Examination of Witnesses (Questions 20-39)
THE LORD FILKIN, CBE, ALECK THOMPSON AND HARRY CARTER
WEDNESDAY 3 JULY 2002
20. Given that the European Convention on Human Rights applies to 42 Member States of the Council of Europe, only a third of whom are EU Members, and since the provisions of Article 3 are reflected in international human rights standards such as the International Covenant on Civil and Political Rights, is it really appropriate for the EU Member States to press for "reinterpretations" to accommodate their own interest, without involving all those other States?
(Lord Filkin) To answer the question I shall have to roll forward quite a bit on the process, by which I mean the EU Member States have not yet formed a view that there is any need to or cause for reinterpretation and I should emphasise that.
21. So there is time to involve non-Member States.
(Lord Filkin) What I am marking is that we are not at that position yet. I shall come to your question but I do not want to imply that that is the view of the European Member States because it is not at present the view; they have not reached that position. Let us speculate that they might do so. Clearly one of the routes open to them would be to take such a discussion into the Council of Europe, to involve in discussion other members of the Council of Europe to see whether there was a consensus of a need for change or not. We are not at that point that we, either the British Government or the European Union, are advocating such a change. All we are doing is exploring whether there is some view that there is a problem.
22. The comments by the Commission and the support which appeared to be given to them by your predecessor could well be understood as an attempt by the Commission to undermine or marginalise the European Court of Human Rights in favour of what has been described as the home grown Charter of Fundamental Rights. Assuming that you wish to do so, how would you go about dispelling such an understanding?
(Lord Filkin) It is not the case. The European Court recognises that the European Charter of Human Rights is a living document, by which I mean it needs to be developed and interpreted by the Court over time in the light of the world one lives in. It is not utterly set in concrete. That is in no sense to fudge the principles which it seeks to espouse but to reflect realities of life that through case law, through circumstances, the Court may seek to develop the interpretation of what ECHR means. That would be my fundamental response.
23. There is no attempt to undermine or marginalise.
(Lord Filkin) No, not in the slightest.
24. You said that the Court recognises the Charter is a living document. Did you mean the Convention?
(Lord Filkin) I am sorry, yes I did.
25. You have referred to this more than once as being a very preparatory document but it was issued seven months ago. What has happened since then?
(Lord Filkin) To the best of my knowledge the Member States have been invited to send in their representations, their responses to it. There was a questionnaire that the Commission sent you with the document or subsequent to it and I would imagine that what they are doing is assimilating those responses with a view to bringing forward a further paper for discussion between the Member States at some suitable time.
26. We are constantly being told that there is a serious threat to security This does not show much sense of urgency, does it?
(Lord Filkin) It goes back to the extreme sensitivity of the issues we are talking about and that the Committee is quite rightly focusing on. Because they are so sensitive, one is trying to see whether there is any way of balancing two sets of rights which you want to fulfil totally and yet may be in tension. It is right not to rush these issues. It is right to consider them thoughtfully, carefully and certainly not in the heat of the immediate weeks post 11 September for example. This is one example where the Commission's slow processes may be wise.
27. Some of us do not accept this business of balancing and reconciliation. We regard the rights under the European Convention on Human Rights as absolute rights, not something to be balanced. These are rights which this country has accepted ever since the European Convention was first framed. Article 3 is subject to the European Court of Human Rights and their decisions. You cannot just balance it against security of the state, can you?
(Lord Filkin) Without re-emphasising the points I sought to make initially, when the issues are clear the issues are clear and one should not seek in any way to compromise them. The debate was about the Chahal case which was an example where we thought that return to India might be appropriate in that case. The assurances we received from the Indian Government were not seen as sufficient by the courts to support their return.
28. To try to be fair to you, you have told us that the Government are reflecting, discussing with European Union partners and there is no decision yet or no proposal yet, so there is no policy, there is no question of you having taken a view on a proposal which does not exist. Since this is of great interest to members of this Committee could I ask you to come back and see us before you take up a position on a proposal? Not afterwards, but before.
(Lord Filkin) I very much share the Chairman's view that this is the right time for scrutiny rather than subsequent to a decision which has fundamentally been made in principle. Therefore this is where scrutiny is most valuable to the Government and to the country.
29. But you are still at a very early stage.
(Lord Filkin) We are at an early stage. We would certainly keep the Committee fully informed in advance of the Government's position in any discussions with European colleagues which explored possible reinterpretation options. What that implies is that because we would keep the Committee fully informed in advance, it should in normal circumstances always make it possible for you to have me before you again and to question and probe me, which is right.
Mr Davis: Before the decisions are taken is the point I am making. You might tell us in advance
Chairman: It is a matter for the Committee whom they invite to come, not individual members of the Committee. I just make that point.
30. As you may appreciate, I am very sympathetic to this analysis because I think it is overdue. Implicit in the first question you were asked is this constructive and no doubt extremely relaxed legal tension between the aspirations of the Court of Justice on the one hand and those who promote its objectives and the European Court of Human Rights on the other. There is a certain element of covert tension between them. Can you throw some light in the context of the previous Minister for Europe's views and others who have been before this Committee with regard to the legal standing of the Charter of Fundamental Rights? That takes us into some pretty uncharted territory, but it appears that more emphasis is being given to that Charter as a legal document than was previously thought desirable to explain. The second thing is the connection between what is going on in the context of this debate here and Article 6 of the Amsterdam Treatyand I stand corrected if that is wrong. This also deals with the question of whether a given Member State is itself in breach of human rights. Can you throw some light in that rather broad landscape of the balance of opinion which is developing, perhaps in the context of the Convention, on who is going to take the lead role in this, whether this apparent competition is going to be resolved and how you think it might pan out?
(Lord Filkin) Respecting your legal knowledge and my previously confessed lack of it, I shall give a short answer but invite the official who is a lawyer to develop if that would be helpful. The short answer is that the Charter is not a binding instrument. The Convention is.
(Mr Carter) I have very little to add to that. I have not personally been involved in the discussions about changing the legal nature of the Charter of Fundamental Rights, but I understand that there are proposals under discussion to change its status.
31. I should like to ask about these assurances which you request, these robust assurances. What form do they take?
(Lord Filkin) There have been very few examples to go on so far because, as you would expect, the number of such cases that we are talking about is likely to be pretty few. I illustrated one set of examples around the Swedish case with regard to Egypt. At heart, we would be looking for assurances that we believed were specific enough and were credible enough to believe that there was no risk of infringement of ECHR 3. That is essentially what we would be looking for if at all possible.
32. Can you tell me how many cases there have been if there are very few? How many are there? If there are so few, they must be easy to count.
(Mr Thompson) We tried this route in the cases of Paramjit and Mukhtiar Singh, the only recent cases which the UK has been involved in. There we sought and obtained some assurances from the Indian Government as to their treatment were they to be returned there. When the appeal was heard by the Special Immigration Appeals Commission, although the Commission found the Government's case in regard to the activities of Paramjit and Mukhtiar Singh was proven, it did not accept that the assurances were sufficient to guarantee their treatment in accordance with Article 3 and therefore did not agree to their being removed to India.
33. You may have misunderstood my question. I was not talking specifically about these recent appeals. I am talking about appeals generally. We know there have been several cases, do we not, over the years, where people have been extradited? The Convention has applied for a very long time, not just the last year or two. In how many cases have the British Government sought robust assurances that people will not be tortured or subjected to inhuman or degrading treatment?
(Lord Filkin) My sense is that we do not have that answer before us now but we should like to write to you with that answer when we have done the research on it. To attempt to answer or give an illustration of the sort of assurances, one example might be if we obtained an assurance that a recognised body would have the right of access to the person and we believed that recognised body had sufficient repute and we believed the word of the Government. I think that might be relevant in these circumstances.
34. Earlier in your evidence you posited a case where there might be a conflict between British interests, as you described it and upholding certain provisions of the European Convention on Human Rights. Yet many people would argue that British interests are actually best served by respecting human rights and upholding conventions such as the European Convention on Human Rights without exception. Not just in relation to torture or degrading treatment, but is there an interpretation of British interestsand as a Government representative what is your interpretationwhich is other than saying that British interests are best served by upholding this Convention in all cases?
(Lord Filkin) No, because otherwise we would not have passed the Human Rights Act to make it easier for British citizens to get the benefit of ECHR in domestic courts rather than having to go to Strasbourg. I would posit the point I made previously that ECHR is recognised as being a living document. In other words, either through case law or through decisions by the Council, it is open to being developed in the light of experience and evidence. In a sense that is why I sought to emphasise that there is a need for a reflective discussion across the European Union about whether there is an issue on really hard cases which quite clearly are a very limited number of cases, where there was such a threat to the security of British citizens, real and present, that one had even to contemplate whether there was any balancing act. The Government is not saying that there is a balancing act. It is saying that we should consider these issues with an open mind in the very strange circumstances in which we find ourselves.
35. One of the difficulties for the Committee in your response there is that you open up the possibility that a British Government would look atdescribe it as a balancing act or whateversupporting some cases of torture and unreasonable treatment of suspects and that in itself is a huge issue, not just for this Committee but for this Parliament. There can be no ambiguity. Article 3 in itself is quite clear that there will be no exceptions to it. We know there appears to be a move towards having such exceptions and that is the difficulty which some of us in this Committee and in Parliament fear.
(Lord Filkin) I hope I did not go quite as far as you suggest.
36. I am not saying you did but there is certainly an ambiguity in letters we are getting from Ministers and in comments you are giving yourself to very, very grave questions. There is that ambiguity and where there is ambiguity, there is always a concern.
(Lord Filkin) Let us try to come at it in another way. The broad position is clear, as I sought to give in my previous answers. If we thought that there was a risk of torture or the risk of execution we would not think there was an issue to be discussed. The issue is about what one does if there are people at large whom you cannot, say for the sake of argument, prosecute and therefore lock up, therefore there is a present risk for British citizens. What is the way forward on trying to address that risk whilst at the same time wanting to hold firm to the principles of ECHR? That is the dilemma. Whilst it is not a large scale one, it is a real dilemma. The Government's position is that we should not be afraid to have discussions with other Member States about that tension and that dilemma.
37. May I press you a little further on the interpretation of inhuman and degrading treatment? I am thinking particularly of countries where women do not enjoy the same civil and political rights as men and there are different penalties in law for the same offence. Would it, for example, preclude returning any woman to a Moslem country where those conditions existed? Would that be encompassed in the interpretation of degrading and inhuman treatment? It is a very wide interpretation, but if that were the case it would have implications for the number of people who could claim it. I do not know whether such a claim has ever been made.
(Lord Filkin) My off-the-cuff response would be that we would never make a judgement of the generality. We would always look at the specifics of the circumstances of the particular country to which there was an issue. By that I mean that one would have to look, as we are obliged under ECHR, at whether there was a risk to that woman of going back to that specific country at that particular time. It would be looking at the specifics of the case rather than taking an in principle, general position because circumstances do vary very considerably between different countries.
38. It has not been put to the test as far as you are aware.
(Lord Filkin) No, it has not been put to the test that I am aware of.
39. I just want to get a bit of clarification in my own mind about where the ultimate responsibility for extradition in relation to matters of this kind lies and as respects the relationship between the Secretary of State and the courts. Am I right in saying that under the Rehman case Lord Slynn, who is one of the great advocates of human rights, made it clear in the lead judgment that the final decision in relation to the balance between questions of human rights and national security had to remain with the Secretary of State? It was about four months ago.
(Mr Carter) I cannot remember whether that was an extradition case itself, but certainly Lord Hoffmann made comments in the Rehman case.
40. It was Hoffmann not Slynn was it?
(Mr Carter) It depends which bit of the judgment you are referring to but certainly Lord Hoffmann made comments in the Rehman case to the effect that the events of 11 September are a reminder that, the concept of national security had to be looked at in a much broader way to encompass, for example, activities outside the United Kingdom which might constitute a threat to the security of the United Kingdom.
Chairman: Minister, may I thank you and your colleagues for coming along this morning. I am sure you have observed that the Committee are very, very aggressive, concerned at what is happening in the field of human rights and we are a bit nervous when we hear this expression "balancing act", hence the reason for inviting you along this morning. I am sure that the members will have got some comfort from your responses. It may be that at some future date the Committee may welcome you back to have a follow-up and that is something the Committee will consider some time in the future. I thank you for your offer to keep us informed as much as you possibly can. I welcome that. Thank you very much for coming along this morning.