fairly some of the dilemmas about the future architecture of the quality of 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.
  30. (Lord Irvine of Lairg) Certainly but, as I heard you, Lord Lester, you are saying you favoured a single equality commission.

  31. 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 --
  32. (Lord Irvine of Lairg) Certainly.

  33. -- 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?
  34. (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.

  35. And you could have the information commission of privacy, data protection, 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?
  36. (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.

  37. 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 --
  38. (Lord Irvine of Lairg) It might not sit very comfortably with the equality commission. I understand that.

    Chairman

  39. Lord Chancellor, can I ask you whether the timescale on the consultation for the single equality commission is going to affect the timescale on which decisions on the Human Rights Commission should be taken?
  40. (Lord Irvine of Lairg) I do not think we have a timescale.

  41. I thought the Cabinet Office did have a timescale, and I wondered whether it had shifted.
  42. (Lord Irvine of Lairg) First of all, I am not aware - and you may know more than I do - of a timescale ever having been discussed in the context of consultation. I have seen the proposition that the Cabinet Office would not envisage a single equality commission in place for at least five years but that is because what we are doing in our meeting today is trying to broaden out the items. They are talking about a single equality commission. There is no doubt, I would have thought, that if a decision were taken in favour of a single equality commission it could well take that period of time, and I think I see Lord Lester nodding, because it is a very complex matter - probably both legislatively and administratively. The individual commissions are quite large businesses. The CRE is based in London, it has regional offices, its budget last year was 20 million, it has staff in excess of 180. If you take the EOC, its budget over the same period was 8.6 million with a staff of 117, and, if you take the Disability Rights Commission, its budget for the same period was 12.1 million with a staff of 150, each of these commissions sponsored by different departments, and the complexity is made greater if we start talking about a human rights commission, so it is a complex task. But I do not see that there is any impediment to a fruitful role for your Committee in the necessarily rather elongated timetable for a single equality commission with a single willingness on their part to consider human rights implications in the greater round.

  43. In view of the fact that you said earlier on that we should have human rights on the inside of the equality commissions, and in view of the fact also that you set out the range of options for different models pretty comprehensively, have you had the opportunity to assess the record of any particular human rights commissions in other nations?
  44. (Lord Irvine of Lairg) No, I have not undertaken that.

    Mr Woodward

  45. Lord Chancellor, given that you have just made reference to the budgets and the staffing of the EOC, the DRC and so on, and given the importance that your Government have rightly, rhetorically, attached to the importance of establishing a human rights culture, I think I am right in saying that in comparison to the, say, more than 100 staff at the DRC and at the EOC, and we could go on, the combined numbers of staff in your unit is somewhere around 10?
  46. (Lord Irvine of Lairg) I never suggested that they were a human rights commission!

  47. Absolutely not and, of course, no equation will be made between numbers of individuals and the work that can be produced but this just leads me to say that in order to establish this human rights culture, it does seem to beg the question of what real advantage was achieved by moving the Human Rights Unit from the Home Office to your Department. What were the advantages of doing that for the promotion of human rights, and to what extent could you answer some people's worries that this has reinforced an idea that human rights is really just for lawyers rather than ordinary people?
  48. (Lord Irvine of Lairg) As you know - and I am going to give you a boring reply which happens to be true - the machinery of Government changes after the Prime Minister, and obviously the view was taken by the Prime Minister that the right location for freedom of information, data protection, constitutional matters generally, human rights and so on, was in a single department which might loosely be described as a justice department rather than the Home Office, but I am not sure whether you would have favoured it remaining in the Home Office.

  49. Would not the logic of that be that the equality commissions should come under your jurisdiction too, dealing with justice?
  50. (Lord Irvine of Lairg) No. That would be empire building beyond one's wildest imaginings.

  51. It might be empire building, but there is a logic.
  52. (Lord Irvine of Lairg) But what you have, for example, in employment law with all its implications is for the DTI. To hive down equal opportunities from employment law and say that it was a human rights matter might be to erect obstacles to the creation of a commission, which I imagine you wish.

  53. But when we interviewed Mr Wills a few weeks ago, it was certainly possible for some of us to take the impression that the staff that you have are doing a terrific job but, in order to achieve the co-ordination across Government departments that one might want to see to foster the creation of human rights, perhaps the staff and its budget were somewhat less than one might want.
  54. (Lord Irvine of Lairg) All budgets are less than you want!

  55. Interestingly that was exactly the kind of answer he gave.
  56. (Lord Irvine of Lairg) It is true!

  57. But to focus on the critical point, and I go back to your comparisons with the other commissions and the staffing and the resources, do you believe that with the budget you have - and obviously you can only manage with what you have - the resourcing, the publicity and so on, available to the HRU is truly adequate to achieve the end you wish to see to promote a culture of human rights?
  58. (Lord Irvine of Lairg) Let me tell you some of the things we are doing and then you can tell me why they are not sufficient. Nothing is sufficient in this area, of course, but let me tell you some of the things we are doing. First of all, when the Act was being launched, a vast amount of guidance, publicity, training and education was undertaken. The memorandum to this Committee by the then Home Secretary, Jack Straw, really does testify to it. 1.2 million was spent on a public advertising campaign: two million copies of the introductory guide for the public were produced: a website was set up with 10,000 hits a week - it is about 8,000 a week at the moment, I think - and overall about 57 hours conducted by the unit to external audiences. We do not need to sustain the same degree of publicity after the Act, I do not think. The Human Rights Act is to some degree self-publicising: I remind you what the Constitution Unit said in 1996 - and it is true. Litigation itself can play an important role. "One high profile case covered by the media can be worth several poster campaigns", and perhaps that is a stage in the development of the culture that we are witnessing. Very high profile examples of individuals trying to exercise their rights, such as those of Naomi Campbell or Gary Whitcroft, have generated enormous media coverage but I can say that we are thinking of financing, and that we will finance, a worthwhile new campaign later this year. I think it would be timely to do so. Also there are other things that we are doing. As you probably know, every Government Department has got a human rights contact point and generally the contacts between my Human Rights Unit and these contact points have been bilateral but we are about, I think, to succeed in setting up plenary meetings between my officials and all the departmental contact points and the object would be to collect, to exchange, to promote good practice, to try to get a picture, a map, of concrete examples of what has happened in departments to change policy or procedures or practice due to the Act itself or due to specific decisions of the courts, and I think the idea is to promote a quarterly plenary with the possibility of smaller groupings from that plenary to look at particular human rights issues thrown into focus as a result of the plenary meetings. That seems to me to be progress and, of course, Richard Heaton already has a network of lawyers in all departments and the devolved administrations who meet quarterly to monitor case law, and that has been in place for several years.

    Chairman: We did get a flavour of that from him when Mr Wills came before us, and it was very useful for us in finding out exactly how that information was shared.

    Baroness Whitaker

  59. I would like to explore further the fostering of the human rights culture. I remember you addressed the Citizenship Foundation of the Law Society right at the beginning of framing the Human Rights Act when you talked about ushering in a human rights culture. I think it would be helpful to know which bodies you consider are being particularly effective in creating, promoting or furthering the human rights culture in the UK?
  60. (Lord Irvine of Lairg) I think all these non-governmental organisations that I mentioned do a cracking job in their own sphere. It is not appropriate for me to give particular plugs for any of them but Liberty, Justice, the British Institute of Human Rights and the People Action Group all deserve congratulation for what they do.

  61. Your Department has obviously been energetic also but do you consider there are tasks in relation to the promotion of the human rights culture which cannot be done by your Department particularly?
  62. (Lord Irvine of Lairg) My belief is that we are doing a good job in promoting a human rights culture but that, if I may say so, is a kind of open-ended question. If you tell me something we should be doing that we are not doing, then I will try to be constructive about it.

  63. I was struck when you gave examples of effective bodies. You mentioned the statutory non-governmental bodies and you mentioned NGOs. You did not mention local authorities --
  64. (Lord Irvine of Lairg) No.

  65. -- or any other public authorities, and it may be that there are things which your Department is too small in its scope to be able to do which ought to be done by other public authorities and which are not being done?
  66. (Lord Irvine of Lairg) It is possible but is that what is being said? What has been drawn to my attention is that a total of 98 per cent of local authorities reported that there had been or would be some specialist training about the Human Rights Act. Only 6 per cent reported that specialist training would be given to all answers but merely a quarter said it would be given to most. Of course, you could do more, I suppose, to pursue that and to follow it up.

  67. Part of the reason for my question is to identify any of these gaps which could be appropriate for a human rights commission to address which is not at the moment being done, so could I invite you to expand in your answer on the tasks which are not at the moment being done?
  68. (Lord Irvine of Lairg) I have to signal to you that I think a great deal of successful work has been done. Let me tell you what we have done and then you can tell me if it is not sufficient. There is a core guidance booklet for public authorities. About 10,000 have been issued and it is also accessible on the website. There was an introductory awareness raising guide for public authorities. 200,000 were issued and it is also accessible on the website. There have been regional LCD roadshows so far in Gateshead, Exeter, Canterbury and Bristol. The next one is in Wales on 30 April and further ones are planned for Birmingham, Liverpool and East Anglia. There is a dedicated help desk and a website with 8,000 hits; 30 plus calls or e-mails every week; and sponsoring departments - for example, DTLR and the Local Government Association in association with Justice - have issued special guidance which assists more directly on day-to-day matters, so there is a picture of fairly reasonable activity. Then, if you take our contact with other Government departments in this area, in March contact was made with other Government departments on about 75 separate occasions and contact from other departments on about 56 occasions relating to human rights' matters. It is the opposite of a picture of idleness, frankly.

    Vera Baird

  69. Following a little from that, Lord Chancellor, and creating the effort that has gone into propagating a human rights' culture, as you know you are our first witness in the second phase but we took written evidence prior to this phase and we have had a seminar also with oral evidence before this.
  70. (Lord Irvine of Lairg) Yes.

  71. We have heard from quite a lot of sources that the Human Rights Act is a low priority.
  72. (Lord Irvine of Lairg) I would be very interested in that.

  73. Outside Whitehall.
  74. (Lord Irvine of Lairg) Who told you that? I know I am not supposed to ask you questions but it would be very helpful if you would tell me who your informants are?

  75. I guess we could send you a copy of the report of our seminar which was where we had most of this airing.
  76. (Lord Irvine of Lairg) I think that might be very helpful, yes.

  77. The view was that there is evidence of human rights thinking going into the mainstream of day to day decision making and more evidence that it is taken into account on risk avoidance grounds, usually by the lawyers. We have the District Auditors report coming out quite soon which we have seen in draft which does say there is a lack of attention given to the Act in particular by local authorities. Against that background, which is our experience, can I ask you two things. Firstly, the visit to Belfast drew attention to the difference between section 75 of the Northern Ireland Act which puts on public authorities a regard to promote equality of opportunity compared with section 6 of our Act which just requires public authorities to act in a way that is compatible with the Convention right. Firstly, do you think public authorities here do regard the Act as imposing on them a positive duty to promote human rights? Secondly, is it your experience, without looking for blame, that there is this defensive and reactive attitude once you get outside Whitehall? Without wishing to put blame on it, is that where the culture has to be kick started?
  78. (Lord Irvine of Lairg) These questions, of course, also could be put in relation to Whitehall. Some people thought that the Human Rights Act was overnight going to change the world and that every policy and every practice and every procedure that had been ever applied would have to be turned upside down because of the Human Rights Act.

  79. Barristers were very worried about that or very pleased.
  80. (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.

  81. 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 the way you have appreciated may sometimes be necessarily fairly reactively?
  82. (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.

  83. 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.
  84. (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.

  85. I do think it is that. None of us had any real doubts about this, it was raised by the rail regulator. If Railtrack does not know which way it lies, what about, for instance, contracted out public services, trusts which are running old people's homes, how are they to know if they have a duty on the public?
  86. (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

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

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

    Lord Lester of Herne Hill

  91. 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.
  92. (Lord Irvine of Lairg) Yes.

  93. So one has here a specialist form of legal aid and advice and by the exposure 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 was to facilitate access to justice supplementing the community legal service and your own residual discretion in this area?
  94. (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.

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

  97. 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 sides legal costs in a powerful case 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?
  98. (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?

  99. Yes, absolutely.
  100. (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

  101. 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?
  102. (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 -

  103. I did say suppose we were to recommend.
  104. (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

  105. 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?
  106. (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.

  107. 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.
  108. (Lord Irvine of Lairg) I think I have signalled that I am not unsympathetic.

    Chairman

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

  111. 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.
  112. (Lord Irvine of Lairg) Yes.

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

  115. 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".
  116. (Lord Irvine of Lairg) I confess I said all that.

  117. You have seen how our work has developed. Do you still find that a plausible idea?
  118. (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.

  119. Well, perhaps if we had an expanded role it might be possible. Certainly we found our work cut out looking into questions of compatibility and the whole question of section 19 and legislation. That is quite a big role for a Parliamentary Committee as it is but ---
  120. (Lord Irvine of Lairg) I have been trying to encourage you today to move in the direction of lesser detail but grander causes which is the human rights commission, its relationship to a single equality commission. Now, if you like, it will be heaping more work upon you if you accept it because I do really believe that an intelligent and informed dialogue, perhaps through the media of your Committee, your Committee, if you like, being in the van, so as to promote greater understanding across Government and across the individual commissions themselves of the direction of which we should be moving. I am not in any way shy about encouraging you to undertake even more work.

  121. The implication of some of what you said was that there was quite an important not just public education but fact finding role. Earlier today a number of Members of this Committee met the Chairman of the National Human Rights Commission for India.
  122. (Lord Irvine of Lairg) Really.

  123. He told us that during the recent disturbances in Gujarati, as the Chairman of the Human Rights Commission, he travelled to the area with the knowledge and consent and approbation of the Prime Minister and was seen as an independent watchdog of human rights and in his view that has played a very important part in the resolution of those issues. Now it strikes me that given what has happened in some of our Northern cities, Burnley is an example, this could be a very important role for a human rights commission, a body which is seen to be independent of Parliament, which has a statutory power, which can go in and be trusted by all parties to look at the human rights' implications of what had happened and to make recommendations.
  124. (Lord Irvine of Lairg) Before we have even got a human rights commission you are asking me whether a human rights commission should have a major role in relation to inquiries.

  125. Yes.
  126. (Lord Irvine of Lairg) I am not persuaded that international parallels lend great support to the idea that a power to conduct inquiries is a must for a human rights commission. We have in this country a pretty well established framework for the holding of inquiries, statutory and otherwise. Would a human rights commission conduct the same kind of inquiry as the MacPherson inquiry undertook following the death of Stephen Lawrence? Is not the experience also from Australia that their Commission undertook inquiries that really swamped the resources available to it? I think you have to be very careful.

    Mr Woodward

  127. You raise a very interesting question with the Stephen Lawrence inquiry.
  128. (Lord Irvine of Lairg) Yes.

  129. Because, of course, it is a sad part of my memory that I was in the party, although not elected at the time, which refused to give that inquiry.
  130. (Lord Irvine of Lairg) Yes.

  131. The problem about the work of the human rights commission being, as it were, acted out in the Human Rights Unit in your Department or even, as it were, if it was right to put it within the remit of this Committee, the problem is it is not independent. It does seem to me that one of the great virtues of human rights is the independence of human rights. You pose the question and so I am replying to your question, would it have helped the Stephen Lawrence inquiry? My view is actually yes and it would have come earlier and it would have made a difference and it would have had a big impact on the culture of human rights in this country. I am answering your question.
  132. (Lord Irvine of Lairg) I understand that point of view. I think, however, it is a very large proposition to say that Government should surrender its power to decide when the public interest indicates that there should be an inquiry and when the public interest is contrary to having such an inquiry to a human rights commission. I do not rule it out. I think that there is a lot of international experience which I would like to know a great deal about before I would commit myself to a concluded view. I do know that the Australian Commission did score some notable successes but as far as I know - and I am being almost anecdotal I think - what I have heard from Australia is that the extent of its inquiry into homeless children, which did have a huge impact on the development of policy, really rather drained its resources for anything else over a substantial period of time. Therefore I think you have to be aware of giving such a large responsibility and so resource intensive to a human rights commission but I am thinking aloud.

    Lord Lester of Herne Hill

  133. Could I just suggest this to you, Lord Chancellor. Your dream of what this Committee might or might not do was quite an ambitious and expansive one and our problem is that we are precisely swamped - to use your words - by the need to ensure as best we can the Statute Book in the making is going to be compatible with human rights. We have to give a high degree of priority to our scrutiny role.
  134. (Lord Irvine of Lairg) You have to determine your own priorities.

  135. Of course. What I was going to say was that it would be quite impossible for a part-time Parliamentary Committee to perform a really significant independent fact finding role on pressing issues of public importance. Would it not be sensible to think of a human rights commission acting in partnership with a Parliamentary Committee in the sense that they could establish the facts as they saw them and then give evidence to us rather than this kind of role having been performed through a Parliamentary Select Committee with other pressing matters as well.
  136. (Lord Irvine of Lairg) I have never suggested that your Committee was necessarily a substitute for a human rights commission.

  137. Of course not.
  138. (Lord Irvine of Lairg) I have never suggested that and of course you could not be but you can play a significant role in persuading others of what you have just said, that is to say the need for a human rights commission and to some extent you can undertake limited fact finding of the kind that I suggested to you at the outset of my evidence so as to see where the thinking is going. The particular forum you have here is perhaps likely to be successful in drawing out the thinking of other players.

    Chairman

  139. Lord Chancellor, can I thank you very much for appearing before us today. It has been very useful to us in providing a framework for an inquiry which you will appreciate is going to take a lot of time and is going to involve quite a lot of new evidence. You have kicked us off in a very constructive way. We are grateful to you for what has been a very useful exposition and also for what you have described as thinking aloud which we have found very useful.
  140. (Lord Irvine of Lairg) It is very dangerous.

  141. Thank you very much.

(Lord Irvine of Lairg) Thank you.