Examination of Witnesses (Questions 1
- 19)
TUESDAY 16 OCTOBER 2001
THE RT
HON LORD
IRVINE OF
LAIRG QC AND
SIR HAYDEN
PHILLIPS KCB
Chairman
1. Good morning, Lord Chancellor, and welcome.
(Lord Irvine of Lairg) Good morning.
2. As you can see we have one or two new faces
since you last came here, and one or two old ones. In my case
the wheel has come full circle and I am back where I was two years
ago.
(Lord Irvine of Lairg) I should welcome
you back to the Chair.
3. Thank you very much. Would you like to introduce
Sir Hayden Phillips?
(Lord Irvine of Lairg) He needs no introduction: Sir
Hayden Phillips, my Permanent Secretary.
Chairman: We are going to start with a few general
questions if we may. You have probably had some indication of
the areas we are interested in, which are quite wide in keeping
with your vast brief. I am going to ask Bob Russell to start the
ball rolling.
Bob Russell
4. Good morning, Lord Chancellor. What are your
priorities for this Parliament? If we look ahead two or three
years, midway through the Parliament, what sort of challenges
do you foresee? Is there anything you were disappointed not to
have achieved in the last Parliament?
(Lord Irvine of Lairg) That is a very difficult question.
First of all let me tell you what my major priorities are and,
not surprisingly, they relate to the two principal Committee reports
that have landed on my desk. Those are the Auld Report and the
Leggatt Report. You might expect me to start with the Auld Report
(but I am not going to) because obviously it is a huge priority.
The Leggatt Report is also a big priority and I would like to
tell you why. That was a report that was delivered to me on 29
March and was published on 18 August and the consultation on it
ends at the end of November. The reason I start with it, in answer
to your question, is that, depending on its fate, of course, across
Government it may come to be regarded as a historic document.
I see it that way. Tribunal justice is huge business and its extent
is not generally appreciated. It has not been considered in the
round since 1957. Tribunals have proliferated. Now there are about
a hundred of them. Every year they decide more cases than the
ordinary civil courts, many more, about a million cases. Basically
Leggatt has done for tribunal justice what Woolf did for civil
justice and what Auld is now trying to do for criminal justice.
The basic point I would like to make is that what Leggatt does
not do is disturb policy responsibilities within departments for
areas in which each department is responsible, for example, the
Department for Education, Employment, DTI and so on. What he is
in favour of is a unified tribunal system just as Auld is in favour
of a unified criminal court. He is recommending a streamlined
system of administration for all tribunals. That is a very important
priority for me according to what is agreed within government
legislation for that. The second is Auld. It is a massive report.
It was published on 8 October in good time for you all to have
read the 700 pages and the 328 recommendations. I am pleased that
it was published in time for this meeting. It is a massive, radical
piece of work. The period for public comment ends at the end of
January and if it comes into effect it will represent unquestionably
the largest reform of criminal justice for over 30 years. Auld
himself has conducted a massive consultation exercise with about
a thousand written submissions. There has also been the Halliday
Report on sentencing and the Government's own document, Criminal
Justice: The Way Ahead. The priority for government and for
my department along with others will be to bring forward legislation
in this area, again once the key decisions are made and, just
as in the Leggatt area they have not been made, so obviously in
the Auld area they have not been made. As shortly as I can these
are my two major priorities. I must ask my Permanent Secretary
what our biggest failure is.
(Sir Hayden Phillips) That is a contradiction in terms,
Lord Chancellor. I think we would like to have seen the Commonhold
and Leasehold Bill going through last time and it did not, but
we did not have a big legislative programme.
(Lord Irvine of Lairg) That is true. Commonhold and
Leasehold lapsed with the election but it is up and running. It
is first out of the traps. We have got Land Registration as well,
which is very important for e-conveyancing. Of course I could
wish to have had these last time, but we have got them first out
of the traps this time, so I do not really have much to complain
about.
5. So you feel the Auld and Leggatt Reports
will occupy the first two or three years?
(Lord Irvine of Lairg) It depends upon the speed with
which Government makes decisions and it also depends upon the
speed with which legislation can be prepared. Auld is obviously
an absolutely massive undertaking. Whether or not you could have
legislation this session in certain important areas or not, whether
or not you should wait for a big bang in the second session, these
are very difficult questions. Big stuff it unquestionably is and
sooner rather than later.
6. After the election some responsibilities
were transferred to you, mainly, as I understand it, from the
Home Office. In what ways will the transfer of those functions
improve the way your department works? Secondly, is your Department
now in charge of constitutional matters?
(Lord Irvine of Lairg) Oh yes. The Department is undoubtedly
now in charge of constitutional matters. That was an important
part of the Machinery of Government changes instituted by the
Prime Minister almost immediately after the general election.
In practical terms what it has meant is that about 50 main line
civil servants have come over from the Home Office to the Lord
Chancellor's Department. They are transfers which are in the areas
of human rights, freedom of information, data protection, responsibility
for House of Lords reform, other areas such as responsibility
for the dependant territories. Certainly they justify the description
that the Lord Chancellor's Department has become more a rights
department and a department which is primarily (not exclusively,
obviously) concerned with these constitutional issues which have
transferred.
7. Continuing with the constitutional matters,
I am pleased about the dependant territories and I might put in
a special plea on this occasion for the island of St Helena. Would
it not make sense for electoral law and the coroner system to
have come to you as well?
(Lord Irvine of Lairg) I suppose you might say there
would be no end to the appetite for more business. Electoral law
has remained with the Home Office. There is a great deal of work
on hand there. It is one of these borderline areas but there is
no plan to transfer electoral law to us. In a sense human rights,
freedom of information, data protection and reform of the House
of Lords and any other reforms of Parliament fall into a neater
box.
8. And the coroner system?
(Lord Irvine of Lairg) The coroner system could. I
would see no objection in principle to the coroner system coming
over although it may be that my Permanent Secretary would because
we have got quite enough work already. There would be no objection
in principle to it. I do not think there is any objection in principle
to it remaining where it is but yes, it could come over.
9. I understand you have also got city status
applicants coming to you.
(Lord Irvine of Lairg) That is true too, and you should
also mention responsibility for the Cenotaph ceremony.
David Winnick: Quite a little empire building
up there.
Mr Russell
10. On the city status one I will leave you
with the thought, Lord Chancellor, that now applications have
closed perhaps you could be generous and allow all applicants
that meet your requirements to be granted city status so that
you make as many citizens as possible happy with your decision.
I leave that with you.
(Lord Irvine of Lairg) It might devalue the status
a little.
11. I very much doubt it because clearly every
applicant believes they are justified—and that is a serious
point I make.
(Lord Irvine of Lairg) I know that. The trouble is,
everybody who makes an application to the court thinks he is entitled
to it as well.
12. Finally, Chairman, given the Government's
intention to a fundamental shake-up of the criminal justice system,
is there not now a strong case for creating a Ministry of Justice
which is responsible for law reform and the criminal courts?
(Lord Irvine of Lairg) That of course is a very fundamental
question that you saved till the end. Actually, I think the opposite.
I can understand why you put what you say but I basically conclude
the opposite. I think that the recent machinery of government
changes in fact point against an overarching single Ministry of
Justice in this country. You see, what the various functions in
a justice system reflect is discrete and (I would say) properly
independent parts of the fabric of the state. Crimes are investigated
by the police. Decisions to prosecute are made by an independent
body called the Crown Prosecution Service. Responsibility for
the content of the criminal law is with the Home Office because
there lies responsibility politically for bringing legislation
to Parliament about loss of liberty, and there also lies responsibility
for prisons which house the people who have lost their liberty
under the law, but then decisions in particular cases in relation
to citizens are taken by the judiciary and the courts. Unsurprisingly,
I think, to responsibility for the judiciary, the courts and judicial
independence (the independence of courts) has been added to responsibility
in the constitutional sphere and in particular for human rights.
I do recognise that other countries, in accordance with different
cultures, do things differently, but I actually do believe that
our basic values of freedom under the rule of law are best protected
by keeping these functions discrete and with separate lines of
ministerial responsibility.
Chairman
13. Just one small point, Chancellor, before
we move on. You mentioned that electoral law has remained with
the Home Office. I believe that to have been transferred to the
DTLR.
(Lord Irvine of Lairg) Yes, that is right.
Mr Watson
14. Lord Chancellor, the Human Rights Act has
been in force a year now, or just over. Are you satisfied that
it is operating as expected?
(Lord Irvine of Lairg) Oh yes, I am. I think that
the Human Rights Act has bedded down very well. There was a great
deal of training in advance for the judges. The important decision
in principle was taken that Human Rights Act points could be taken
in all courts. You could have said, "We do not trust the
magistrates to deal with human rights points" and that these
decisions must only be taken in the higher courts. We trust all
the courts because, after all, if human rights are part of the
law of the land you should be entitled to raise a human rights
point in any court. We therefore had to train all our judges in
advance, including our 30,500 lay magistrates. Some people criticised
our delay of about two years in passing the Act until we got to
implementation. I think the time was well spent. I have completely
ignored Whitehall, however, in that answer. Whitehall also prepared
and trained because I do believe that a culture of respect for
human rights, which was always intended, has permeated Whitehall.
You will all have read in the papers the stuff about how the courts
were going to come grinding to a halt and there was going to be
chaos in the courts and these were mad and absurd laws of an alien
nature that we were importing into this country and so on. None
of that of course has been proved correct. The prophets of doom,
as very often, have been found to be wrong. My own belief is that
yes, it has bedded down in a very satisfactory way and the courts
have made decisions which are pretty balanced on the whole.
15. You have set aside £21 million for
additional court time as a result of the Act and an additional
£39 million against the possibility of an increased legal
aid bill. Has that been used? Has that been necessary?
(Lord Irvine of Lairg) My goodness, that is a very
detailed question. It is right. I have got to try and remember.
I think we have got £21 million for court sittings and we
have got £39 million for legal aid, which was specially earmarked
for Human Rights Act purposes. Certainly we needed the money.
These sound big figures but they are actually very modest figures
if you look at the whole of the legal aid budget which, let us
say, lies somewhere between £1.6 billion and £1.7 billion,
so when we talk about £39 million for legal aid it has got
to be seen in that context. Basically the position about the Human
Rights Act is that it has raised very few free-standing cases.
By that I mean that you would be hard put to list a case which
was based on a Human Rights Act point only. The cases in which
Human Rights Act points arise are cases which would have arisen
in any event, so the Human Rights Act point is bolstering. It
may be an independent point but none the less it does not cause
a case to be brought in the first place. The direct answer to
your question is, you prove to me that you have spent the £39
million, no more, no less, on the legal aid dimensions of the
Human Rights Act, or you prove to me that £21 million worth
of additional court time is attributable to human rights. Look;
I could not do that, obviously, but I can tell you that last year
we sat about 93,000 days in the crown court, sitting days. That
was an increase on about 89,500 the previous year and we are planning
to sit 100,000 days in 2001/2001, and we are on target to do so.
I cannot prove to you that that is attributable to human rights
but I do think in fact that we asked for money and really put
our money where our mouths were because when I was saying, "Do
not believe all this stuff about chaos in the courts", if
I actually believed all this stuff about chaos in the courts I
would have been asking for more money.
16. Has your experience of the last year altered
your view as to whether we should have a Human Rights Commission?
(Lord Irvine of Lairg) No. I retain a very open mind
about the Human Rights Commission. I occasionally say things that
make people think that maybe I am a cynic about commissions, and
I can assure you I am not because we have got commissions. We
have got commissions in the area of sex discrimination, in the
area of race relations, in the area of disability and so on, and
so we have got a good tradition of commissions. What we have got
in the Human Rights Act is the Act itself, a period of bedding
down. We have got a joint committee of both Houses on the Human
Rights Act which I have given evidence to only once but is working
well. I certainly do not preclude a Human Rights Commission. I
have got a more ambitious idea which always seems to go down with
the various interest groups like a bit of a lead balloon but I
do not mind ventilating it. I think there is a case honestly for
an overarching Human Rights Commission, one that would subsume
within it the existing commissions, but "subsume" is
the wrong word. That word puts people off. It would have a divisional
structure because you can have too many commissions with too many
administrations and no collocation of premises, too much of a
good thing. I think that people would embrace the idea of an overarching,
overriding Human Rights Commission which embraced all the existing
commissions and the human rights dimension as well. That might
find receptive ears.
17. But who do you envisage would sit on a commission
and who do you think would choose who sits on that commission?
(Lord Irvine of Lairg) I would have thought that there
would just be the widest consultation as to who should sit on
the commission. The Commission would obviously have members drawn
from all interest groups in the same way as the existing commissions
do. Who the chief executive was to be and the other principal
executive officers would obviously be hugely important and there
would be an open competition for that, and there would be an open
competition for who the commissioners would be. In principle there
are no problems of staffing or finding commissioners. The question
is whether it is a good idea.
Mr Cameron
18. On the Human Rights Act, as you say, it
has been in place for a year. What in your opinion are the chances
that there will have to be some serious amendments to it because
of the planned legislation on terrorism and extradition and asylum?
(Lord Irvine of Lairg) I do not see myself
that what David Blunkett announced yesterday calls for any amendment
to the Human Rights Act. The Human Rights Act of course, like
any statute, can be amended, not to the extent that, using shorthand,
it incorporates the European Convention, but the European Convention
allows for derogation when strictly necessary at a time of public
emergency from Article 5, which is a very important article. That
is what the Home Secretary indicated yesterday he was proposing
to do, and I have to say that extreme circumstances do call for
extreme measures, but I do not believe that this emergency, this
way of proposing to deal with terrorists from abroad who are potentially
grave risks to the United Kingdom and having to derogate from
Article 5 to achieve their detention in any way prejudices the
overall beneficial effects of the Human Rights Act and does not
call for any amendment of the Human Rights Act.
David Winnick
19. Critics of the Human Rights Act, however,
Lord Chancellor, argue that as a result of such legislation it
is much more difficult to deal with those who are said to be involved
in terrorism, that they can delay their departure from the United
Kingdom not for months but for years on end. What would be your
response to that?
(Lord Irvine of Lairg) We obviously have to speed
up asylum processes and we have to speed up immigration processes.
I know that there is criticism in some quarters of the interpretation
that our courts have given to particular articles of the Convention,
and indeed of the Geneva Convention. We do not send people back
because of Article 3 to countries where the individual, if sent
back, would be at risk of torture or inhuman treatment. Some of
the criticisms that have arisen arise out of a difference of opinion
where actually our courts are in the majority across the European
Union and our courts also agree with the United States of America
and Canada, but that is by the bye. There is unquestionably an
issue where you have got, not state persecution, but persecution
which a state is unable within its own borders to prevent. In
such cases the persecution does not count in France or Germany
and therefore people would be sent back despite that fact, because
the persecution is not at the hands of the state but is at the
hands of those whom the state is unable or unwilling to control.
Our courts take a different view in common with practically all
the other supreme courts of the European Union, other than the
two big countries of France and Germany. Also, as I say, we are
in line with the United States and Canada. That is the kind of
thing. The reason I went into a little detail on it is that much
is made sometimes in the media of that kind of point. Also, we
do know that we are a country which is a magnet for asylum seekers
and we have to ask, I suppose, what are the reasons why we are.
One of the reasons why we are is because of one of our principal
national assets: the English language.
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