Examination of Witnesses (Questions 100-116)
RT HON
LORD FALCONER
OF THOROTON
QC AND RT
HON BARONESS
SCOTLAND OF
ASTHAL QC
31 OCTOBER 2006
Q100 Mr Denham: In reaching those
decisions—and Mr Clappison's constituents elect him and
we have all been elected—how much weight do the judges give
to the views that have been expressed in Parliament with regard
to the nature of the threat that is posed and the level of the
response that we think is right in this difficult balance between
the individual and the collective security, and do judges give
enough weight to the views of Parliament in those decisions?
Lord Falconer of Thoroton: In
relation to the level of threat, in relation to how appropriate
it is to take this police action or that sort of action in relation
to judgments about, for example, how well financed or how threatening
it is to the people, the judgments of Parliament and the judgments
of the executive should be broadly accepted by the courts. Indeed,
in the Belmarsh case, eight out of the nine judges make
it absolutely clear that they accept, because it is the executive's
decision rather than Parliament's, that there is a state of emergency
threatening the nation. That is plainly a judgment for them, the
executive, they say, and not a judgment for us, the judges, they
say. In the context of that emergency, they then ask themselves
the question: when you say you have to lock up foreign people
but not UK people, is that a legitimate stance to take? Just testing
the evidence that the Government have given without challenging
any of it, they concluded that the case was not made out.
Q101 Mrs Cryer: This morning, I asked
Rabinder Singh about Article 12 of the Convention, which is about
the right to marry. I suggested that it should be a little bit
fuller than that and it should actually say "the right to
marry who you wish to marry", and also that you should have
the right not to marry if you do not want to marry. He said, more
or less, and I am paraphrasing, that that was assumed; there was
no need to change it because that was an assumption within that
Article. I am just wondering now, if that is the case, what is
the Government doing—and I am asking both of you—to
protect the human rights of thousands of young British girls living
in the northern towns and cities, and what are you doing to protect
their rights under Article 12? It does seem to me that many of
our communities in the north are not even aware of Article 12
or its implications.
Lord Falconer of Thoroton: I completely
agree with what Rabinder Singh said, that a right to marry and
a right to private life must involve not being forced to marry
somebody against your wishes and it must involve the right to
remain single, if that is what you want to do. That is the human
rights point. The policy on forced marriages, without in any way
seeking to discharge my responsibilities in an unfair way, is
a matter for the Home Office.
Baroness Scotland of Asthal: I
think I too would absolutely agree with what Rabinder said to
this committee this morning, and further that it is clear, it
has to be better understood, and lots of the work that we are
doing is to help it be better understood; that to force someone
to enter into a marriage to which they do not consent is already
unlawful because, in order to do that, quite often a whole series
of sometimes heinous offences can be committed—for instance,
false imprisonment and kidnapping—and those are offences
for which one can be sentenced to life imprisonment; assault and
grievous bodily harm—again, life imprisonment. We are being
very aggressive in the way in which we are prosecuting these issues,
in addition to helping, through the outreach work that we are
doing, communities to better understand that that is in fact the
position in law. If you look at Choice by Right, the work that
we are doing with communities, the outreach work, all of that
is reinforcing it. We have had public campaigns to make that absolutely
crystal clear, and we will continue to do more because, if that
is not understood, I think we need to up our game, if I can put
it colloquially, to make sure that it is understood by every single
community in our country. It is totally unacceptable.
Q102 James Brokenshire: Lord Chancellor,
thus far you have expressed that in the context of the protection
of the public the law is quite clear in terms, as you suggested,
of protection in the context of terrorism and actually dealing
with terrorist suspects. Can I apply it to a slightly different
example in terms of the way that the criminal justice system might
operate? Obviously, as you are aware, your review is quite trenchant
in its criticisms of the case of Anthony Rice, who tragically
murdered Naomi Bryant in August 2005. Even if we accept the logic
of your argument in terms of the certainty of the law, the practicality
may be somewhat different. That is certainly reflected in your
comments in relation to prison, parole and probation services,
that here was insufficient recognition that they were under a
positive obligation under the Human Rights Act to take proper
steps to protect the public. How was that disconnect allowed to
be created?
Lord Falconer of Thoroton: What
Andrew Bridges, the Chief Inspector of Probation, said was that
he worried that the Parole Board and the MAPPA people (the Multi-Agency
Public Protection and Partnership) had looked at what to do with
people who are about to be released into the community and they
got, to use his words, possibly distracted by human rights arguments
advanced on behalf of Mr Rice. Mr Bridges wrote a letter to the
Joint Committee on Human Rights in which he said: "If you
look at the file, all the focus appears on Mr Rice's rights and
there is little focus on what is the threat to the public."
The disconnection came because, presumably, they were too worried
about Mr Rice's position and did not focus on the public.
Q103 James Brokenshire: The thing
that confuses me about this is that you are saying that it is
very clear in terms of where the law actually stands and in terms
of the duties, and yet something as fundamental as where the balance
should have been struck actually got struck in the wrong way.
How does that happen?
Lord Falconer of Thoroton: It
is clear, I believe, that you do not release into the public somebody
who threatens the life of members of the public. That is utterly
clear. There is no doubt about that. The Human Rights Act does
not change it. Indeed, Article 2 makes it clear that the state
has an obligation to take steps to protect people. The problem
comes in the detailed facts of the individual case and the way
that the relevant officials looked at the issue. I believe the
solution is not to dump the rights; it is to make sure they are
properly applied.
Q104 James Brokenshire: It does not
sound, from the comments in your review, that this was a one-off
case. Indeed, last month you said that your department was taking
urgent steps, or actively taking forward, to change and to ensure
that a mistake like that was not repeated. What are you actually
doing?
Lord Falconer of Thoroton: We
are giving guidance. We are making it clear what the Human Rights
Convention does not mean and what it does mean. We are having
conferences in which we are telling relevant officials that this
is what the law says. We are taking a range of steps to ensure
that the Act and the Convention are properly understood. I do
not know of any case other than the Rice case, but, if
the Rice case occurred, there must be an anxiety that it
is happening elsewhere. I can easily understand that there may
be people, in making not just that sort of decision but other
decisions as well that affect public protection, who may focus
too much on the human rights of on individual to the detriment
of public safety. We need to make it clear that that is not the
effect of the Act.
Q105 James Brokenshire: Presumably
this is something that is being advanced by the Home Office as
well. I wonder, Baroness Scotland, whether you could comment on
the steps that the Home Office itself is taking to ensure that
cases like the Rice case cannot be repeated.
Baroness Scotland of Asthal: May
I say, first of all, in relation to the Rice case, that
this unfortunately was a case where a number of mistakes were
made. I think the Lord Chancellor has already commented on the
comment made by Andrew Bridges. One of the issues is perceptions.
You will know from our Home Office Review that what we did was
to go out to practitioners and ask them how it was actually operating,
what their perceptions were and how we could better assist. What
we did, as a result, is create a four-pronged programme which
will help practitioners. That is, ordinary people who have to
make these decisions on the ground will have better access to
legal help, advice and guidance in a very practical way and that
should be made available to them. Last year, the lawyers in the
Home Office started a programme of education generally in relation
to these legal aspects, particularly concentrating on human rights.
We are now going to have a website, like a myth-busting website,
so that all practitioners in the criminal justice system can access
frequently asked questions. What we recognised is that some people
are becoming risk-averse. It was not that the Human Rights Act
impeded them doing what they should do but they lacked the confidence
to do it because they feared that they may be doing something
that was wrong. It was that fear that might have been impeding
them taking the robust approach that they were entitled to take.
The website, we hope, will be available to all practitioners in
the CJS by the end of this year. We are also going to produce
an on-line service, so that people can ring up and ask for advice.
We have a scrutiny panel. That is going to have lawyers and practitioners
on it working together. They will be able to review how the guidance
and how these other directions are working on the ground and what
impact they are having. We have also got a learning process which
will be an e-learning programme so that people will be able to
undertake further study and better understand the human rights
at their desk. All of that—the scrutiny panel, the on-line
service, the website—we hope will permeate through the system
and help people to take a much tougher line on public protection
and get that balance really where it should be. Our first priority
must be protecting the public.
Q106 Mr Khabra: May I draw your attention
to what you said at the human rights conference yesterday? To
quote: "The Human Rights Act has had an impact on counter-terrorism
legislation, but [that] the main difficulties in this area have
arisen not from the Act itself but from decisions of the European
Court of Human Rights—and the Government will remain committed
to respecting human rights in its approach to counter-terrorism.
As I have described at length in the earlier part of this speech,
it is fundamental to our defence." Could you explain if there
is a conflict in the thinking between yourself and the European
Court of Human Rights?
Lord Falconer of Thoroton: There
is not a conflict. The decision that I was referring to there
is the Chahal decision, which affects the ability to deport
people from this country to any other country where they face
a risk of torture or degrading or inhuman treatment. The European
Court of Human Rights in Chahal said you cannot do it and
it is an absolute; you cannot take into account, in determining
whether to deport or not, the extent that the individual deportee
poses a risk to the national security of the United Kingdom. We
want to argue, and are arguing in a case called Ramzy in
the European Court of Human Rights, that you should be able to
balance the extent to which the individual poses a risk to the
United Kingdom against the extent to which he is at risk of bad
treatment if he goes abroad.
Q107 Mr Khabra: Would you consider
that our own Human Rights Act is sufficient without being involved
in the European Court of Human Rights?
Lord Falconer of Thoroton: Our
Human Rights Act basically transplants into our law the European
Convention on Human Rights. Our law now is identical to whatever
the law as set out in the Strasbourg court is on what the meaning
of the European Convention is. They are inseparable now.
Q108 Mr Streeter: I was going to
raise the issue of risk-aversion because many of us sitting around
this table I think have noticed, since the Human Rights Act has
been passed, that many public sector decision-makers have become
more risk-averse, and not just for human rights reasons I am sure.
I am pleased to hear the Government's action but I put the comment
on the table that that would need to be fairly proactive. We have
heard today that most practitioners consider the Human Rights
Act is working quite well. I think that is the Minister's view,
too. That may not be the primary public perception perhaps through
the conduit of the media. Do you have a concern about that, both
ministers, and what are you trying to do to address that issue?
Lord Falconer of Thoroton: Yes,
we do have a very considerable concern about that. As Patricia
has said, part of it is to do with myths. You have all heard the
myth of the man who gets Kentucky Fried Chicken while he is holding
the police at bay on a roof because it is alleged that his human
rights entitle him to that. That is not true. The myth that Denis
Nilsen, often repeated I should say by leading spokesmen of opposition
parties, has a human right to have hard core pornography in prison
is again untrue. He made an application that was dismissed at
the leave stage. Yesterday's myth was that the jeweller who caught
on CCTV somebody who was robbing his jewellery shop could not
circulate a picture of the jewel thief who had not yet been captured.
That is again, another myth. If people hear those myths, their
confidence in the Human Rights Act is quite low. We, as a government,
need to take every possible step to tell people what the Human
Rights Act does and, much more significantly, what it does not
do.
Q109 Mr Streeter: The police sometimes
misunderstands that. The police sometimes say, "Oh, we cannot
do that—human rights".
Lord Falconer of Thoroton: They
do and that is what Patricia was saying about having a website,
having proactive steps taken to inform stakeholders as much as
the public. Again, Mr Streeter, I do not think the fact that there
are misunderstandings or myths growing up means that you should
abandon the rights. What you should do is stand up and try to
combat those myths.
Baroness Scotland of Asthal: One
of the things I hope we really will be able to do is to make the
ordinary officer on the street more confident because when they
are challenged, they may then think: well, I am not sure about
this. We want them to be really confident in terms of increasing
the amount of information they are getting in their training,
but also to make that training local. One of the things we are
doing with practitioners now is taking real life examples and
role play and saying, "How would you respond?" It is
not just something that they are intellectually learning on a
piece of paper; they are doing it operationally. What does this
mean for me in my day-to-day life? That is why I think the scrutiny
panel will be very important because it does not just have lawyers;
it has practitioners who are going to say, "I have this issue
and how are we dealing with it?" It also means that we have
to be quite assertive in responding as quickly as we can to these
myths that are raised in the press and say that is not true. Obviously
we need as many advocates as we can around the table to be equally
myth-busting with us so that new myths are not created.
Q110 David Howarth: I am very glad
to hear your robust stance on these myths. I suppose my only comment
is: I wonder whether present and former Home Secretaries should
be included in those who should be told about these myths, if
they are myths? Could I ask you about a slightly different area,
one which came up this morning? This is the question of rights
and responsibilities or rights and duties. The Lord Chancellor,
in a speech yesterday, did briefly mention rights and the responsibilities
that go with them. After that, I do not think you mention the
topic again. It was put to us this morning that the Human Rights
Act should be altered in some way so that people would have a
list of responsibilities and, if they breach those responsibilities,
that would affect the interpretation of their rights. Is that
a view with which you would agree and what comment do you have
on it?
Lord Falconer of Thoroton: I think,
if you are talking about a human rights Act, you are talking about
ensuring individuals' freedoms, giving people rights. That is
the legal end of the story. The way that those rights are interpreted
may involve people losing certain of those rights if they behave
in a particular way. For example, your right to stay here can
be affected by the way that you behave. The question of responsibilities,
however, is a much more moral issue, I think, than one that should
be dealt with in an Act like the Human Rights Act or in the European
Convention. We give people in this country a variety of freedoms—freedom
of speech, for example. The responsibility that comes with that
right is to exercise the right of freedom of speech in a way that
is responsible. The way that we should deal with it is not by
restricting the right of freedom of speech, save in those limited
cases where it causes actual harm or might lead to crime. We should
urge people to be responsible in the way that they use it. In
answer to your question, no, I would not be in favour of putting
into any Act of Parliament or a definition of people's rights
and freedoms certain conditions before it could be applied, but
I would strongly be in favour of urging people to use those rights
with responsibility.
Baroness Scotland of Asthal: Also,
I think, we are looking, as you know, at legislation in relation
to immigration legislation as to what would happen if there is
a fundamental breach of an individual, and how that would affect
their right to remain here. For example, if one were to commit
very serious offences, would that terminate or mitigate in some
way the right to remain and the conditions on which you remain.
Those, I think, are appropriate ways of us trying to get the balance
between the rights but also the responsibilities. There are real
responsibilities about being a citizen in this country, which
have to be discharged at the same time, when one wants to take
advantage of the rights that are inherent in being a resident
here.
Q111 Mr Beith: Once you are a citizen,
the conditionality disappears. I would have thought with somebody
who is a citizen, it would be disappointing if they have not behaved
themselves.
Baroness Scotland of Asthal: I
suppose I was using "citizenship" too loosely. It is
a right to remain really that we are talking about in this regard.
Q112 Mr Denham: Just to pursue that,
is not the difficulty that at the moment where measures are taken
in criminal law very often to set down what people's responsibilities
are, things they should not do, there is nothing explicit about
the Human Rights Act that would require that to be taken into
account when we are making a judgment on the Human Rights Act:
i.e. the extent to which somebody had put themselves in the position
where their Article 8 rights might be in jeopardy. That is not
something which is taken into account. Common sense and the sense
of fairness might suggest that it should be.
Baroness Scotland of Asthal: I
think that is all tied up with what we did. The Human Rights Act
was our opportunity, as all the people on this Committee will
know, to bring home the European Convention on Human Rights, to
which we had been a signatory for more than 50 years. I think
it is also right to say that the human rights dimension is not
something which is static. It is dynamic. It is changing and we
know that it is dynamic and changing because we can look at how
the jurisprudence has developed with it. There are opportunities
now for us across Europe, working with our partners, to look at
some of the challenges which we are collectively experiencing
and for us to consider how we take this debate forward. That is
something that you will know we are doing at the European table
generally in terms of looking at how we can address some of the
more pressing problems that we have.
Q113 Mr Denham: I think we are aware
of the Ramzy case, as the Lord Chancellor referred to it.
Are there any other test cases that the Government is hoping to
bring forward, perhaps with other European countries, to extend
the interpretation of the European Convention?
Baroness Scotland of Asthal: No,
I was thinking of Ramzy plus, because I think we have talked
about Chahal and you will be aware of our position in relation
to it. It is not just about the ambit of Article 3. It is also
about the threshold that Chahal gave in relation to the
level of evidence, the test of establishing that Article 3 threshold,
which we think needs to be looked as well as the ambit, so it
is a two-pronged issue. That is the most important point. I think,
whatever the outcome of Ramzy, this issue about how we
together look at these issues is one which we are going to have
to look at with our European partners, come what may. This is
a very dynamic area, an area which will not stand still, even
if we wanted it to.
Q114 David Howarth: On the point
about the European partners, I notice from the documents that
when you talk about ways of resolving problems and coming to new
solutions, the one thing you do not mention is negotiating with
all the members of the Convention a new understanding of the Convention
in these problem areas. Is that just thought to be too difficult?
Baroness Scotland of Asthal: I
think this is very much a staged approach, that you address the
difficulties that you have one step at a time. You will see a
number of countries have joined with us in Ramzy. This
is not an issue which simply concerns the UK; it is an issue which
has concerned a number of our European partners, and indeed there
might have been others, but for the timing, who may have considered
joining in. This is not a British-centric issue; it is an issue
which is becoming a very live issue of debate with a number of
our European partners, and it is something that we have to face.
Q115 Dr Whitehead: Following those
questions about the balance between freedoms and possible obligations,
is it not the case that in the practice of the law as it stands,
in two areas there is a required balance under Article 8 where
proportionality is being asked for, as far as judgments are concerned,
between the rights of the individual and the rights of the general
community? Yet that is something the judge is required to make
a specific decision on, despite the fact that there is not anything
much about the rights of the general community, whereas there
is quite a lot about the rights of the individual in the law as
it stands. In 10.2 on Convention rights, there is a statement
that the exercise of freedoms carries with it duties and responsibilities,
but no-one actually knows what those responsibilities are. Does
that suggest that, perhaps in those areas at least of proportionality,
one can say that the state is operating with one hand tied behind
its back in as much as you are simply talking about one person's
liberty being infringed by the exercise of another person's liberty,
and no more?
Lord Falconer of Thoroton: Article
10 is about freedom of expression. Article 10.2 contains certain
limitations on freedom of expression that, for example, go to
the creation of crime or relate to national security. A balance
has to be struck. Some principles have been laid down by the courts.
You have to look at it, to some extent, on a case-by-case basis.
Almost all of the rights—not all but almost all—in
the Convention do involve a balance between, on the one hand,
the interests of the individual and, on the other, the interests
of the state as a whole. That is why it is possible under human
rights law to have a robust defence to terrorism. As the threat
becomes greater and the threat for the community becomes greater,
so infringements of individual liberty could well be proportionate
to the threat to society as a whole. There are balances to be
struck, and there are responsibilities that have to be considered
in exercising certain of the freedoms.
Q116 Dr Whitehead: Is there a distinction,
though, between the rights of the state and the rights of a community,
or would you make a distinction?
Lord Falconer of Thoroton: The
state is not somebody who is, as it were, being protected by the
European Convention. The state has various duties and powers to
protect the community. What is being looked at under the Convention
is: has the state done the right thing, for example, in infringing
freedom of expression, because you need to protect the community
as a whole. The state is not the object of protection; the state
is there to protect, as it were, the general public.
Baroness Scotland of Asthal: One
of the difficulties we have is that Article 8 and many of the
other rights are not absolute. The difficulty with Chahal
and Article 3 is that that is the article which is said to be
absolute and where proportionality does not bite. With many of
the other issues, we can say that you can balance the rights of
the individual against the rights for public protection, but not
Article 3.
Mr Denham: It is a great shame that we
have to close now for a division in the House because we have
a number of other questions. The practicalities are that we should
draw this session to an end rather than come back later. We are
enormously grateful to you. This has been a very useful day indeed.
Thank you very much.
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