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Uncorrected Transcript of Oral Evidence
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Dr Hywel Francis MP (Chairman)
Baroness Campbell of Surbiton
Dr Julian Huppert MP
Lord Lester of Herne Hill
Lord Morris of Handsworth
Mr Dominic Raab MP
Mr Virendra Sharma MP
Examination of Witnesses
Witnesses: Mr Kenneth Clarke MP [Lord Chancellor] and Lord McNally [Minister of State, Ministry of Justice].
Q1 The Chairman: Good afternoon and welcome to the first session of the Joint Committee on Human Rights for this new Parliament. Secretary of State, would you like to introduce yourself and your ministerial colleague please?
Mr Kenneth Clarke MP: I am Kenneth Clarke, the Lord Chancellor and Secretary of State for Justice. I will certainly introduce my Lord McNally, Tom McNally, Minister of State at the Department of Justice, who is the lead Minister on human rights, among other things.
Q2 The Chairman: Thank you very much for that. I understand that you wish to make an opening statement. Before you begin, I thank you for providing that statement to us beforehand.
Mr Kenneth Clarke MP: I didn’t know I had done that. It was obviously to make sure that I read it. I was quite happy to take it as read. I was only going to begin informally rather than giving you too solemn a statement. First, I am pleased to be here. I congratulate you on your election, Dr Francis, and we hope to work closely with you. As the statement says, the Government is strongly committed to the upholding of human rights, civil liberties and individual freedoms in this country. We have made that clear in the coalition Programme for Government. I think we have made a pretty good start. There are some things we have done. We have got rid of the identity card scheme; we have issued guidance on the treatment of detainees in view of all the controversy about that, which will be referred to in my Statement later this afternoon on the Floor of the House; and we have announced a review of counterterrorism powers. Our Programme for Government said that we believe that the British state has become too authoritarian and that over the past decade it has abused and eroded fundamental freedoms and civil liberties. We need to put that right and I am sure this Committee will help to press Lord McNally and me to put that into effect.
Q3 The Chairman: Thank you very much. I will begin by asking a very straightforward first question. It has been suggested that there has been a shift from human rights to civil liberties under the new Government. Could you make an observation and comment on that?
Lord McNally: I don’t think so. In my job description I am the Minister for human rights and for civil liberties. I am not sure that there is an absolute definition of either and there is a good deal of overlap when people talk about human rights and civil liberties, so I don't think that anybody should read too much textual analysis into whether we use one or the other when making statements or speeches or giving responses. I see human rights and civil liberties as an interlinking concept and will operate on the basis.
The Chairman: The opening questions relate to human rights and Bill of Rights issues. Mr Huppert wishes to ask the next question.
Q4 Dr Julian Huppert MP: I would be grateful if I could understand from both of you to start off with how the coalition Government's commitment to human rights varies from its predecessor? How will this Government show its commitment to human rights?
Mr Kenneth Clarke MP: In government nowadays references to our obligations under the Convention on Human Rights are made frequently. It is amazing how often it occurs in submissions to Ministers and so on how. Although we have been parties to the European Convention on Human Rights since 1940-whenever-it-was-1948-it now plays quite a large part in our consideration, as does all the British law on human rights, because that has a much higher profile than it ever used to. I think in pretty well every act of Government we are striving to comply with our obligations under the Convention on Human Rights and to live up to the standards we have proclaimed on human rights and civil liberties, and in practice we do so. The coalition agreement puts beyond doubt our commitment to the country's obligations under the European Convention on Human Rights.
The last Government would have agreed that they were totally committed to the Convention on Human Rights, but under the pressure of events-terrorism and so on-my judgement when I was a Back Bencher remains my judgement now, which is that they got the balance between individual security and the security of the country on the one hand and personal liberty on the other wrong. We got more authoritarian legislation and anti-terrorist legislation started to be used for much wider purposes than anybody in Parliament had been told that it was going to be. Was that in breach of our convention obligations? I do not think the last Government were consciously setting out to breach their obligations, but I think they were not always sufficiently careful of them. The new Government is quite determined to be so. You asked to hear from both of us. We are coalition partners and Tom is my Liberal colleague.
Lord McNally: I am not making too much of a party political point on this, but before the election both parties were critical of what we perceived as an authoritarian tendency by the last Government and a tendency, when in doubt, to reach for legislation. The legislation that was brought forward was often a ratchet on what had gone before. I participated in a number of defeats of parts of legislation in the Lords, which were quietly withdrawn by the Government and then miraculously appeared the next time there was a crisis or an incident that for them justified new legislation. We have tried to bring in an approach, as Ken said, of moving back from some of the areas where we thought they had gone too far, such as the ID Bill, but also moving away from the concept that every problem is to be responded to by another piece of restrictive legislation.
Q5 Dr Julian Huppert MP: Thank you very much to both of you for those comments. I found that very helpful. Of course I have some opinions as well. Can I pin down Mr Clarke on a couple of things that have been matters of disagreement when people discuss the coalition? In 2008 you came in front of the Committee and said in evidence that you supported the Human Rights Act and the European Convention as, "an absolute floor as a minimum in defending human rights in this country", and a series of other comments. Do you stand by those and can we be sure that during this Government at least there won't be any retreating from that?
Mr Kenneth Clarke MP: Yes, my opinion has not changed in the slightest and I'm sure we will agree on it. I have just been looking up the coalition agreement, which says, "We will establish a commission to investigate the creation of a Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in British law and protect and extends British liberties. We will seek to promote a better understanding of the true scope of these obligations and liberties." Built into the middle of that is an exception that we are going to ensure that we continue to protect these rights. Although Tom and I are from different parties in the coalition, there is not really much nuance of view between us on any of these issues and that is the basis on which we and our colleagues in government are proceeding.
Q6 Mr Virendra Sharma MP: What do you consider to be the division of responsibilities between your Ministry and the Equality and Human Rights Commission? What relationship do you expect to have?
Lord McNally: I had talks with Trevor Phillips quite recently about that. I see the human rights commission as an absolutely independent watchdog and regulator and I expect the advice of a candid friend from him on issues in Government. As far as I'm concerned, I want to work as closely as possible with the commission as a source of experience and expertise in this area, which I hope will help me in my job.
Mr Kenneth Clarke MP: The commission remains one our three UN human rights institutions in this country. It’s being reformed and slimmed down in the way it operates, but it continues to have that role. We have a key relationship because we are the lead department on these things. That has a recognised role that none of our changes to the commission is changing.
Q7 Lord Lester of Herne Hill: I wasn’t going to ask this, but will do so in the light of what has been said. I managed to negotiate some protection in the Equality Act 2006 for the independence of the commission and, while I think it badly needs reform in some respects, can I take it from what has just been said that its independence will remain, even though the Government will expect value for money?
Mr Kenneth Clarke MP: Yes, I think I can give that assurance, but we’re not the lead department with the commission, I don’t think. Section 9 of the Equality Act 2006 is yours-you got it written into the Bill-and it has statutory duties and they will remain untouched. Its independence-certainly when acting as a national human rights institution-will remain intact.
Lord McNally: As you say, the commission has had a turbulent past, but as far as we were concerned, as an incoming Government, as long as lessons have been learned from that turbulence, they move forward with a clean slate and with an important job to do.
Q8 Mr Virendra Sharma MP: How is responsibility for the oversight of the EHRC shared between the Ministry of Justice and the Government Equalities Office?
Mr Kenneth Clarke MP: It belongs to the Government Equalities Office, but it liaises with us because of our responsibilities for human rights. It belongs to the GEO for pay and rations and so on, unless for some responsibility of my Minister of State, which I have not discovered, which is so devolved to him that he is allocating down. I think the reason that both us are looking at each other is that I don’t think it’s strictly speaking our department’s quango. It wasn’t on our list in the quango hunt recently. I think it’s the GEO that have it but I might be wrong on this.
Lord McNally: No, you’re not. I determined that my main job this afternoon was to say "I agree with Ken", but he is right the Government Equalities Office is the lead department. It is the funding department, but common sense dictates that a great deal of its agenda is an MoJ agenda, and that’s why we keep very close contacts with them.
Q9 Baroness Campbell of Surbiton: I would like to explore with you issues around the Big Society and I’m very interested to see in your written statement that you feel it’s very important that people are equipped to assert their own personal freedoms, and that would include vulnerable groups, older people, and disabled people. Bearing that in mind, could you explain how the Big Society, with its implications of reduced government provision and of increased third sector provision of services by volunteers will benefit disadvantaged groups and vulnerable people?
Mr Kenneth Clarke MP: Obviously, a key part of the Big Society is that we want to engage more widely with volunteers, charities, civil society generally and the private sector, getting a wider involvement from lots of very willing people in building up the big society. This means proper community involvement and more community control at local level, where possible, in how they are delivered. That extends to the way in which we deliver public services, where we hope to open up much more, on a contractual basis sometimes, to the provision of public services of an appropriate kind by people from the various sectors of the economy and the volunteer world. What we are contemplating is a bigger role for the many willing volunteers in our society in day-to-day engagement in the delivery of public services that contribute to the quality of our society.
In the short term we do have a problem because we have a fiscal problem-which obviously we are not going to discuss this afternoon-and we are having to make some very startling reductions in public expenditure. There is an inevitable tendency for large agencies of any kind to start cutting back on the support they have been giving to people outside. Ministers in various departments, on various aspects of policy have been urging local government not to do that wherever possible. But we know the difficulties, we have been urging our own departments not to do that-exactly the same pressures tend to occur inside central Government. Of course, we are devising policies which will reverse that process if we do start setting up a basis for involving volunteers and others in the delivery of services where we were before.
It is preserving the very important objectives of the Big Society, which the Prime Minister does personally feel very committed to, at a time of acute financial crisis and making sure we don’t see a slight dwindling away of support for the bodies that we propose to give a larger and more important role to in helping disadvantaged people.
Q10 Baroness Campbell of Surbiton: Could I push you a little further? Having cut my teeth, and worked in the voluntary sector for about 30 years, I feel I know it through and through. I just want to ask you whether you agree that by relying more heavily on the voluntary sector to provide services-which are really services that enable people to exercise their basic human rights such as getting up, going to bed, drinking, eating and having a life-shrinking the state will inevitably mean that the protection afforded by the Human Rights Act could shrink. Do you think there is a danger there?
Mr Kenneth Clarke MP: I don’t see a direct link really between it and our obligations under the Human Rights Act. I don’t see a direct threat. The idea is that we acknowledge the rights of the individual, including an individual who needs some care or support, to actually have a greater say himself or herself in exactly how public services are delivered and how they access them. We are looking at different models of delivering services that involve people like volunteers to bring in a bit of diversity, bring in some innovation, probably give some choice, some more influence to the people who are helped. We are talking in generalities so it is rather difficult to talk about a move to the specific.
The one we are most involved in at the Ministry of Justice is all the protocols we are still developing and haven’t announced yet on cutting back the reoffending by convicted criminals and offenders and building up a better process of organising rehabilitation for those who can be induced to stop returning to crime. We expect to have quite a varied model of delivery of that service. We are intending to contract-although we haven’t finalised exactly how we are going to do this: we are going to have to pilot it, without doubt-with a whole variety of combinations of statutory providers and volunteers and private companies and others with different models across the country.
If at any stage we started devising policies of which people could seriously say that we were damaging the human rights of the individual people we were trying to support, that would put a brake on it. If that turned out to be an accurate argument, it would put a stop to that particular development of policy. But the whole Big Society doesn’t threaten human rights in any way, as far as I can see.
Lord McNally: Neither does anybody, I think, put forward the argument that there is a certain level of public expenditure that safeguards human rights. As we are faced with a retrenchment of public expenditure, it is incumbent on us to look at where it impacts, with human rights concerns in mind, but there is no magic figure that’s going to guarantee or undermine human rights.
Q11 Dr Julian Huppert MP: One aspect of the Big Society that I find quite interesting is what seems to be an increasing reliance on faith groups to provide services rather than on the secular services that we have become so used to having in this country. What steps will you be taking to make sure that this doesn’t lead to discrimination in services on the basis of religion, or the lack of religion, sexuality and so forth?
Mr Kenneth Clarke MP: I don’t think either of us have found that impinges on anything that we’ve done. My own view-not as a government politician-is that I have no objection whatever working with faith groups, unless they turn out to be discriminatory or are advocating some divisive view of the world in delivering the service. But they don’t necessarily do so. We all come from different spectrums but often to the same conclusions. In the kind of reforms that Tom, I and my colleagues in the department are looking at in the fields of criminal sentencing and rehabilitation, I find some of my strongest allies are from the Christian right. That is because they tend to share my view of problems in society and of the proper role of punishment followed by rehabilitation. The fact that they start from a rather different starting point than I do doesn’t make a difference. I’ve never had anybody advocate that we should have programmes-apart from the chaplaincy service-only for Christian prisoners. I welcome faith groups. Some of the very best organised volunteer bodies have a faith basis and we should work with them. I have never encountered a situation where they started becoming discriminatory. We would have to stop working with them if that was the way that they wanted to work.
Lord McNally: On the point that Ken makes on, for example, the prison chaplaincy, it’s found to be extremely useful to have not only pastors from all faiths going into prisons but mentors from faith groups helping with rehabilitation as well. During my misspent, youth I always gave money to the Salvation Army because I thought that I might need them one day. A lot of what I find myself doing in this job goes deep into the culture of this country. One of the factors of the culture of this country has been how so often it has been the faith groups-the Sally Army, the Quakers and others-who thought of the Big Society even before our Prime Minister did, in terms of voluntary work and social reform.
The Chairman: I am anxious not to open up a long discussion on this. We might follow up with some letters to you on it. I take it from both your answers that you are open-minded if not agnostic on this question.
Q12 Lord Lester of Herne Hill: There is a problem in contracting out. In a case called YL, the Law Lords decided by a majority, in my view wrongly, that the Human Rights Act obligations did not apply, for example, to care homes and therefore regulations had to be made. The previous Government shirked the reform that was necessary to clarify this. This Committee repeatedly asked them to make it clear that when a private contractor is performing public functions they should be as bound by the Human Rights Act as a public authority. At the moment, although the Ministry of Justice, to my certain knowledge, tried to persuade others to do something about it nothing was done.
It would be unfair to ask for an answer to the question that I am going to put right now, but would you carefully consider whether the time might have come now to deal with that technical problem? Although one is in favour of contracting out, it is obviously important that private contractors performing functions that would otherwise be done by the state are subject to the same obligations so we have a level playing field and people are properly protected.
Mr Kenneth Clarke MP: I am aware of the problem. I think the convention refers solely to "public authorities" but it doesn’t define "public authorities". So far we have relied on courts-British courts or the Strasbourg court-to decide in a particular case whether an organisation is a public authority. I am familiar with the care home case that you cited, where the court decided that a privately owned care home was not a public authority. The reaction to that was that the Government and Parliament legislated to bring them within the compass. That will come up again. I do agree with you, Lord Lester, that we are going to find that this crops up more frequently if we do start contracting out or contracting with people from wider sectors of the economy.
We will look at it, but with some care. There is a slight danger for people who want to start including in public authority proposals of this kind any organisation which is somewhat unpopular and gets into conflict with its consumers sometimes. I hate to cite utility companies-they are private companies, they are accountable to their shareholders, they do work in a competitive market. I can see on the one hand that you can switch if you do not like your utility company. On the other hand, I know a perfectly strong argument some people produce saying that human rights can be compromised by the behaviour of some particular utility company. It is an area where we will tread with care. Meanwhile, we are still dependent on courts deciding individual cases and making a ruling. I take on board that we haven’t turned to this, because we have got so much we are putting out rapidly by way of policy and public spending revisions, but I will be reminded by you and take your advice. We are going to have to address it otherwise we will keep getting aberrant judgments that Parliament will take a view on one by one as we go through.
Q13 Lord Dubs: That leads logically to my question. In the opening remarks that you helpfully sent us, you refer to business and human rights and mentioned that you were looking to see how Government could learn from business and vice versa. I wonder what that means in practice. Does the Ministry of Justice intend to involve other government departments such as those concerned with business in this particular exercise?
Mr Kenneth Clarke MP: As I said, it is pretty all-pervasive in Government. Two big changes seem to me to have occurred-at any time I shall start lapsing into comparisons of what it was like before-with the kind of submissions and the meetings and the process that I am now engaged in when I find myself back in the Cabinet again. Human Rights-perhaps because the controversy about it has given such profile to the subject over the last decade-and judicial review now feature more heavily in practically every submission I ever see in front in me on anything than they ever did before, which I personally think is fine. That was why people always advocated that we bound ourselves by the convention and then why the courts developed the principles of judicial review.
So if you go to the Department of Business or any other department in Whitehall, I think everybody is conscious of the fact that you have to comply with the Convention on Human Rights. You have to be mindful of the risk that someone is going to seek judicial review of your decisions and give some thought to whether you are going to be judge-proof on this occasion or whether you are going to be successfully challenged.
There is no readacross all the time. Other departments don’t consult ours-or not as far as I am aware-if they have a human rights issue. If they do they probably consult Lord McNally. As the Government has bound itself, as our predecessors did, to the convention, it is pretty firmly institutionalised now in the processes of government.
Lord McNally: The department is proactive in this area. We do produce guidelines for departments and for business and we are in touch with the commission itself, which also has a proactive educational role. One of the things that Ken and I agree about the Human Rights Act is that there is a need for education and the understanding of it, because so often it can be misrepresented, so we are updating the guidelines for the private sector and we will be in discussion with the commission about their education role. I should also say that a lot more firms take corporate social responsibility very seriously and are open to advice in these areas.
The Chairman: Could we now move on to the UK Bill of Rights? Could I ask my Committee and, with respect, Secretary of State-this may sound a bit ungrateful-your answers are very full and we have a very large number of questions. I am aware that you have time constraints more than us.
Q14 Lord Dubs: May I pick up something you said earlier Mr Clarke about a Bill of Rights? I am trying to understand what the Government’s policy is. Various things were said before the election and it’s not totally clear how you’re going to move forward. For example, you made a very positive statement that replacing the Human Rights Act with a Bill of Rights might be xenophobic and legal nonsense. More specifically, what would any change in the Bill of Rights under the coalition Government mean in terms of the Human Rights Act? What is the balance between the two?
Mr Kenneth Clarke MP: That is a quote-I am not sure I remember the occasion. I don’t retract the quote; it was my opinion at the time. My only mitigation is that it was my reaction to a particular answer that I had heard on the radio when I was driving along by one of my colleagues-I’m glad to say I can’t remember which-when I was on the Back Benches. The particular case being made for the Bill of Rights on the radio slightly enraged me, so when I got doorstepped getting out of my car in London, I did give some particular comment on that particular thing. My views I have already established on the convention.
Where we are now is with the coalition agreement, which says "We will establish a Commission to investigate the creation of a British Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights…" I won’t go on; I’ve read it once already. That’s where we all are. That was carefully negotiated-not by me; I don’t think Tom was involved in the negotiations of it-that’s what we’re signed up to and I’m quite content to sign up to that. At the moment, we’re working on the basis that in 2011, when we’ve got time in the Deputy Prime Minister’s office and ours to move on to do this properly, we will get down to the terms of reference of the commission and decide how we’re going to set it up.
Lord McNally: Can I just say where I come from on this? I strongly supported the Human Rights Act. I think it was one of the real achievements of the last Government. But advice from colleagues came in two directions; one was that the Human Rights Act was a precious vase that you kept on a high shelf and never touched, but other colleagues, who were equally committed to the concept of human rights, said no, it could be looked at; there are ways that it could be improved; there are things that could give better guidance to the judges; and we could do more to educate people about the realities of the Act. So I don’t think that the commitment that the coalition have made to look at it should be seen by those who want it kept on the high shelf as anything other than a very practical look at how it has worked and whether there are improvements that could be made.
Q15 Lord Dubs: Thank you. May I move on to the Bill of Rights as regards Northern Ireland? You will know that in the Belfast Agreement the case was made for having a separate Bill of Rights for Northern Ireland. Where does the Government stand on that?
Mr Kenneth Clarke MP: We both have conversations with our Northern Ireland colleagues. We are parties to the Good Friday Agreement and everybody wants to continue to give effect to the Good Friday Agreement both in its letter and its spirit. We have made such progress in Northern Ireland. I think that the Secretary of State for Northern Ireland would agree with me that the problem is getting an adequate consensus to proceed and give effect to this. The parties in Northern Ireland, on both sides, continue to accept a commitment to a Bill of Rights for Northern Ireland but they have very sharply differing views on what it should contain. As in all Northern Irish politics, there is a limit to how far you can proceed ahead of the parties unless and until there’s some more sign of some consensus growing.
So what we’re at the moment proposing is to get around to our commission. Our commission will be set up with some terms of reference-yet to be settled-to investigate the prospects of a United Kingdom Bill of Rights that applies with all the conditions of the coalition agreement. I don’t think that you can start with Northern Ireland unless and until there is some sign that it is possible to produce something that could actually be given effect to in Northern Ireland. It’s no good using one side or the other to use a majority to impose its version of a Bill of Rights on the other.
Q16 Lord Dubs: I understand fully the difficulties in Northern Ireland. There isn’t agreement across the parties on a Bill of Rights. But I’m seeking to pursue the principle that there should, in the end, be a separate Bill of Rights for Northern Ireland as set out in the Good Friday Agreement, rather than a Northern Ireland appendix to a Bill of Rights for the United Kingdom as a whole.
Mr Kenneth Clarke MP: If we get consensus on its content, we might get more consensuses on exactly what form people want to give to it. It may be that, if we start off with our consideration of a United Kingdom Bill of Rights, in the broadest sense, that might provoke some movement in Northern Ireland and might take us one way or the other, either to the Irish being able to make progress on their separate one or them wanting to come to ours or whatever. But we are very cautious about the commission that we are proposing to set up being a vehicle that’s likely to lead to faster progress on this unfinished business from the Good Friday Agreement. I personally think that it is hopeless-or, not hopeless, but not likely-that we are going to make great progress until there is more consensus in Northern Ireland. I don’t think that our commission is going to be the vehicle that is going to promote that. But you never know. We’ll see what the reaction is when we get it under way.
Q17 Mr Dominic Raab MP: Returning to the position in the UK, you’ve been reviewing the legal aid conditional fees and other drivers of the compensation culture-for want of a better phrase. Will you ensure that the terms of reference for the commission will look at the operation of Sections 2 and 3 of the Human Rights Act and the extent to which judicial legislation may have contributed to the compensation culture and equally the extent to which the UK might better avail itself of the margin of appreciation?
Mr Kenneth Clarke MP: We have just had David Young’s report on the compensation culture. I don’t think that he dealt with this. In what way do you think that articles 2 and 3 have been promoting the compensation culture?
Q18 Mr Dominic Raab MP: The way in which judicial interpretation of Strasbourg case law, the effective importation of a doctrine of precedent into UK law that doesn’t exist at the Strasbourg level, has helped drive it in a number of cases, both in court and outside of court. Think back to the methadone case when a whole range of prisoner claims for the right to methadone were effectively settled out of court and it was very much on the basis that it was regarded now as required by the Human Rights Act. That went further than Strasbourg. Do you have a view on these kinds of cases both judicially and outside of court?
Mr Kenneth Clarke MP: I personally don’t have a general opinion on that. The methadone case, where prisoners were-as you say-claiming compensation on the basis that they had been damaged by being taken too abruptly off drugs when they had a firm drug habit and they should have been put on methadone at least as an interim measure, was based partly on standard British law of the duty of care that prisons undoubtedly hold to the prisoners inside the prison and on the negligence, as established by expert evidence, of taking people straight out of a strong heroin habit and putting them cold turkey into a rehabilitation unit.
I suspect that those cases might have succeeded with or without the European convention, but I’m glancing nervously towards Lord Lester because I haven’t read the judgment recently and I’m just remembering where we got to in the methadone case. We do have to guard against the Human Rights Convention being invoked in all sorts of trivial cases, and certainly in the case of prison law where it’s quite easy for prisoners with nothing else to do to be persuaded by a solicitor that it would be a good idea to try an action for some breach of their rights inside the prison. It goes back to what Tom was saying a moment ago about the understanding of the Act; there is more nonsense by way of claims than there ever is by way of judgments. I think it’s people claiming some kind of stretch to the meaning of the European convention beyond what they’re actually going to succeed in if they take it further.
Lord McNally: I think this is one of the key things that perhaps a commission could look at. That’s why I said in my earlier remarks that some of the people who have talked to me about it have said that the judges could do with a little guidance on how they interpret and I think that it would be to the benefit of the reputation of the Human Rights Act if we could clarify some of those matters. We haven’t drawn up the terms of reference, but that’s certainly an aspect that could be looked at.
Q19 Lord Lester of Herne Hill: Could I just say, since I was referred to, that I think that the late Lord Bingham said that the judges had, if anything, been slightly on the conservative side of their interpretation of the convention. I think that that was correct. My experience is not that there has been "judicial legislation", in the sense that the judges have usurped the functions of the other two branches of Government, but that British judges have been very careful not to do so-and I commend them for that.
The Chairman: Could we now move on to the comprehensive spending review and human rights?
Q20 Lord Morris of Handsworth: The Commission for Equality and Human Rights has maintained more than a passing interest in respect of the outcomes of the comprehensive spending review. Could I ask both Ministers to what extent was the possible impact on human rights considered in the process of the CSR?
Mr Kenneth Clarke MP: I am following this argument and the commission has raised it, but we are not carrying out a human rights assessment of the whole public spending review, which covers a vast range of a whole area of Government. We are carrying out an equalities evaluation, which we are obliged to do, to see what the impact is on particular groups. As far as human rights is concerned, I can only say it just is part of our constitutional law now when it comes to enacting particular things. So each department negotiating with the Treasury, or each department thinking of what policies it’s going to develop to implement its programme of spending reductions that it has agreed, has to take account of whether it’s going to be able to comply with its human rights obligations when it does so. Part of the advice that will go to Ministers is to say whether or not it complies with human rights; if you’re going to legislate you’ve got to certify that it complies with human rights. But I don’t quite see what the case is for taking the whole spending review-the public spending of every branch of Government-and saying we’re going to do a human rights assessment of whether that is in breach of our convention. It’s just too general, too broad.
Q21 Lord Morris of Handsworth: Let’s take a specific area; disability allowance, for example.
Mr Kenneth Clarke MP: I realise we are assessing people with, for example, various forms of disability allowance. It strikes me, having not been part of the decision, but being aware of it and obviously having consented to it, as part of the collective policy-making of Government-and actually being in support of it; I don’t have any doubts about it-that that is the kind of judgment that Governments have to make, about the eligibility for benefit and checking the eligibility for benefit. So if anybody wishes to start arguing that this is impinging on some human right, either in general terms or in terms of an article of the European Convention, they’d have to make the argument, but I don’t see it myself. It’s trying to stretch the meaning, it seems to me, of human rights legislation into areas that are essentially ones of social policy, public finance and eligibility for benefit.
Lord McNally: I think it goes back to the point I made earlier that there is no level of public expenditure that is compliant with human rights. Public expenditure decisions have to be taken and of course the department will keep an eye on anything that would look like a flagrant disregard of human rights. Yesterday, we announced the legal aid decisions, moved partly by budget and spending constraints, and partly by determination to, as it were recalibrate the legal aid system. That will move legal aid away from certain areas. I don’t think that can then be sustained as a breach of the human rights of the persons who will no longer qualify for legal aid. There are whole ranges of public expenditure where there has to be a political judgment by the Government of the day. I think it would be very dangerous territory indeed if it then became tested against a very vague concept of the human rights in any one particular area.
Mr Kenneth Clarke MP: Legal aid is a good example, having done exactly what Lord McNally has described. In what we have put out for consultation, we have said that we are contemplating a kind of fallback provision-an exceptional funding arrangement for exceptional cases. The exceptional cases we have described are those where we would have to comply with the legal obligation, either British or European Convention obligations. If we encounter cases where people are genuinely able to argue that we are denying access to justice-in some particular circumstances for a particular litigant or litigants-we have designed a fallback provision precisely to cover that. Although, I have to say we can’t contemplate such situations arising but they will almost certainly because you can’t foresee everything in the world of litigation.
Q22 Lord Morris of Handsworth: I note your answers and I am very conscious of time but I am not clear from what you have said whether there was any human rights impact assessment on any aspect of the comprehensive spending review.
Mr Kenneth Clarke MP: There was not a human rights impact assessment on the whole spending review. Departments don’t produce human rights impact assessments on their whole policies: they produce equality impact assessments, which we all have. Again, I repeat and I am sorry I am being slightly long-winded on this: every time you take a policy decision you have to bear in mind whether or not you are complying with your legal obligations, including the convention. People will point back to you if they think that you really have got to address that question, because you might not be doing so. That is true in every other department in Government.
Q23 Baroness Campbell of Surbiton: Let me take this a little bit further, because this is a very interesting notion of when withdrawing economic rights becomes a fragrant disregard of a person’s right to life, liberty, family life and so on. You will both be familiar with the UN Convention on the Rights of Persons with Disabilities. Now, it is my understanding that probably there wasn’t an equality and human rights analysis of a part of the CSR outcome that related to people’s right to freedom of movement and family life for those living in residential care when it was decided that the Mobility Allowance would be withdrawn. I was just wondering whether or not you can explain the Government’s view about whether the removal of the mobility element of the Disability Allowance-it is a small allowance but a vital one for that human right-is compatible with the Government’s obligation to respect and protect the rights of persons with disabilities under the UN convention. It is quite small but quite catastrophic.
Mr Kenneth Clarke MP: I don’t think it is a breach of the Human Rights Convention and I don’t think anybody in our Department has intervened in Iain Duncan Smith’s responsibility for that allowance. As a member of the Government, I have taken this to be a correction of an anomaly, whereby certain people who were in residential care got the mobility allowance with their disability benefit, and others did not, rather depending on how they got support in the first place, whether they had come in via NHS or via the local authority or their own route. I am quite open to arguments and won’t give any further off-the-cuff decisions and I’m sure Lord McNally’s open to arguments. I see this as a decision about priorities rather than anything more fundamental-the logical construction of a benefit, and if you are having to reduce a budget, the extent to which this is a legitimate way of getting rid of a chance consequence of the way in which the benefits have been put together. People in residential care homes do have access, whether they receive the mobility allowance or not, to a certain amount of support which usually enables them to have a certain amount of mobility, and it is rather difficult to understand quite why, under the previous system, people in apparently identical need got different levels of benefit. That is as far as I will go because my colleagues in the Department for Work and Pensions have more up-to-date expertise than I have in the benefits system and the changes they have made, but certainly, so far, I have not really felt that there is any human rights issue in that. There’s a perfectly serious debate to be had about whether or not it is a fair change to make, but not, I think, a question of human rights.
Lord McNally: Like we’ve had to go through in the MoJ, where we had to find £2 billion of savings, Work and Pensions have had to make tough decisions. This one removed an anomaly. They would argue, as we would argue, that these changes enable us to focus very finite resources on those who need it most. But every time you make those kinds of adjustments, I don’t think you can immediately cry human rights. It’s crying wolf in those circumstances. These are tough decisions in departments that are constrained by the realities of the financial situation we find ourselves in, but I don’t think they’re human rights decisions.
Q24 Baroness Campbell of Surbiton: If analysis was not made, but it was made now, and if it was reviewed and it was considered that it was in violation-that it was an equality issue-that would be something to consider, I presume.
Mr Kenneth Clarke MP: There will be an equalities impact assessment. It is very difficult, obviously, in benefits that are expressly designed for the disabled, which can only, by definition, impact on disabled people. Everybody does equalities impact assessments. They are getting quite lengthy. Practically everything you produce has a rather elaborate equalities impact assessment. Not surprisingly in the field of public expenditure, it is inescapable that Governments concentrate a lot of their resources on the poor, the vulnerable, minority groups, and the disabled and so on. You cannot produce an equality assessment usually that doesn’t made it quite clear that you are having an impact on those groups when you alter a particular benefit, or you start cutting back in a particular area. That doesn’t necessarily mean-I agree with Lord McNally-that immediately human rights are raised by these difficult decisions.
Q25 Lord Lester of Herne Hill: I fully understand why you’ve had to make such big cuts in the legal aid for civil justice and I also note the exception you’ve made for judicial review and the longstop in human rights cases where there’s a discretion. What troubles me is that you may be storing up a lot of trouble in the way it’s been done, because the right of effective access to justice is obviously guaranteed by the convention, and I would like if I may to give one example to serve for all. In your consultation paper that you published yesterday, when you are dealing with education, on pages 64-5 you clearly set out your reasons for treating education issues as relatively less important than other issues like physical safety and so on, and liberty. Then you decide in that paper that legal aid is going to be withdrawn altogether from, for example, the Special Educational Needs Tribunal and appeals from it. What I would like to put to you is this: Article 3 of the protocols to the convention guarantees the right to education as a fundamental right. The determination of that civil right has got to be by independent courts and there must be effective access to them. I wonder if you could reflect on the difficulty for yourself by having this blanket exclusion which will lead inevitably, it seems to me, to litigation where somebody says, "We can’t get legal aid, we can’t get effective access to justice, this is a breach of our Article 6 rights etc". If you just have your longstop discretion, no one will know how it’s going to be exercised in that kind of case. What are you going to do about legal certainty and effective access to justice? I’ve only given one example, but of course I could give one or two others as well.
Mr Kenneth Clarke MP: That is an interesting question. As you anticipate, I rely on the exceptional provision. Article 3 needs to be complied with-the right to education for any citizen is something that has to be guaranteed by the state, and will be so. If anybody needed access to the courts to enforce access to education which was being improperly refused by some public authority, then we would have to give some legal aid if the person qualified on means for the necessary support by the taxpayer. With the examples otherwise you’ve cited, if you look at the limited amount of education litigation we have at the moment, it does include things like exclusion from school because of the behaviour of the pupil. It does include getting a place allocated at a school of the parents’ choice and of course, the special educational needs are extremely important. The judgment we made was that these are essentially educational judgments that are best made by the relevant education authority, or the school governors, or best debated by educational experts, because what you’re talking about is the behaviour of children or the best form of support for a particular problem, and all the rest of it. We don’t think that most of these cases are best resolved by two teams of lawyers litigating quite often about the process, rather than the substance, trying to sort out these highly important issues for the individual, but issues that probably shouldn’t be solved by litigation. That was why we took education out. Special educational needs is a difficult one because I don’t underestimate the importance of that to children and to their parents. We all know people get very passionately involved, but the approach that gets taken is sometimes pretty legalistic and it ought to be educational. There have been cases, I cited one when I gave my statement yesterday, where I found myself listening to a judgment in the Supreme Court on a special educational needs case. Now that’s very important-obviously someone had been given leave, so it was an important issue involved-and the thought went through my mind at the time, that if all the money that’s been spent on this litigation had been spent on some educational purpose, arguably it would have been of more social value than everything being steered through the law courts. That’s why I took education out, but then we will find some cases where you will say, "Well, Article 3’s being invoked here, and then you’ll have to provide some exceptional funding if you’ve somebody who hasn’t got the resources to bring the claim". We’re consulting on it, so I’ll listen to your views, Lord Lester, if you get round to debating that with Lord McNally in the Lords.
Q26 Lord Lester of Herne Hill: Could I just clarify my question? I was only focusing on access to these tribunals, that’s all. When you’ve got tribunals that have been set up by the state to give independent evidence-in this case a Special Educational Needs Tribunal and an appeal-it seems to me that there must be effective access to those tribunals, so long as we have tribunals, to determine those rights.
Mr Kenneth Clarke MP: The other argument that I suggest about those tribunals-
The Chairman: Order. With respect, Secretary of State, we could have a long discussion on this particular matter. We have a large number of other questions that we wish to pursue. We will write to you on this particular issue. Could we now move on to security, justice and rights?
Q27 Mr Dominic Raab MP: Secretary of State, control orders have been widely criticised for undermining the basic principle of British justice that you have to be convicted of a crime to face a serious punishment. I appreciate that this is a Home Office lead but, as it is really about our justice system, might we take this opportunity to ask for your view on this?
Mr Kenneth Clarke MP: As you know, it is a Home Office lead, and Theresa May is the lead Minister in a wide-ranging review, which the Government is carrying out, of all this anti-terrorist legislation. I am involved in that and I participate in that. I have been submitting my views and no doubt will continue to do so. But we are going to have to wait for the resolution of it. I do not think I can start debating it in front of the Committee. I have already cited what we had in the coalition agreement: that we think the last Government went too far in an authoritarian direction and we have got to get the balance right between protection of our safety and protection of our individual liberties. An extremely careful review is taking place. I think Theresa hopes to bring it to a conclusion in the fairly distant future, and then we will put out some agreed proposals.
Q28 Mr Dominic Raab MP: May I take the opportunity to follow up with a question on a security-related issue, but one that squarely affects the courts? The current and the previous Directors of Public Prosecutions argued that it was possible to devise a viable system of judicial oversight so that we can use intercept as evidence in counterterrorism prosecutions. I wonder whether you agree with their assessment.
Mr Kenneth Clarke MP: I am aware of that opinion. I am tempted to engage in a debate with you. It is a very live issue which the Government are carefully considering. My own personal views, before I was involved in this discussion, are on the record because I used to speak about them in the House of Commons. I don’t think I ever have on that, but I am aware of that suggestion. Of course, the Government declared in opposition that we were going to seek to find a way of getting admissibility of intercept evidence, which the previous Government kept looking at again and again and was not able to resolve. We are engaged in the process still.
Q29 Mr Dominic Raab MP: Finally, the coalition programme for government pledges to strengthen trial by jury. We assume that will be assessed when we come to seek proposals for a freedom Bill. This year we have had the first criminal trial to remove a jury for 400 years, using Section 44 of the Criminal Justice Act 2003, and the exception for jury tampering. I wonder whether that might be something that will be assessed, reviewed and hopefully repealed as part of the freedom Bill. Could you give us your view on that?
Mr Kenneth Clarke MP: I am trying to think how much I can anticipate the freedom Bill. We are unlikely to change that. We have had only one such trial. There are extreme cases of jury tampering. I personally am interested in your view on this and on the freedom Bill, Mr Raab. I don’t think anybody has criticised the trial in that particular case. It’s got to be fairly extreme, but if the suggestion is that violent people are intimidating a jury, there can be cases where the only safe way to proceed is to have a judge without jury. Mr Justice Treacy, in that case, I think, has not been subjected to any criticism for the way he carried it out. Do bear in mind that, in the Troubles in Northern Ireland, things became so bad that we had to suspend jury trial altogether. Nobody wanted to suspend jury trial, but if juries were faced with the choice-I’m not saying in Mr Justice Treacy’s case, but in some of the old Northern Irish ones, either you produced the right verdict or you were dead-you couldn’t really have a very satisfactory jury trial.
I personally believe, and I think the Government has decided that we are not going to alter the provision on jury tampering, which has so far only been used very sparingly; I think I’m right in saying it has only been used in one case only.
The Chairman: We now move on to the Public Bodies Bill.
Q30 Lord Lester of Herne Hill: I would like to take this very shortly because I’m involved in discussions with the Cabinet Office on this. I don’t know, therefore, to what extent there is much point in going into it right now. Am I right in assuming that the Ministry of Justice has been much involved in considering the human rights implications of that Bill?
Lord McNally: We are involved with any department that is producing legislation that asks our advice. As you rightly say, we had a stimulating Second Reading of the Bill in the House of Lords and there is every indication of an even more stimulating committee stage. What one can rely on is that the House of Lords will carry out its usual advisory and revisionary functions as far as this Bill is concerned.
Q31 Lord Lester of Herne Hill: Thank you. Are you in a position, and I doubt that you are yet, to reveal the way in which the Government is moving in order to ensure that the rule of law and respect for human rights are incorporated into the Bill in the exercise of Ministerial powers? As you know that’s one of the issues raised across the House. Is the question premature at the moment?
Lord McNally: I think it is premature because one of the things that will be looked at is how the Bill emerges from the House of Lords.
Q32 Lord Lester of Herne Hill: I was really referring to before next Tuesday when it goes into Committee. I think there are discussions going on right now, but it may well be that they’re not with the MoJ.
Lord McNally: Not with the MoJ.
Mr Kenneth Clarke MP: We are not in the lead on this.
The Chairman: Can we move to the relationship of Government with Parliament and this Committee?
Q33 Lord Morris of Handsworth: What is the Government doing to increase the involvement of Parliament in the implementation of the European Convention on Human Rights, as mandated by the Interlaken Declaration and indeed the action plan that went with the declaration?
Lord McNally: We are very eager to produce an annual report which would enable Parliament to see our progress on this and which we hope would provoke a good exchange with this Committee, with Parliament and in general. No firm timetable has been set on this, but we think that we could usefully produce such a report by next summer, and we think that that would be a good signal that we took our responsibilities under Interlaken very seriously.
Q34 Lord Morris of Handsworth: Can we take it, then, that the Government is generally in favour of parliamentary involvement in the whole aspect of the declaration?
Lord McNally: Absolutely. I always think I am a temporary Minister but, I hope, a lifetime parliamentarian and I do really seriously believe that the more Parliament buys into this process, the more secure it is.
Q35 Lord Morris of Handsworth: Just by way of suggestion, can Parliament therefore look forward to more Government-sponsored debate on the issue both in the House of Commons and in the House of Lords?
Lord McNally: I can only speak for the House of Lords. I can only say that Baroness Anelay would kill me if I made any commitments as to use of Government time. That would be a matter for usual channels.
Lord Morris of Handsworth: Constitute usual channels between both of you.
Mr Kenneth Clarke MP: Likewise in the Commons. I don’t think Sir George Young would take kindly to my promising debates. I must say the Government is going in for some very worthwhile parliamentary reforms and the Leader of the House we’ve got, George Young, is an old campaigner for more powers for Parliament in terms of scrutiny of legislation, control of the executive and having proper time for debate. At the moment it’s the first six months of the Government and not the best time to judge this, because you come in and you find that there are so many decisions that have to be made in a financial crisis and so much policy that you want to introduce, that we’re fighting like mad for parliamentary time for anything already. I think that’s a good thing. When George and I used to write reports recommending more careful parliamentary scrutiny, I think we both wanted to go back to an era where different departments of Government would be struggling to get the volume of legislation through that they all aspire to do. We weren’t looking at it more carefully. General debates are being a bit squeezed out at the moment-obviously the supply days are still there. When the business managers are able to accommodate debates in response to adequate demand, Lord McNally and I have no objection to debating in either House.
The Chairman: Could we now move on to the implementation of human rights judgments, particularly with regard to prisoners’ voting rights?
Q36 Lord Dubs: I wonder if I could raise the vexed question of prisoners’ voting rights. Could I say, and I’m sure I’m not allowed to say it, that as long as there’s a coalition Government, I think you two are the good guys, okay? Would you care to comment on the issue of prisoners’ voting rights, which I know has raised a wave of hysteria out of all proportion to the issue?
Mr Kenneth Clarke MP: Shall I kick off? The hysteria is rather late coming. The relevant judgment is five years old. To my recollection, the previous Government carried out at least two consultation processes on how they were going to implement it. I have no doubt that because of some of the reaction, in the end they came to no conclusions, so we do have to come to a conclusion on this. We have a mounting number of cases against us and we have to come to some conclusions, otherwise we’ll have the absurd situation whereby we’re still considering whether or not to comply. We’re not there yet, but some court will start awarding damages to all these people making claims against us. If there’s one thing that will stoke up public fury even higher, it is if people start getting awarded damages for some breach of their human rights by not being allowed to vote. We’re having to consider how to implement the legal obligation and I think there’s no point in getting away from the legal obligation. The fact is the extent of the legal obligation is a little confused. We’ve now got two judgments and various comments both from British and European courts, but two European judgments that aren’t really consistent with each other. Compliance with these judgments by different members of the Council of Europe has been very varied. We’re by no means the only one that is a long way behind, but we’re going to have to come to a conclusion as soon as we can do so. The hysteria was slightly provoked by some rather extreme fears that people had in Parliament. I have to be cautious because the Government has to take a considered view on all this, but people who had the idea that their local government elections were going to be dominated by rapists, murderers and all the rest of it were taking a rather strong view of where we’re likely to go. It’s the blanket ban on all prisoners having the vote that was not upheld by the European Court. I hesitate on this occasion to go into the nuances of what lies below that-that has yet to be decided. I heard some of the fears expressed in the Chamber of the House of Commons. I didn’t think anything was going to occur of the kind that was causing such alarm to quite a lot of my colleagues.
Lord Lester of Herne Hill: I don’t know whether you know this, but Cyprus and Ireland, which are not directly bound, overnight implemented it simply by giving postal votes. Hong Kong in its own way did, and for some reason there was no fuss in those jurisdictions at all. Of course the Committee of Ministers will be considering this in a couple of weeks’ time, and indeed some of the officials who are on that committee on the enforcement mechanism are sitting behind you. Will you be reporting to them for what’s called the DH meeting on your progress?
Mr Kenneth Clarke MP: Yes. I hope we make progress in the next fortnight but I can’t guarantee that. I am aware of that. There will be a fuss here. I have not the slightest doubt. On the actual mechanics of voting, I don’t see any problem at all. Prisoners on remand can vote now. Not many of them bother to do so, but prisoners on remand do vote by post if they want to. Facilitating the vote is not really the problem. They are usually registered in their home constituency; they are not all registered in the prison where they happen to be currently and involuntarily residing. A remand prisoner just casts a vote if he or she wants in his or her home constituency. I don’t think anyone’s ever complained about that, probably because people aren’t even aware of it. Of course, there is no doubt that they should be allowed to vote, because they haven’t been convicted of anything; they are being held pending trial.
Q37 Lord Bowness: Lord Chancellor, Lord McNally, I apologise for arriving late. There was a general welcome, including from the predecessor Committee, for Part 1 of the Coroners and Justice Act 2009, and you have recently announced that the Government intends to improve the coroners system in line with most of the policy of the Act, but that you intend to abolish the provisions of the office of the Chief Coroner. I wonder if you are able to tell us exactly which parts of the Act will be commenced and how those improvements will operate better without a Chief Coroner, and perhaps also where the functions of the Chief Coroner envisaged by the Act are to go. Are they to go to the Ministry of Justice? Are they to go to parts of the Home Office or parts of the judiciary? I think these are questions that people are asking and I would be grateful if you could help us.
Mr Kenneth Clarke MP: We are implementing measures to get rid of procedural problems like the jurisdictional problems which inhibited the ability to transfer inquests and so on. We can implement all those. We decided we didn’t want to implement the office and the appeal mechanism, partly for public spending reasons and partly because this is becoming highly elaborate. It goes back to the litigious society again. Inquests now quite properly inquire into the circumstances of the death, not just the cause of the death, but it is getting wider and wider. There is an inquest at the moment that is trying to make inquiries into the activities of the intelligence services lying behind the 7 July bombs. And we decided that to start adding to this a process of appeal and the Chief Coroner was becoming elaborate. Given that we are having to cut back expenditure, even in the Ministry of Justice, in important areas like legal aid, we decided we’re just not going to proceed with this. We intend to proceed with ensuring standards and trying to get conformity of practice and addressing some of the undoubted weaknesses in the coroners system. We intend to improve the coroners system and the intention is that that will come into the Ministry of Justice; we will seek to discharge those obligations rather than having a whole new office of Chief Coroner for it. And briefly that’s where we are now. Obviously we’ve now got to proceed and implement this.
Q38 Lord Lester of Herne Hill: The Freedom of Information Act is regarded as a model across the world in many other countries. What action is envisaged now to give effect to the coalition Programme for Government to extend the scope of the Freedom of Information Act and provide greater transparency?
Lord McNally: We are in negotiation with colleagues with the intention, in reasonably short time, of publishing areas of extension of the Act. I can’t go into more specifics but our commitment remains that we will extend the scope of the Freedom of Information Act as is set out in the Coalition Agreement.
Q39 Lord Lester of Herne Hill: Will the Information Commissioner be involved in the process? Will he be consulted about what is envisaged?
Lord McNally: I see the Information Commissioner very regularly and do indeed consult him about the scope and workings of the Act.
Q40 Lord Dubs: I wonder if you could comment on the use of indeterminate sentences for public protection. Have you given thought to the possible benefits of releasing such prisoners once they have completed the determinate part of their sentences, rather than leaving them there for the indeterminate part? Are there liable to be significant costs if prisoners go to the European Court of Human Rights challenging the indeterminate nature of their sentences?
Mr Kenneth Clarke MP: We are reviewing sentencing policy in every way, and we are working towards producing a Green Paper on sentencing and rehabilitation as quickly as we can. Indeterminate sentences are very much part of that review, and I hope it will produce conclusions for change, if we are going to change-that is all still to be decided. It ought to be cleared through the Government in the reasonably foreseeable future.
The Chairman: You will be pleased to know that we are moving to the close of this session. We are in the home straight. The last set of questions relates to international human rights obligations.
Q41 Lord Lester of Herne Hill: Previous Conservative and Labour Governments have had a good record in signing and ratifying international human rights treaties and mechanisms. Very quickly, I would like to ask you about several of them. I suppose I have to declare an interest and say that I have been badgering about this in asking Questions for Written Answer. The first one is Protocol 7 to the convention. In the previous Government, when the Equality Bill was going through, the Ministry of Justice, your Ministry, put me up to amend the Bill to enable the UK to ratify Protocol 7. That was duly done by providing for equality between spouses. Most other European states have already ratified it. Given that that is so, would you reconsider whether there is any technical or political objection to our ratifying Protocol 7? It deals, as you know, with the rights of aliens to procedural guarantees in the event of expulsion, the rights of someone convicted of a crime to have their conviction reviewed by a higher tribunal, the right to compensation where there is miscarriage of justice, etc. I am not aware of any aspect of English or British law that prevents us from ratifying. Is there any legal problem about it, or can we please do it?
Mr Kenneth Clarke MP: We will consider it. The previous Government did undertake that it was going to, and then it raised the question about equality between spouses in your amendment. We will consider it, but I can’t commit us to actually do so. As you know, at the moment we are looking at the whole question of the control of immigration into this country. That may delay a decision because we haven’t looked at it in the round and we will have to consider whether the seventh protocol might give rise to even more litigation on this process, a fresh burst of litigation by people who are trying to add to the legal protections that people have when we are trying to remove them from the country. As far as I am aware, that is the bit of the seventh protocol which the Government has got to consider and form a view about. Lord McNally may have been involved more than I have so far, but we are not the lead department on that. But I think that is a relevant consideration that we do have to look at.
Q42 Lord Lester of Herne Hill: The same objection was raised to ratifying the UN International Covenant on Civil and Political Rights when Roy Jenkins was Home Secretary and Tony Crosland was Foreign Secretary. Another one that I wanted to ask you about was the optional protocol to the International Covenant on Civil and Political Rights. This is the one that is soft law; it is not part of our law. It allows a complainant to go to the UN Human Rights Committee in Geneva and argue that there is a claim that, under the international covenant, their rights have been breached.
This is an area where every other member state of the European Union and almost all the states of the Council of Europe, almost all of the 47 states, have accepted it, and all the big Commonwealth countries have: Australia, Canada, New Zealand, South Africa, India-no, not India-and also Ireland. So we are completely isolated from almost all the rest of the world. It is soft law. It is not to be litigated in this country, and it doesn’t give rise to any domestic enforcement procedures. Under the previous Government, Mr Straw in particular set his face against this when he was Foreign Secretary. Could you have a look at it again to see whether we could join the rest of the civilised world in allowing this mechanism to operate?
Lord McNally: We would like to see the practical benefits of such an accession. Certainly, if you would like to write to me, Lord Lester, spelling out those practical benefits, I will make sure that they go on the right decision-making desk.
Q43 Lord Lester of Herne Hill: Thank you. That will be done in this Committee, I think. But that relates to the other one, which is the 12th Protocol to the convention. This is the one which gives rise to a free-standing equality guarantee. The practical benefit of the optional protocol would be to allow equality claims to be raised in the human rights committee. The same applies to Protocol 12, except that would make it enforceable in the European Court of Human Rights. The previous Government put forward arguments against it. Now that we have the Equality Act in force and a common law right to equality, would the Government reconsider the case for ratifying Protocol 12?
Lord McNally: We will look at the case, but we have no plans to sign or ratify at the moment.
Mr Kenneth Clarke MP: Before we turn to the next question, I am the next Statement in the House of Commons. The Energy Secretary has spent a quarter of an hour on the Redfern Inquiry, and he will probably take longer, but I am a little nervous in case he isn’t getting enough questioners and I might be called. Do you mind if I leave Lord McNally, with complete confidence, to deal with other questions?
The Chairman: We have actually finished. What a happy coincidence. I thank you both. We have finished because we have been very efficient, from your side and from our side. There are a number of follow-up questions and we will, if you are happy with this, write to you about them, particularly in relation to the Comprehensive Spending Review and human rights. I thank you both for attending. It has been almost a comradely session.
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