Appendix
Response from Michael Wills MP, Minister of State,
Ministry of Justice, dated 8 April 2008
I am writing to respond to the Committee's conclusions
and recommendations in the above report. In general, I and my
colleagues at the Ministry of Justice are grateful for the work
done by the Committee and for the way your work will inform how
we continue to develop human rights in this country and build
upon the HRA. In responding in detail, I have adopted the Committee's
numbering as in the summary at page 36 of the report.
1. We are disappointed that the Government
should have decided to scale down its efforts at 'myth-busting'
in relation to the Human Rights Act, especially when Government
Ministers are themselves often responsible for creating misconceptions
about the Act. All politicians have a duty to act responsibly
in relation to the protection of human rights and should not use
the Human Rights Act as a convenient scapegoat for unpopular decisions,
when they are usually nothing to do with human rights or the Human
Rights Act. It is essential that Ministers refrain in future from
misleading the public by continuing the practice of blaming the
Human Rights Act for judicial or other decisions with which they
disagree or which embarrass them. (paragraph 4)
The Human Rights Programme at the Ministry of Justice
was established to implement the findings of the Review of the
Implementation of the Human Rights Act 1998[1]
published in July 2006. The Review found, amongst other things,
that a number of damaging myths such as those cited by the Committee
had grown up around the Human Rights Act.
As part of the Programme, a network of press officers
in ministerial departments was established. Its members liaise
regularly with the Ministry of Justice press office on human rights
issues, identifying and correcting inaccurate or misleading media
coverage of human rights issues, thereby seeking to prevent the
repetition of old myths and the creation of new ones. A collection
of the most commonly-repeated myths about the Human Rights Act,
together with information to facilitate their rebuttal, has been
circulated to the network and is regularly updated.
The Human Rights Programme was successfully completed
in October 2007. An internal evaluation of the Programme, undertaken
in accordance with Office of Government Commence guidelines, found
that the Programme's establishment of cross-Government networks,
including that of press officers, was a model for engagement with
other departments. The Head of the Ministry's Human Rights Division,
sent the JCHR a copy of this evaluation in October 2007.
Furthermore, the successful conclusion of the Programme
does not mean that we have decided to "scale down" our
"mythbusting" efforts, as you claim. Indeed, in
the very section of oral evidence that you cite in your report[2],
I said:
"…as I understand it the idea was more
to set up a process which would continue, that we would set up
networks of human rights champions, we would have a rebuttal unit,
which is still very effective and works very well, that every
time you got one of these frankly wrong stories in the press about
someone having human rights for Kentucky Fried Chicken (actually
profoundly wrong stories in the press), they would be rebutted
quickly… I think the idea was primarily to set up a process
which would continue and is continuing to start having that sort
of effect."
The network of press officers is thus still in operation
and continues to rebut inaccurate assertions in the media about
the Human Rights Act.
I am afraid I also disagree with you that ministers
are misleading the public about the affect of the Human Rights
Act. Since I became human rights minister, I have seen no evidence
of this.
2. In our judgment, the Government has done
nowhere near enough over the past decade to use the Human Rights
Act as a tool to improve the delivery of public services. This
failure has contributed to the poor public image of the Act and
'human rights' in general. We challenge the Government to improve
this situation. A good start would be for the Government to implement
fully the recommendations we made in our report into older people
in healthcare. (paragraph 8)
I do not accept this criticism. Before the
Human Rights Act even came into force, the Government undertook
a major programme of training and information provision about
the new duties that it created, and the new opportunities for
improving public service delivery that it offered. Officials in
the Human Rights Division[3]
have overseen and contributed to events and publications in many
different parts of the public sector since the Act came into force;
you will already be familiar with some of these, including a guide
to the Act for public servants - Human Rights: Human Lives
- and the conferences held for public sector managers in October
2006.
There is of course only so much that can be achieved
from within a Government department, which is one of the reasons
why the Government established the Equality and Human Rights Commission
(EHRC) with wide statutory responsibilities in this area. You
will be aware, of course, that in addition simply to promoting
compliance with section 6 of the Human Rights Act, the Commission
has duties to "promote understanding of the importance of
human rights", to "encourage good practice in relation
to human rights", and to "promote awareness, understanding
and protection of human rights"[4].
This Government's determination to set up the Commission in this
way contradicts your claim of Government failure to promote human
rights.
The Department of Health responded in November 2007
to the Committee's report on the human rights of older people
in healthcare. I know that much excellent work in relation to
human rights was being undertaken in the health sector well before
the Committee's report and I shall not seek to summarise my colleagues'
response to your report.
3. Human rights apply to everyone, from the
elderly in the healthcare system, adults with learning disabilities
and the victims of trafficking, to groups which attract less public
support. Prisoners and asylum seekers also have rights which,
though sometimes limited, must be respected. We repeat, human
rights are universal. They help protect us all from abuses of
state power as well as violent crime, such as terrorism; they
provide a powerful vehicle to improve public services; and they
ensure that the most vulnerable people in society are not overlooked.
Police suspects, prisoners and migrants are highly vulnerable
and their human rights - the rights to a fair trial, or not to
be subjected to inhuman treatment, for example - assume a greater
importance as a result. A democratic society must respect the
human rights of all, if it is to be worthy of the description.
(paragraph 10)
I agree with the Committee's conclusion, which reflects
much of what the Secretary of State for Justice and I have said
in speeches since our appointment to our current roles.
4. Looking back over our reports it is possible
to identify a number of recurring human rights compatibility issues
which have arisen in relation to a number of bills:
- The adequacy of the safeguards
contained on the face of bills conferring powers to disclose,
share or match personal information;
- Lack of clarity about whether private bodies
are "public authorities" for the purposes of the Human
Rights Act where bills confer powers and functions on them;
- The adequacy of judicial and procedural safeguards
to protect liberty;
- The danger of discrimination in the operation
of certain provisions;
- The right of access to a fair hearing before
a court;
- The adequacy of safeguards against powers to
search the person or property;
- The adequacy of procedural safeguards on preventative
orders;
- The adequacy of the powers and independence of
human rights institutions;
- The adequacy of protection for children and young
persons. (paragraph 22)
The Government notes the Committee's conclusion;
many of these are issues on which the Government has regularly
rehearsed its views to the Committee. We don't always agree but
we are grateful for the vigorous way in which the Committee continues
to express its views. This is an important part of its function.
5. The Government's renewed efforts on the
Explanatory Notes to bills has led to an overall improvement in
the quality of the Explanatory Notes and has produced much more
detailed explanations in the case of some bills. For example,
the Notes accompanying the Criminal Justice and Immigration Bill,
currently before Parliament, include 36 pages of detailed assessment
of ECHR compatibility. The Pensions Bill was also accompanied
by a detailed letter analysing the human rights issues raised
by the Bill, and subsequent Government amendments to the Bill
were also accompanied by detailed human rights analyses, for which
we were grateful. The more detailed the analysis provided alongside
the bill, the fewer questions we are likely to need to ask the
relevant department about possible human rights concerns. (paragraph
25)
However, the record remains extremely variable…
the Notes accompanying the Legal Services Bill, the Offender Management
Bill, the Welfare Reform Bill and the Local Government and Public
Involvement in Health Bill all attracted adverse comment for failure
to provide the sort of analysis and information which we expect.
We have continued to report fairly frequently that Explanatory
Notes contain assertions of compatibility rather than reasoned
explanations. (paragraph 26)
We therefore remain of the view that a dedicated
human rights memorandum should accompany every Government bill.
(paragraph 28)
6. We have decided in principle to follow
the example of the House of Lords Delegated Powers and Regulatory
Reform Committee and, when our other work permits, to draw up
our own Guidance for Departments, setting out what we expect from
Departments in the explanatory material dealing with the human
rights issues raised by a bill. (paragraph 29)
I am pleased that the Committee has acknowledged
the considerable improvement in the human rights section of Explanatory
Notes. While there remain occasional difficulties, there have
also been excellent examples such as those cited by the Committee.
However, I do not see, in general, what further purpose
could be served by creating a separate human rights memorandum.
The information that would be included would be substantially
the same as that included in the Explanatory Notes at present,
but under a different title.
It seems to me, given the very good performance that
has been achieved in the majority of cases, that the Committee
might wish to reconsider the sort of further information that
might be reasonably be provided. In deciding which statement to
make under section 19 of the Human Rights Act, departments will
consider issues that have a real effect on the overall compatibility
of the Bill with the Convention rights; departments will also
consider major issues arising in relation to other international
obligations where there is a genuine risk of our not fulfilling
those obligations. In some cases, the issues that the Committee
has raised have been ones that the department in question did
not consider even to be areas of risk. Given that human rights
compatibility is not merely a "tick box" exercise undertaken
by the production of one document, but is integral to the whole
policy-making process, it is practically impossible to provide
one continuous account covering every issue that the Committee
might raise.
In this respect, the work of your Committee is substantially
different to that of the Delegated Powers and Regulatory Reform
Committee. In the memorandum for that Committee, it is possible
to account in a comprehensive manner for the decision taken in
respect of the nature of each order-making and delegated power
contained in a Bill. It is never possible to analyse even a moderately
substantial Bill in the same way in respect of any argument that
could possibly be made as to its impact on human rights. It is
therefore necessary for departments to focus on the key issues
as it sees them. I doubt whether a greater volume of information
(with the additional workload that it would create for departments)
would offer the Committee any greater enlightenment on the issues
that it chooses to raise.
Nevertheless, I (and my officials) are always prepared
to engage constructively with the Committee about how we might
work together more effectively; I would therefore be interested
in seeing the Committee's suggestions for guidance on this topic.
I should observe, however, in the interests of preventing duplication,
that guidance on this topic is already provided to departments
in the Guide to Legislative Procedure[5]
prepared by the Cabinet Office, a new version of which is currently
in preparation.
7. We propose that in future our decisions
about what issues to prioritise in our legislative scrutiny work
will be more closely informed by the latest reports of international
monitoring bodies and human rights NGOs as well as significant
court judgments. (paragraph 32)
The Government notes this conclusion and looks forward
to seeing the fruits of this new approach.
8. In the second half of 2007 we have been
concerned at the number of times Government departments have claimed
not to have received our letters, or to have mislaid them, where
they have actually already acknowledged receipt. (paragraph
34)
It is of course never acceptable for a Government
department to mislay a letter, or to delay responding without
good reason, and I apologise on behalf of the Government for any
occasions where this has occurred.
The Committee will however appreciate that departments,
and particularly Bill teams, receive a considerable volume of
correspondence, and that from time to time errors in the correct
allocation of correspondence within departments may occur. In
this respect, the Committee may wish to consider whether its secretariat
could contact directly the relevant officials to draw to their
attention a letter in transit, particularly where the letter asks
many questions with a particularly short deadline. My officials
may be able to assist the Committee in facilitating its correspondence
with Government departments, and I would invite the Committee
secretariat to discuss that with my officials.
9. We wish to ensure in future that our scrutiny
of Government bills extends to significant Government amendments,
at least in relation to bills which we have decided to scrutinise
further. To facilitate this, we will require full explanatory
material on human rights issues to accompany Government amendments
to bills. (paragraph 38)
The provision of such information is already something
that my officials encourage where appropriate. So long as this
requirement is limited only to Government amendments that significantly
alter or augment the policy or implementation of a Bill, or a
Bill's human rights compatibility, I am content for this requirement
to be reflected in our guidance; this is perhaps a further matter
that could usefully be discussed between officials and the secretariat.
10. In principle we would like to scrutinise
more statutory instruments raising significant human rights issues
in future. (paragraph 41)
Although this is once again a matter for the Committee,
I support the Committee's intention in principle, so long as it
does not duplicate the work of the Joint Committee on Statutory
Instruments. I note that the Delegated Powers and Regulatory Reform
Committee also scrutinises the powers under which statutory instruments
are made.
I would further observe, of course, that unlike for
primary legislation, in respect of which Parliament retains the
power to proceed with a Bill even if it may not be compatible
with the Convention rights[6],
it is almost always ultra vires for a Minister[7]
to seek to make secondary legislation that is incompatible with
the Convention rights.
11. In future we will suggest amendments to
give effect to our recommendations where possible, with a view
to Members of our Committee tabling and speaking to them in debate
in both Houses. (paragraph 42)
In principle I can see the merit in creating an opportunity,
particularly during the Committee stage of a Bill in either House,
for Members to discuss major issues raised by the Joint Committee
in its report on that Bill.
It is of course for members of the Committee, like
all other Members of both Houses, to decide which amendments they
wish to table, and when. However, I suggest the Committee considers
carefully the implications of tabling large numbers of amendments,
particular at Report stage in the House of Commons, that give
effect to all of the Committee's recommendations of a Bill, or
which relate predominantly to the Committee's conclusions in a
thematic report[8]. In
practice, this would lead to the Government responding twice to
the Committee's recommendations - once in writing and again in
debate - and taking up valuable time on the floor of the House
without giving any opportunity for a focussed debate on a point
of significant human rights interest.
I would again note at this point that the Committee's
recommendations are significantly different to those of the Delegated
Powers Committee. While the amendments proposed on behalf of the
Delegated Powers Committee almost always relate to points of technical
detail in a Bill, the recommendations made by your Committee can
sometimes imply the substantial amendment or abandonment of an
entire Government policy objective, as embodied in a Bill before
Parliament. It is therefore also not reasonable to expect, as
I understand is the common practice for the Delegated Powers Committee,
that amendments proposed on your Committee's behalf would as a
rule be accepted without demur by the Government.
This proposal is something that we will need to consider
carefully as it is put into practice, and I hope the Committee
will be receptive to further representations should we find later
that it is creating substantial difficulties or delays during
the passage of Bills.
12. We propose, on an experimental basis,
to identify the main stakeholder organisations in relation to
the relevant bill and send e-mail alerts to those organisations
notifying them of the human rights issues which we have decided
to scrutinise and inviting representations. (paragraph 44)
I share the Committee's disappointment that interested
parties have not engaged more extensively with the Committee's
legislative scrutiny work, and I applaud the Committee's efforts
to widen the range of people and organisations making representations.
However, given the short time that the Committee can allow to
receive such representations on a Bill, I can understand that
individuals and smaller (particularly exclusively voluntary) organisations
may find it difficult to prepare a submission of the necessary
quality for the Committee's consideration.
I would particularly welcome greater engagement with
human rights issues by specialist persons or groups on a given
topic who would not ordinarily address their concerns in terms
of human rights. Indeed, it would be particularly pleasing were
those people and organisations who support the objectives
of a particular Bill to be encouraged to use the language of human
rights to articulate its benefits; in this way, human rights would
not in the legislative context be solely associated with problems
and objections.
13. We are not satisfied with the Government's
reply to our Report on highly skilled migrants and changes to
the Immigration Rules and intend to return to this issue, and
to the interaction between immigration issues and human rights
more generally, in the near future. (paragraph 46)
I note that, subsequent to the publication of this
report, the Committee followed up this issue at the oral evidence
session on 19 February 2008 with the Minister for Border and Immigration,
Liam Byrne MP.
14. Pre-charge detention was the main theme
of our July report in our counter-terrorism inquiry and we were
disappointed that the Government's apparent willingness to consult
widely on whether, and, if so, what, further changes were needed
did not extend as far as even warning us that an announcement
was imminent… We concluded that the Government had failed
to make the case for further extending the maximum permissible
period of pre-charge detention and that a combination of alternative
measures, including post-charge questioning with appropriate safeguards,
would be both a more proportionate and effective way forward.
We intend to carry on with our work in this area in 2008 and look
forward to scrutinising the Counter-Terrorism Bill when it is
published. (paragraph 48)
The Counter-Terrorism Bill had already been published
(on 24 January) by the time of the publication of the Committee's
report. It contains a measure which would allow an extension to
the pre-charge detention limit in terrorist cases from the current
28 days to 42 days. The new proposal will not extend the pre-charge
detention limit beyond 28 days now, but will enable the limit
to be extended in future - and only then if there is a clear and
exceptional need to do so.
Given the scale and trend for increasingly complex
cases, we believe there may be a need to go beyond 28 days in
future. Information on the scale and complexity of recent terrorist
cases was set out in a letter from the Home Secretary to the Rt
Hon Keith Vaz MP on 6 December 2007. However, we have listened
to the concerns of community groups and others and have come up
with a proposal which will ensure the higher limit is exceptional,
temporary and subject to a Parliamentary debate and stringent
judicial safeguards. The higher limit could only be made available
if there was a joint report from the police and prosecutors saying
that there was a compelling operational need for it and the detention
of individual suspects would remain a matter for judges not Parliament.
We accept that alternatives, such as post-charge
questioning, may improve the police's ability to deal with terrorism
cases and therefore reduce the risk that investigation teams will
come up against the limit of pre-charge detention. But they will
only reduce the risk and cannot eliminate it entirely.
It is right and proper to legislate now to ensure
that we have the ability to activate the necessary powers when
there is a clear operational need for them. It is the responsibility
of Government to ensure that the police have the tools they need
to tackle terrorism - we would be failing in our responsibility
to protect national security if we waited until we needed more
than 28 days before legislating. We believe that this proposal
balances the need to protect individual human rights against providing
the police with the powers they need, when they need them, to
deal with terrorism.
15. In our inquiry into the treatment of asylum
seekers we concluded that the Government was following a policy
of deliberate destitution towards failed asylum seekers aimed
at encouraging them to leave the UK and deterring others from
coming, which was leading to the widespread abuse of the human
rights of an extremely vulnerable group. (paragraph 50)
The Government's formal response, describing our
policy and practice in each area covered by the Committee, was
published by the Committee in July 2007 in its Seventeenth Report
of Session 2006-07.
We do not accept the Committee's conclusion that
Government policy leads to the abuse of human rights. Our asylum
system, including the availability of support and healthcare,
is fair and properly balanced incorporating appropriate regard
to human rights.
We are proud to maintain the UK's long tradition
of providing protection to those who need it in accordance with
our international obligations. It is also right that we take steps
to ensure the integrity of our asylum system by denying the full
benefits of the UK to those who have been found not to be in need
of protection and by seeking to enforce the removal of those who
choose to ignore the opportunities for voluntary return and reintegration
assistance to a home country that has been found safe for them
to live in.
16. Although we found examples of good practice,
where the principles enshrined by the Human Rights Act had been
used as the foundation for the provision of healthcare, our general
conclusion in our inquiry into older people in healthcare was
that the protection and promotion of human rights were too often
tangential to the planning and delivery of services. (paragraph
51)
As already stated in the Government's response to
the Committee's report on the human rights of older people in
care, the Department of Health is committed to excellence in policy
making; it has produced a guide, sponsored by the Permanent Secretary,
entitled Better Policy Making [9]
which policy makers across all areas of the Department of
Health's work should follow. This emphasises the importance of
policy making as a series of inter-related activities, where thinking
through issues as a policy is being shaped is critical to future
success. This includes addressing equality issues during the development
and implementation of new policy. The Department of Health believes
that human rights considerations should be reflected in all policy
making, and will review its policy making processes to ensure
that this is the case.
The Department of Health has, as part of its drive
to achieve excellence in policy making, designed a series of workshops
for policy officials with the aim of promulgating good practice
in all aspects of the policy making process. The Human Rights
Act is one of a number of over-arching considerations which impinge
on all policy making, and consideration of human rights is a key
part of the legal section of this Policy Process course, due to
be rolled out from Spring 2008.
17. One consequence of this messy situation
[accountability for equalities policy within Government] is that
it is unclear where parliamentary oversight for equalities properly
rests. Since that letter was written we have heard nothing more
about this proposal: we will be seeking the Liaison Committee's
assistance in clarifying this matter during 2008. (paragraph
61)
The Government notes the Committee's conclusion,
which is a matter for the Liaison Committee and Parliament.
18. During 2008, we intend to scrutinise the
apparent use of illegal conditioning techniques by British troops
in Iraq and the implications of the applicability of the Human
Rights Act to people detained by the military overseas. We expect
the Secretary of State for Defence to assist us fully in this
process. (paragraph 64)
The Government notes the Committee's intention, and
will seek to assist the Committee as appropriate.
19. We call on the Ministry of Justice to
respond urgently to the systemic recommendations in our Report
into Monitoring the Government's Response to Court Judgments Finding
Breaches of Human Rights. The Report was published in June and
the department's response to these recommendations is now five
months late. (paragraph 66)
My main response to the substantive issues raised
in this report was sent to the Committee on 14 August last year,
well within the two-month target for responding to such reports.
As I noted in that response and later in oral evidence,
and as my officials have explained in some detail to the Committee
secretariat, the Committee in that report made some exceptionally
wide-ranging suggestions as to the organisation of Government
business. I would very much like to respond substantively to the
Committee's recommendations, rather than simply noting the Committee's
views and I would hope the Committee would welcome this desire
to respond more substantively than is sometimes the case. However,
it is taking quite some time to investigate the possibilities
in this area, and the extent to which the Committee's recommendations
would be possible and effective. In particular, in relation to
the judgments of the European Court of Human Rights, we are bound
to respect the timescales and requirements of the Committee of
Ministers, which supervises the implementation of such judgments.
While we will obviously consider your suggestions, our obligations
in this respect must be our primary consideration.
Therefore, while I could send to the Committee for
the sake of form a further response covering these remaining recommendations,
doing so without substantively engaging with the Committee's opinions
would satisfy neither me nor, I suspect, you.
We have decided to experiment with a novel initiative
for following up past reports by organising a mini-conference
in Portcullis House, jointly with the British Institute of Human
Rights, on the meaning of 'public authority' under the Human Rights
Act and the implications of the YL judgment on
23 January 2008… We will assess the success of the conference
before deciding whether to organise further events on other issues.
(paragraph 79 - conclusion not numbered)
This event was an interesting experiment. However,
it was, in our view, unbalanced by the fact that only one side
of the issue (the groups interested in human rights or the interests
of older people, as opposed to the commercial care providers)
was represented. It was not conducive to an open debate that Ivan
Lewis MP and I had to defend the interests of others not present.
Should this format be tried again, whether for this or another
subject, in our view, it would be likely to be more productive
if all interested parties are brought around the same table.
20. In common with all Committees, we have
often been disappointed with Government replies to our reports
which have not accepted our recommendations. The reply to the
treatment of asylum seekers' report was particularly uninspiring.
We had pointed to a number of areas where Government policy was
not being put into practice on the ground, where human rights
abuses had been the result. The Home Office reply ducked this
issue entirely. We are dealing with problems of this sort in our
strategy for following up reports. (paragraph 81)
As I noted in response to recommendation 11, the
nature of the Committee's recommendations is sometimes such that
it cannot expect the Government routinely to abandon or substantially
amend an entire policy objective in response to its recommendations.
The Government takes the views of the Committee into account,
as it does the views of other relevant Parliamentary committees,
other Parliamentarians, and indeed other interested parties beyond
Westminster. Wherever possible, we seek to respond positively
and constructively but, as I hope the Committee will recognise,
in many cases, there are wider considerations than those on which
the Committee has focussed, not the least of which is for the
Government to give effect to undertakings it has made.
21. Our January counter-terrorism report,
which focused on the definition of terrorism, has not received
a reply from the Home Office: the reply is now some ten months
late. In addition, we have so far been unsuccessful in persuading
the Ministry of Justice to reply to our report on the Meaning
of Public Authority under the Human Rights Act: that reply is
now eight months late. We call on the Government to reply to these
reports as a matter of urgency. (paragraph 83)
I understand that Tony McNulty MP, Minister of State
in the Home Office, has now responded to the Committee's report
on the Council of Europe Convention on the Prevention of Terrorism.
The Committee's report on the Meaning of Public Authority
under the Human Rights Act was published while the YL case
was being considered by the House of Lords. My predecessor as
Minister for Human Rights, Cathy Ashton, wrote to you at the time
of the report's publication to indicate that the Government would
not respond to it until the judgment in YL had been delivered
and its implications considered. That judgment and related developments
mean that many of the Committee's conclusions were overtaken by
events. However, I do intend to write to the Committee soon on
this general subject in the context of the continuing consideration
in relation to the Health and Social Care Bill; I shall take that
opportunity to address the Committee's conclusions insofar as
they remain relevant.
The Committee will be aware, not least from my own
appearances in front of it, of the complexity of the issue and
also of the importance the Government attaches to securing an
enduring resolution of it.
22. We feel strongly that if the Director
General of MI5 is able to make a public speech to journalists
about the level of threat posed by terrorism, he should be prepared
to appear formally before a parliamentary committee to answer
questions about the comments he has made. Clearly, there will
be some paths down which the Director General would be unwilling
to tread and some matters which ought not to be exposed to public
scrutiny at this stage, but this should not preclude any effective
parliamentary scrutiny from taking place. (paragraph 89)
The Government notes the Committee's comments. Parliament
has determined through legislation that the Intelligence and Security
Committee (ISC) should undertake formal Parliamentary committee
oversight of the intelligence and security agencies. The Intelligence
Services Act 1994 sets out arrangements for the ISC including
those for reporting to Parliament through the Prime Minister and,
as recognised, the necessary safeguards to ensure that sensitive
matters, the public disclosure of which would damage national
security, are kept secret. Under the Governance of Britain
programme, consideration is being given to reforming the way in
which the ISC is appointed, operates and reports. The approach
of successive Directors General of the Security Service, and other
agency heads, to giving formal evidence to other Parliamentary
committees is entirely consistent with the statutory framework
that governs the agencies.
23. In her speech on the Bill, Vera Baird
MP, then Parliamentary Under-Secretary of State at the Ministry
of Justice, assured the House that action would be taken to deal
with the problem, in the light of the YL judgment,
by the end of the year. Unfortunately, her commitment that action
would be taken has not been fulfilled, something we will be pursuing
in our mini-conference on this issue shortly. (paragraph 91)
The debate on your Private Members Bill on 15 June
last year took place the week before the YL judgment was
delivered. At that time, it was therefore not possible to say
what action, if any, would be required in response to it. In her
speech[10], Vera Baird
reflected upon the various difficulties inherent in a legislative
approach to this issue, and the many different suggestions that
had been made by and to your Committee as to how this could be
achieved. She then concluded[11]:
"So many potential solutions to the problem
from so many sources, added to a body of judicial opinion that
has yet to emerge, cannot be tacked on to a one-clause Bill and
sent to Committee. We are committed to taking action this year
and I hope that my hon. Friend the Member for Hendon will take
comfort from the fact that we will work hard to ensure that the
necessary consultation is undertaken with appropriate dispatch…"
When I appeared before your Committee on 26 November[12],
I laid out at some length the Government's proposed response to
the judgment. In particular, I noted that the Health and Social
Care Bill, which was being debated at Second Reading as I spoke,
would strengthen the regulatory framework to allow the new Care
Quality Commission to enforce the regulatory requirements in line
with the Convention rights in respect of the care of all older
and vulnerable people. Furthermore, we undertook to consult on
how to address the core issue in section 6 of the Human Rights
Act itself.
In addition to this action - all taken before the
end of last year, as Vera Baird promised - we are as you know
currently considering whether interim provision in respect of
the specific circumstances affected by the YL judgment
could be made in the Health and Social Care Bill, pending a comprehensive
approach to the issue.
I therefore do not accept the Committee's suggestion
that the Government has broken any of its promises in this area.
24. The sub judice rule,
by which parliamentarians are bound not to raise issues currently
before the courts in civil or criminal cases, except in certain
limited circumstances, has sometimes affected the work of the
Committee during the year. (paragraph 95)
The Government notes the Committee's conclusion.
However, the sub judice rule is important for the proper
functioning of the legal system, particularly where sensitive
issues are currently the subject of judicial deliberation.
I have also noted the document annexed to the Committee's
report, titled "The State of Human Rights in the UK: Key
Human Rights Concerns". I should like to observe that this
is only a list of concerns, and cannot therefore be a comprehensive
analysis of the state of human rights in this country at this
time; there are many positives on which the Committee has not
touched at all. I do not however propose to address this in detail
in this response, not least because the United Kingdom will be
accounting for its overall human rights record to its peers at
the United Nations next month as part of the new and important
process of Universal Periodic Review (UPR). For the Government's
view of the current state of human rights in this country, I would
therefore commend to you the United Kingdom's submission to the
UPR process[13].
Finally, I must register some disappointment that
your report makes no reference to the programme of work on rights
announced by the Prime Minister on 3 July last year, and confirmed
and enlarged upon both by the Prime Minister and Jack Straw on
25 October. Of course, I understand that you are currently carrying
out an Inquiry into the development of a Bill of Rights in the
UK context, to which both the Secretary of State and I will be
happy to give evidence, and so you cannot arrive at any settled
conclusions. But to omit any mention of the programme whatever
in the section on the state of human rights seems to me to be
a missed opportunity. The Government's oft repeated undertakings
not to resile from any part at all of the mechanisms to protect
human rights introduced in the Human Rights Act form the basis
for this work and I would have hoped you might have felt able
to recognise this commitment, as it bears so fundamentally upon
the work of your Committee.
1 http://www.justice.gov.uk/docs/full_review.pdf Back
2
Oral Evidence, 26 November 2007, HC132-I, Q.57 Back
3
Initially the Human Rights Unit in the Home Office; the Unit transferred
to the Lord Chancellor's Department in 2001, which in turn became
the Department for Constitutional Affairs and part of the current
Ministry of Justice. Back
4
section 9(1) Equality Act 2006 Back
5
http://www.cabinetoffice.gov.uk/secretariats/economic_and_domestic/legislative_programme/guide.aspx Back
6
section 6(3) Human Rights Act 1998 Back
7
as a public authority for the purposes of section 6(1) of the
Human Rights Act; the exception is where section 6(2) of the Act
applies. Back
8
Debates in Westminster Hall already provide an excellent opportunity
for debates on the Committee's thematic reports. Back
9
A copy was forwarded to the Committee at your request in November
2007. Back
10
HC Deb, 15 June 2007, Col 1044 et seq Back
11
Ibid. at Col 1047 Back
12
Supra note 3 at Q.40 Back
13
http://lib.ohchr.org/HRBodies/UPR/Documents/Session1/GB/GBR_GBR_UPR_S1_2008_UnitedKingdomofGreatBritainandNorthernIreland_uprsubmission.pdf Back
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