Examination of Witnesses (Questions 20
THURSDAY 21 MARCH 2002
20. Do you have arrangements in your own unit
or within the relevant government department for somebody to bring
together all the assessments made by the different inspectorates
in relation to the human rights culture, so that you will have
a litmus test, if not a benchmark, of how things are moving forward
in the development of the culture in schools, in hospitals and
in social service, all of the things that worry us about where
people's human rights can be damaged unwittingly by people who
are, in fact, public servants?
(Mr Wills) Would it be helpful if Mark de Pulford
were to say a bit more about how we do that? Would that be useful?
(Mr de Pulford) I think, if I may say so, that is
certainly something we can move towards. At the moment I would
say that our assessments are based on fairly limited information.
This process of, as it were, mainstreaming human rights in the
work of inspectorates in various departments is as yet not fully
developed. It was a matter, as the Committee are aware, that was
drawn to the attention of Permanent Secretaries and very strongly
recommended to them. It is beginning to take root but these are
still quite early days. It is an area, as the Minister has said,
that we do attach a lot of importance to and propose to encourage
in a special way in the regular meetings that he has just referred
to. We would certainly look at the inspection issue.
21. What about the Press Complaints Commission,
what have you done in relation to non-departmental public bodies
or the Financial Services Authority, have you been having similar
discussions with them?
(Mr Wills) Not in so many words. I think it is important
to recognise that the fundamental approach is towards mainstreaming
human rights. From the Lord Chancellor's Department we cannot
run every other department's human rights policy for them and
how that is to be implemented through the various public bodies
they sponsor, we cannot do that. What we have to do is to do what
we can to push forward this process of mainstreaming. I do have
a briefing, you will not be surprised to hear, on some of these
bodies and it may be useful, if I may, to give you our understanding
of where they are on these various points. As far as the BSC is
concerned, it is our understanding that the DCMS has issued guidance
to them on the impact of the Human Rights Act. I also understand
that in advance of the enactment of the HRA the Broadcasting Standards
Commission did obtain legal opinion that its Codes of Guidance
and its working practice were compatible with the Act and the
ECHR, therefore in arriving at its decision on both complaints
about the fairness and on standards they had to take account of
both the Human Rights Act and the ECHR. On the FSA this is an
arm's length prudential financial regulator, closely defined by
statute. I know that some members of the Committee may recall
that during the progress of the legislation governing the FSA
through Parliament these human rights aspects were debated at
some length and in some detail. It is worth pointing out that
the Treasury responsible for Parliament only has limited powers
over the FSA, for good policy reasons. As far as the PCC is concerned,
this is independent of Government and, to some extent, this needs
a balance between Articles 8 and 10, Freedom of Expression and
the Right to Privacy. This is already reflected in the newspaper
industry's Codes of Practice and it is for the courts to decide
where this balance lies on a case-by-case basis. Obviously there
are some quite high profile cases going through at the moment
and it is for the PCC to consider developing the industry's Codes
in the light of emerging judgments. I cannot comment on the individual
cases before the court. That is where we are on those three particular
Lord Campbell of Alloway
22. It is a fairly concrete question, and I
am sure it can get a fairly simple answer, first of all, does
the Unit contribute to the proposals for legislation from other
departments, in particular the Home Office? Secondly, if it does,
what is the machinery? Is there a concept here, I do not know,
of a preliminary stage before pre-legislative scrutiny involved
in this machinery and if so ought the JCHR to be involved at the
first stage of the process, because inevitably they will get involved
at a later stage? I hope I have made myself plain.
(Mr Wills) I think the answers are, firstly, yes to
your first question. The second question about the machinery is
that inevitably when any legislation is proposed it comes round
through the Whitehall machine, the interested departments are
consulted and we will be consulted about legislation appropriately
and we will then feed in our views, as we have done, on the human
rights dimension of this. Obviously some legislation raises human
rights questions much more directly than others, you have already
mentioned the anti-terrorism legislation. In other areas we would
expect primarily because of the overall approach of mainstreaming,
the sponsoring departments to be involved and to come to us where
they feel they need guidance and encouragement, as they often
do. This is an important part of the work that the Human Rights
Unit actually does.
23. In that process what about where and when
the JCHR has the advantage of knowing the advice you take?
(Mr Wills) We would have to look carefully at how
the Committee were to be involved. Generally I am always interested
to know how we can continue to evolve in this new area. I am not
sure I would want to encourage you necessarily to believe we can
give you a positive response.
24. It is something that cannot be answered
at the moment.
(Mr Wills) On this particular point this is a new
area. If we are to go down a route which I hope is not too nebulous
and fanciful, to go back to our earlier discussion, of changing
the culture which I believe is fundamentally important, this whole
process of how Government works, how this Committee works is going
to have to evolve and we must be in dialogue on this. Clearly
advice to Ministers is not going to be appropriate to be disclosed
but there may well be mechanisms that we can work together on
or we can be participating in this process more closely in other
ways in the future.
25. I appreciate everything you just said, it
is taken for granted. Thank you very much. In context with another
concrete situation I think we can get a fairly simple answer.
You have said already that you advised on the Anti-terrorism Crime
and Security Bill. Did you approve the Attorney General's proposals
on religious hatred, which was severely criticised by the then
Lord Chancellor, Lord Mackay of Clashfern, Lord Neill of Bladen
and four other noble Lords, including myself, and rejected by
the House? Did you or did you not advise on that?
(Mr Wills) We were closely involved in all of the
discussions on that legislation and the Government came to an
agreed view on it.
26. The answer to the question is yes.
(Mr Wills) The Government came to an agreed view on
27. Thank you very much. That is the situation.
I presume your Department was involved in the Representation of
the People Act and on the certificate of compliance, is that right?
(Mr Wills) I am afraid I am not sighted on that particular
issue and what role we played in that.
Lord Campbell of Alloway: I am.
28. No doubt at some stage you can write to
the Committee in response. I am conscious of the time and we have
a large agenda.
(Mr Wills) I will write on that particular issue.
29. Minister, I want to come on to the question
of not only establishing the culture of human rights but the expectation
that this Act will provide a tool to enforce human rights. When
the Bill was enacted a number of groups felt that the Act would
be of significant value, particularly to some of the most vulnerable
groups in our community, those with mental health problems. I
am thinking particularly of the physically disabled and mentally
impaired. Can you give us any examples, not about establishing
a culture, but where the Act has been used as a tool to enforce
(Mr Wills) There are a number of cases. There are
not huge numbers of cases and it would be wrong at this stage
to expect there to be so. There are cases. There is, for example,
the case of the widow in the Crawley Green Road Cemetery in Luton
where by mistake the ashes of her husband were interred in consecrated
ground, when she and her husband had held for many, years profoundly
secular views about this. Unless the Human Rights Act had been
in force she would have been able to do nothing at all about where
her husband's ashes were interred. As it was the application of
the Act enabled her to secure the interment of the ashes in a
place that she and her husband would have wanted. There is a limited
application, but a very, very important and very sensitive personal
matter where if the Act had not been in place there would be no
remedy. There are a number of other examples, I am happy to write
to the Committee with a list of what we would suggest would be
some of the most salient examples. I have to say there are not
hundreds of them, but at this stage inevitably so.
30. I think the Committee would be pleased to
hear of the case of that particular individual and I think it
would be helpful to have examples. I think the point I am driving
at here is, I am very pleased about the specific example you gave
of the lady, but it is about establishing a culture. I suspect
that that one case has not established a culture, although it
is a very important principle for that particular person. I really
come back to my question about the most vulnerable groups and
their expectations and how the Act could be used. Within the Act
there is the power given to the Secretary of State whereby an
order can be made for enforcement powers to be given in relation
to the Act. I now come back to the disability group, I believe
I am right in saying that in September 2000 a formal request was
made by the Disability Rights Commission for them to be given
such a power of enforcement in relation to the Act. I believe
that I am right in saying that this was the one for disabled people,
including those with mobility impairments, learning disabilities
and mental health problems, and those particularly with a vulnerability
to human rights abuses. For them the DRC would be ideally placed
to use its expertise and its ability and quality to test the law
and develop experience relevant to any future Human Rights Commission.
The DRC requested that in September 2000this would have
gone a long way to establishing a culturewhy was it that
the then Home Secretary, some nearly six months later, turned
(Mr Wills) I think we have to say this is work-in-progress
at the moment.
31. I do not think they would regard being turned
down as work-in-progress.
(Mr Wills) I will explain what I mean by that in a
moment, if I may. I want to address one or two of your issues
in the preamble to the question, which I think are important to
pick up. I was trying earlier to answer your question very specifically.
It is important to note that the rights under this Act have been
enforceable for some considerable time. The particular point in
case that I raised was actually to find a way we could show some
specific value out of this particular Act. The ECHR has given
people in this country certain rights that are applicable and
it is important to register that and to that extent we are not
going to immediately see huge step-changes.
32. We acknowledge that, Minister. What we are
trying to reach for here, the crucial point my colleagues have
been talking about, is establishing a culture. The reason I am
labouring this is the Disability Rights Commission, which is a
very important Commission, as I am sure you would readily acknowledge,
made a very important request, it took six months, it is not a
work-in-progress, and they were told "no". What I am
trying to get at here is, if we are genuinely, as I believe we
are, trying to establish a culture of human rights why were they
turned down? Do you think that is right?
(Mr Wills) If I may explain what I meant by work-in-progress.
We have a number of commissions which deal with equal opportunities
across the piece. The Cabinet Office are currently trying to resolve
an agreed position throughout Whitehall on how we approach the
question of bringing together, giving effect to various European
Directives, bearing in mind the evolving culture of human rights
in this country and how we best organise the mechanisms for it.
There are a number of different options, we have freestanding
commissions at the moment, there is discussion about whether we
33. With respect, Minister, bringing together
the commissions into one Equality Commission, whether it is done
or not done, whether it is done this year or in five years' time
or ten years' time, I am really going to be very specific on this,
this was a specific request in relation to disability rights,
it was made in September 2000, it is about establishing a culture
and they were turned down. The Government did not say in September
2000 it was thinking about bringing all of the equality commissions
together, that was not the reason the DRC was given for being
turned down in February 2001. I am going to ask you, why were
they specifically for their specific request turned down and with
hindsight, regardless of whether or not we create a single or
several equality commissions, was that the right decision and
would that be a decision that you would you like to look at again?
(Mr Wills) We are looking at a whole decision and
I am giving you a specific answer. It is very important to see
this in context. We cannot pick out, important as it is, the DRC
independently from all of the very important commissions, it does
not make sense to give them one set of rights and opportunities
which are denied to others.
34. Why was that order given to the Secretary
of State as a power if it is not going to be used?
(Mr Wills) I have not reached that decision yet, no
one has reached that decision yet. We are in the process of going
out to very widespread consultation with everyone and we look
forward to this Committee's views about what the most appropriate
mechanisms are. We do not want to rush into things and it would
be wrong, for wholly admirable reasonsplease do not misunderstand
me about thisI do not disagree with the force of what you
are saying at all, but we have to make sure we have effective
mechanisms that stay. That is what the consultation is about.
The Cabinet Office are out to consultation at the moment. We have
to work out what is the best mechanism to bring these various
commissions together. In the interim period, and I understand
how frustrating it is for people, it does not make sense to give
the DRC special powers which are not available to any other commission.
I am not prejudging the outcome of the consultation, not least
because it does not fall to my responsibility, but we are out
to consultation and these are very important issues, I am not
denying that at all. All I am saying is the decision has not been
taken finally yet and this is the process through which it will
be taken. I am sure the Committee will make its views known. It
is a very important consultation for that very reason.
35. I have been listening very carefully to
what you have been saying and I want to briefly return to the
question of the culture in Government, which I think is very key,
particularly in relation to legislation. On each Bill we now have
before us which comes before the House we have a statement which
says, "This is believed to be compatible with the Human Rights
Act", that is printed on the pages of the Bill. Can I ask
whether that is an internal departmental assessment or if you
or your colleagues have any input into that?
(Mr Wills) It will depend. It is often an internal
assessment, and that is consistent with the approach of mainstreaming
human rights through Whitehall, as I described earlier. If departments
need guidance that we can usefully give them they will come to
us, but we are not their legal advisers. This is a statutory requirement
and therefore it is a matter, primarily, for the lawyers within
each individual department. As I say, the Human Rights Unit stands
ready and willing to offer guidance and consultation whenever
Norman Baker: I agree it should be a mainstream
function. Nevertheless, you have a role, at least in the early
days, if some departments are interpreting their responsibilities
differently from others. I want to raise a specific point in relation
to one Bill, which I think is a general issue, which is why it
is appropriate this morning, which is to do with the Proceeds
of Crime Bill. The Proceeds of the Crime Bill has a number of
measures within it which have been taken directly from the Drug
Trafficking Act 1994, which had incorporated and been made wider
for the Proceeds of Crime Bill. However, when it came to the legislationand
I was on the Standing Committee for thatthe safeguards
which the Drug Trafficking Act had to temper the rather extensive
powers which were given within the Act to the law enforcement
authorities were missing. When I raised this with the Minister
on the Committee the answer from the Minister was that those provisions
did not need to be included in the Act, although they had been
in the earlier Act, because the Human Rights Act was now in place
and the fact it was in place meant by definition the Bill we were
looking at was consistent with the Human Rights Act and that justified
the statement on the front of the Bill to say it was consistent.
I argued with the Minister strongly that each piece of legislation
should be consistent within itself rather than consistent by reference
to an external act. I am very concerned that we are going to have
departments bringing forward bills which in themselves lack safeguards
because there is an implicit reference to legislation.
36. Can I just say, we have written to the Government
about this and we are awaiting a reply.
(Mr Wills) I was going to pick up that very point.
I cannot comment on this individual bit of the legislation which
reflects the Home Office advice they received, however, I do think
there is a very important point of principle raised here which
was raised in the letter, and we are consulting on this at the
moment and co-ordinating our views. It is receiving fairly urgent
attention and we will be replying as soon as we can to the letter
which I hope will address the general points of principle.
37. Lastly, Minister, referring to access to
human rights, clearly if you want to establish a culture you have
to make sure that people are aware of their rights and are able
to access them. I do not know whether you then regard successful
challenges to public bodies and human rights as a mark of success
for the Human Rights Act or as a mark of failure, because government
departments or public bodies have not kept up with what the public
expect as a performance indicator of sorts. What steps have you
taken to ensure that people who might feel their privacy has been
invaded, or their family life has been adversely affected, or
their dignity has been diminished, that they know what the Human
Rights Act might do for them and what recourse they have in law?
You mentioned education in schools earlier on. That is very important,
all members accept that is a very worthwhile step that has been
taken. What else are you doing with the general public, or is
it simply a question of osmosis, which means that people will
understand this over a number of year?.
(Mr Wills) There are number of different things. In
relation to the government litigation and defeats or successes,
the Lord Chancellor has said, and I would just like to repeat
it, that if the Government is defeated in the courts we should
not regard it as somehow a disaster or defeat, but more as a step
on the road towards good governance, and that is put better than
I could. On the more general educational point, in terms of our
own promulgation of it we, we put full information on our website
so it is quite easy to find. That is going to be increasingly
important as 45 per cent of homes are now on-line with a wide
range of centres round the country to pick up on it. It is much
more accessible than it would have been three or four years ago
and it is a very effective way of disseminating information. We
set up the Community Legal Service to try and make sure that people
have more effective ways of implementing their rights, and this
is taking off with some success across the country. Certainly
the sorts of rights you have been talking about would be available
to them as appropriate through the CLS. We have a very big job
to do through education, through school and in time we hope the
DfES will be mainstreaming human rights through adult education
and through lifelong learning as well so that this culture is
part of the fabric of people's lives. At some point if people
fall into unfortunate circumstances where they feel they may need
to enforce those rights then they will be aware, (a) they can
enforce them and (b) where they can go to get them enforced.
Baroness Perry of Southwark
38. I think you partly answered my question
in what you just said. Several times you referred to the importance
of mainstreaming and referred to the fact that you are a relatively
small unit in one department, the Lord Chancellor's Department.
Another way of putting mainstreaming is that you want all government
departments to take ownership of human rights as their own issue,
as something they could do and not hope some unit somewhere is
doing it all for them. What are you doing to get in at that stage
and to ensure at a very early stage of development of policy within
government departments there is an awareness of human rights?
When they are putting out regulations, for example, when the Department
of Health puts out regulations about the lifting of patients in
their own homes, or when they are making policy about old people's
homes and the dignity of old people, and when they talk about
policy in schools and the curriculum, what can you as a small
unit do to ensure that human rights are at the top of the agenda
at the very earliest stage of policy making?
(Mr Wills) We do not have the resources and it would
be counterproductive if we were to keep our fingers on every single
bit of paper that went across every desk in every department,
that is just not possible. What we can do is keep people sensitised
and aware of the dimensions of it. That, in a sense, is the purpose.
We have been doing this on an ad hoc basis pretty much
up until now. Looking at the work we have done we think there
is now a case for putting it on a more formal and regular basis
and on a plenary basis. Instead of a series of bilaterals we are
now setting up quarterly meetings for all of the 26 contact points
in the various departments to discuss issues of general importance.
We cannot keep our finger on every single bit of regulation and
every stage of its development. What we can do is keep people
sensitised. Over time I hope that work will change in nature.
We are still in the early days and there is a big job of sensitisation
to do. Over time I think the evidence is beginning, to show that
people are taking it into their bloodstream, taking the ownership,
as you describe it, and the job will evolve.
39. I suppose I want to know whether you have
any mechanism or any thoughts within your unit, obviously, as
you rightly say, not about every single aspect of every department's
policies, but there are some key areas and key departments, the
Home Office, social services, education, health and so on? It
is widely known within Whitehall when a new major area of policy
is being worked up long before it gets to the legislative stage,
or anything else, and that is the point at which really it is
vital that people do not put out White Papers or Green Papers
which have human right aspects that are, to say the least, dubious.
Is there any mechanism you have to pick it up at this stage?
(Mr Wills) It is, perhaps, important to distinguish
between the letter and the spirit here, I think. In terms of the
letter it is primarily overwhelming for the departments themselves
and their lawyers to comply with the law. It is the law and they
have to comply with it and make sure that it is compatible. Ministers
have to sign off a Section 19 statement and that should never
be lightly done, I do not think it is lightly done. There is,
as it were, a more general point about more proactive response
and making people aware of some of the wider dimensions. That
is a job for the Human Rights Unit, that is a job for the contact
points within these departments to inform, as it were, the more
narrow culture of those departments themselves. That is what we
are endeavouring to do.