Examination of Witnesses (Questions 40
MONDAY 22 APRIL 2002
QC, MR MARK
40. Barristers were very worried about that
or very pleased.
(Lord Irvine of Lairg) Barristers, under the guise
of opinions, were busying themselves as quasi legislators telling
departments what they had to do to make themselves compatible
with the Human Rights Act. Now then what bodies subject to legislation
like this have to be is neither excessive risk takers nor be excessively
risk averse. Very often it will be necessaryand this will
be welcome to lawyersto test in the courts what the requirements
in the particular context of the Human Rights Act may be and it
may be perfectly proper for a local authority, which believes
that a human rights' based argument is forcing it in an unwise
directionperfectly properfor it to test the matter
in the courts.
41. Have you a sense though that public authorities
outside Whitehall have taken on a positive duty to inject human
rights' thinking into their service delivery or do you think it
does actually operate reactively?
(Lord Irvine of Lairg) I think that what you do is
you put a good case for a commission. Perhaps that is the case
that you need to examine for a commission. I would not say myself
that I have sensed any culture of reluctance to embrace a new
culture of human rights, I would not say that myself of public
authorities outside Whitehall which is the suggestion. I would
be interested, certainly, to read the outcome of your seminar.
Obviously road shows help us plus guidance. Really there is a
limit to what the centre can do to encourage such a culture.
42. One further question which sounds pretty
facile at the outset but has a purpose behind it. Do you think
that all the public authorities are aware of who they are? I have
to tell you that we have received a letter from the rail regulator
suggesting that Railtrack probably was not a public authority
whereas it was quotedI am not sure if it was by you but
it was certainly in the Parliamentary debateas a public
(Lord Irvine of Lairg) You cannot expect me to express
an opinion on whether Railtrack does or does not count as a public
authority under the Human Rights Act if that is something which
is in contention currently.
43. I do not think it is that. None of us had
any real doubts about this before it was raised by the rail regulator.
If Railtrack does not know which way it lies, what about, for
instance, contracted out public services such as trusts which
are running old people's homes, how are they to know if they have
a duty on the public?
(Lord Irvine of Lairg) We have a general definition
of public authority in the Human Rights Act which was much praised
at the time. The purpose of it was to ensure that the Human Rights
Act had a very wide reach. It is bound to create ambiguous cases,
and I am afraid that is where the courts come in. You see, you
could have gone down in the Human Rights Act the same route that
you go down in the Freedom of Information Act which is just to
have lists but the view that was formed, and Lord Lester will
remember it as well as I do, that in order to spread a human rights'
culture as wide as possible it would be better to go for the definition
that we have in section 6. It was much praised at the time. I
am not surprised that Vera Baird says that it has given rise to
ambiguous situations but these can only really be determined by
44. Perhaps if Railtrack is not sure of its
position as a public authority somebody will give them some advice.
(Lord Irvine of Lairg) Yes, like Lord Lester, for
example, or Vera Baird.
45. Or even the Lord Chancellor.
(Lord Irvine of Lairg) Oh, no, I have long since,
unfortunately, given up giving advice for reward.
Lord Lester of Herne Hill
46. May I turn to access to justice and enforcement
in the context of a possible role for the human rights commission.
Lord Chancellor, you know, of course, that the existing equality
commissions have an important role in giving assistance to individuals
and groups in bringing legal proceedings within their ambit.
(Lord Irvine of Lairg) Yes.
47. So one has here a specialist form of legal
aid and advice and by the expenditure of fairly modest sums they
have been able to bring test cases and help individuals to secure
the vindication of their rights. Would you agree that one argument
that needs to be considered is whether a human rights commission,
going beyond the equality field, would be able to give specialist
advice and assistance to encourage meritorious cases being brought
to help individuals without means to bring them and generally
to facilitate access to justice? I have in mind in particular,
of course, Lord Woolf's original report on Access to Justice and
the way he signalled, for example, the costs rules as having a
deterrent effect and the need to modify them. In other words,
would it not be a beneficial thing if an expert body with a human
rights' remit were to facilitate access to justice supplementing
the Community Legal Service and your own residual discretion in
(Lord Irvine of Lairg) We must not forget that public
law cases do have a priority under our current legal aid arrangements
which I am sure is welcome to you. Also, of course, these non
governmental organisations that I mentioned are not shy of promoting
cases and funding cases which they think have merit but obviously
if we are to have a human rights commission this would be one
of the functions that we would want to consider very carefully.
Also I think that we must not confine ourselves to litigation
here, my own view is that conciliation and arbitration have a
role in the public law sphere as well. I promoted recently, as
you know, within Government the pledge that Government would almost
always be willing to go in for alternative dispute resolution
where the other party was willing to do so. Some thought that
this pledge did not apply to public law cases. Now, of course,
there are many public law cases that can only be resolved by the
courts because they require a decision on a point of law. I am
equally sure that there are many public law cases which could
be resolved, particularly in the discretionary area, by mediation
and alternative dispute resolution. I have asked a team of Government
lawyers to work out how we might make progress to promote that
role in the public law and human rights' spheres.
48. Could I just deal with one aspect before
someone else asks you about alternative dispute resolutions.
(Lord Irvine of Lairg) Yes.
49. You have told the Committee in the past
you do not think there is a cost deterrent and you have indicated
that there is not in your view a great access to justice problem.
I respectfully disagree with that from my own personal experience
but what is more important than my experience is has your Department
undertaken research into whether you are correct, if I may respectfully
say so, in thinking that the existing arrangements are not deterring
people with meritorious human rights cases from going forward?
Let me give you just one example to serve for all. In a case I
know well where all the barristers and solicitors are acting for
nothing, pro bono, the great problem is the other side's
legal costs are so great that one has had to try and find philanthropists
to indemnify against the Government's legal costs. That has had
a very severe chilling effect. My question is has your Department
sought to investigate whether the assertions made are well founded
in fact and if not could that be considered as a possible way
(Lord Irvine of Lairg) I think the answer is that
it has not been specifically looked at but we would be willing
to do so. Could you give me more detail?
50. Yes, absolutely.
(Lord Irvine of Lairg) If you want to write to me,
that would probably be the most effective way.
Lord Lester of Herne Hill: Yes. It is a pending
case but I will do that certainly.
51. Lord Chancellor, suppose we were to recommend
that there should be a human rights commission or human rights
commissions, and given the experience of the equality commissions
that have been in place now since the late 1970s, do you think
it is practicable to have a commission which does not have the
power to send for persons, papers and records?
(Lord Irvine of Lairg) I feel that you are drawing
me down the line of very great detail about what powers a human
rights commission would have so that any answer would suggest
that we are agreed that in principle there has to be a human rights
commission and all that we are talking about is the detail. Well,
that is not so, I think the case for a human rights commission
52. I did say suppose we were to recommend.
(Lord Irvine of Lairg) I know but a case for a human
rights commission has really got to be argued and I am not willing
to go into the detail. A human rights commission with or without
such a power I am sure you would think would be highly valuable.
Whether it would be better to have these powers, well I would
like some illustrations of the kind of situations where these
powers would be useful in a human rights' context as distinct
from the discrimination context where, as I am sure Lord Lester
would confirm, these ferreting powers are very, very useful and
indeed, I think Lord Lester might say, necessary. I would need
persuasion that they were necessary in the human rights' context.
Very often in the area of the other commissions, what you are
really about is just ferreting out what is wrongdoing.
53. Can I just return, Lord Chancellor, to the
remarks you made about alternative dispute resolution. Do you
think a human rights commission could have a role to play in these
and indeed might it be a cost effective option for encouraging
(Lord Irvine of Lairg) My thinking has not extended
to that detail but I do know, for example, that the Australian
and Canadian Commissions have powers of adjudication and I think
it is an extremely interesting idea, quite an exciting idea but
I am not going to commit myself to any particular position. It
is an extremely interesting idea whether a human rights commission
could have a function in relation to the promotion of a mediated
54. Perhaps that might be particularly the case
in view of the Strasbourg Court's reform proposals which make
mention of the greater use of friendly settlements so we might
have more incentive there.
(Lord Irvine of Lairg) I think I have signalled that
I am not unsympathetic.
55. Lord Chancellor, it is sometimes unfair
to quote people's words back.
(Lord Irvine of Lairg) Oh, dear, what have I said.
56. If I can quote some of yours. On the Second
Reading of the Human Rights Bill you said that the Government
had given very positive thought to the possibility of a Parliamentary
Committee on Human Rights.
(Lord Irvine of Lairg) Yes.
57. You were talking about the kinds of things
which the Committee could do.
(Lord Irvine of Lairg) Yes.
58. At one point you said "It could, for
example, not only keep the protection of human rights under review,
but could also be in the forefront of public education and consultation
on human rights. It could receive written submissions and hold
public hearings at a number of locations across the country. It
could be in the van of the promotion of a human rights culture
across the country''.
(Lord Irvine of Lairg) I confess I said all that.
59. You have seen how our work has developed.
Do you still find that a plausible idea?
(Lord Irvine of Lairg) I do unless you tell me from
your seats that it is not. I thought it was right when I said