Joint Committee on Statutory Instruments Minutes of Evidence

Memorandum by the Home office


  1.  The Committee asked for a short memorandum on Home Office efforts to implement the Human Rights Act, to build a human rights culture; and regarding the effects so far.


  2.  The Home Office has lead responsibility for the policy of the Human Rights Act. This reflects the Department's traditional concerns with the liberty of the subject and its responsibilities for the civil and political rights which make up most of the European Convention on Human Rights (ECHR). Under collective Ministerial supervision, and with the Lord Chancellor's direct assistance, the Home Office prepared the Human Rights Bill and co-ordinated departmental support for its passage through Parliament. Accordingly, the Home Office was responsible for bringing the legislation into force and thus for spearheading the preparatory work needed for successful implementation. Home Office preparations involved close liaison with the Lord Chancellor's Department and central departments, thus supplementing the traditional co-ordination role of the Cabinet Office.

  3.  An important feature of the Home Office approach to preparing for the Act was the early decision to engage Non-Governmental Organisations (NGOs) and other external experts directly in preparations for the Act. A dedicated Task Force was formed with both Government and NGO representatives working together to help co-ordinate efforts. The full membership and terms of reference of the Task Force are at Annexes A and B respectively.


  4.  Working with the Human Rights Task Force the Department:

    —  published a wide range of guidance and information material on the Act for public authorities and for the general public;

    —  issued a series of letters at Permanent Secretary level to keep Departments up to date, make recommendations and to collect and pass on information and good practice;

    —  assisted with training, directly and indirectly; and established a dedicated helpdesk and website;

    —  organised publicity for the Act, including a youth competition and associated launch event, linking London, Cardiff and Belfast.

  5.  Throughout, the Department sought to act as a beacon of good practice, implementing its own guidance and learning directly from its own as well as others' experiences.

  6.  The Act is intended, over time, to help bring about the development of a culture of rights and responsibilities across the UK. This involves looking beyond questions of technical compliance. The Convention rights need to be seen as a set of broad, basic values which are accessible to and can be shared by all throughout the UK—and which are fully integrated into the democratic policy making process. Although it is still very early days, it is possible to identify ways in which the Convention rights are being "brought home" for public authorities and for the general public.


  7.  The Task Force's workplan is at Annex C. Members made a significant contribution to guidance on implementing the Act and building a culture of rights and responsibilities. This material greatly assisted Whitehall and external public authorities in their preparations. The Task Force "Core Guide" for public authorities, together with all the other guidance produced can be visited at:

  8.  In addition to its work on the development of appropriate guidance, the Task Force held special sessions with representatives of various departments and agencies to discuss detailed preparations in particular sectors and to offer advice. Suggestions made during these sessions were taken away by Departments and incorporated into their work-plans.

  9.  Task Force NGO members have also monitored press coverage of the Act and helped promote public confidence in the Act by rebutting misleading media coverage before the Act came into full force. Together with the Home Office Communications Directorate they have helped to ensure that balanced, factual information is available to the media.

  10.  The Task Force has continued to meet, following implementation, to help monitor the early effects of the Act and to deal with some remaining issues, for example the position of subsidiary public authorities and regarding the equality commissions. This work should be completed by May 2001.


  11.  The work done by the Task Force and the Home Office Human Rights Unit was designed to achieve the following main outputs in all Government Departments:

    (a)  top management ownership of Human Rights Act issues, giving a clear lead, direction and support;

    (b)  internal reviews of legislation, procedures, policies and practices to check, so far as possible, compatibility with the Convention rights;

    (c)  guidance and instructions for all staff;

    (d)  training on the Act provisions and on the underlying policy;

    (e)  awareness raising, guidance and training for subsidiary and hybrid public authorities, agencies and other bodies for which individual departments are ultimately accountable;

    (f)  awareness raising and information for the public.

  Set out below is a description of how the Home Office delivered these outputs. Similar activity occurred in other Government Departments.


  12.  The Home Office outputs for each of these aims were:

    (a)  Top management ownership:

    —  14 major speeches by Home Office Ministers (published on the website);

    —  a Steering Group of Home Office Management Board Members meeting regularly to oversee preparations for the Act;

    —  a subsidiary dedicated network of contact points in each Directorate, feeding the Human Rights Unit, which co-ordinated the Departments' work;

    —  (following implementation) monthly summaries for Home Office Ministers of issues and developments, providing an overview of how the Act is operating in practice, with a grid of available information on pending and completed HRA cases before the courts.

    (b)  Review of legislation, policies and practice:

    —  Continuous reviews of legislation policy and practice within each Home Office, directorate, summarised for reports to the Task Force;

    —  Presentations to the Task Force from the Home Office, and from the Immigration and Nationality Directorate and the Prisons Service;

    —  Over 50 Human Rights Unit presentations at seminars, conferences and training courses (including Civil Service College courses);

    —  Participation in interdepartmental groups dealing with criminal issues, civil issues, "hot cases", cross-cutting issues;

    —  Account taken of all relevant devolution notices from Scotland.

    (c)  Guidance for Departments:

    —  Guide for Whitehall Departments (Cabinet Office lead)—3,500 copies, and made available to every Department in soft copy;

    —  Core guidance for public authorities (Task Force lead)—6,000 copies and to every Department in soft copy;

    —  Three newsletters (Task Force)—3,500 copies of each;

    —  Five letters from the Home Office Permanent Secretary to colleagues asking for reports and suggesting examples of good practice.

    (d)  Training for staff:

    —  Training for over 5,000 main Home Office Staff. The training was designed to affect attitudes and change culture as well as impart information;

    —  Guidance made available to all staff on Home Office intranet. Staff instructions updated where necessary and suitable specialist guidance developed and circulated, for example to the Prison Service and probation services.

    (e)  Public Authorities:

    —  An introductory leaflet for public authorities (250,000 copies);

    —  A leaflet for hybrid bodies (10,000 copies).

    (f)  Members of the public:

    —  User friendly website, with all guidance, policy, speeches, and links to other websites, around 10,000 hits per week;

    —  Helpdesk for members of the public, Government Departments and public authorities;

    —  Human Rights Act Competition for young people in partnership with the Citizenship Foundation and Canon;

    —  £1.2 million blitz advertising campaign in September—October 2000. Advertisements in national, local and ethnic press;

    —  Launch events in London, Cardiff and Belfast on 2 October, with Ministerial speeches and video link-up;

    —  Network of Departmental press officers to help monitor Press coverage on the Act and provide the media with relevant information. Assisted by members of the Task Force;

    —  Two million copies of the Introductory Guide to the Human Rights Act in 13 languages as well as braille and audio;

    —  250,000 copies of the Study Guide to the Act, developed in partnership with the Bar Council.


  13.  There have been 21 Home Office Bills before Parliament since section 19 of the Human Rights Act came into force on 24 November 1998. They are listed at Annex D. Ministers have given positive statements of compatibility for them all, under section 19(1)(a) of the Human Rights Act.

  14.  Home Office procedure for dealing with statements of compatibility takes account of the guidance on section 19 contained in the guide to Whitehall Departments. As the guidance points out, a Minister in charge of a Bill is generally not in a position to disclose detailed legal advice, nor should it be necessary to do so. What is required is an outline of the Convention points considered and the thinking which led to the conclusion reflected in the statement. In the Government's view this is most suitably addressed in context, during debate on the policy and its justification. In this way, the Convention is seen as a matter which is for consideration by the whole House as a central part of policy making rather than a technical matter of compliance to be assessed with specialist external help. Although Ministers retain discretion on how to handle particular debates in the light of the precise circumstances, the guidance (as amended) is clear that he or she should always be ready, in debate, to explain the statement of compatibility and to deal with any specific issues which might be raised in debate.

  15.  In considering whether to make a statement of compatibility the basic test applied is whether, on the balance of probabilities, the provisions of the Bill would be found compatible with the Convention rights if challenged in court or tribunal. The Minister's view is reached only after very careful consideration but is not legally binding. Ultimately, only a court can determine the Convention rights and give a definitive view as to whether a particular provision complies with those rights or not.

  16.  Reaching a view on whether a provision is compatible with the Convention rights is not an exact science. Nor are the considerations solely technical and legal. Many of the Convention rights are qualified or limited in some way, balancing the rights of the individual against the rights of others and those of the wider community. The ability of the State to interfere with a right frequently depends on assessment of a pressing social need and what is necessary and proportional in a democratic society. These are primarily matters for judgement by the executive and legislature. The case law in the UK and in Strasbourg explicity recognises a degree of discretionary judgement in such matters for the State authorities. Thus, whilst the Convention provides a set of basic values, a method for assessing conflicts or limitations of rights, and some guidance from case law, it is to be regarded as a complement to the democratic government, not a substitute for it.

  17.  The Department's experience with section 19 so far is that the process has ensured that Convention rights issues are more clearly identified and addressed during the preparation of a Bill and during internal policy consideration. Some questions have been raised during debate on the various Bills as to the basis for issuing a positive statement. These have often been of a technical nature. The Convention has yet to establish itself in general Parliamentary debate as a useful framework, readily accessible to non-lawyers, for assessing policies and debating legislative proposals. General familiarity with the basic Convention concepts relevant to policy making is likely to increase over time through the work of the new Committee.


  18.  Compliance with the European Convention on Human Rights is not new to domestic law or policy making. The nature of the Department's responsibilities has meant that it had built up considerable direct experience of the Convention rights in the European Court of Human Rights. Awareness has been highest in areas of the Department's work such as police, immigration, prisons and criminal justice where the Convention rights are most engaged Preparations for the Human Rights Act have sensitised the entire Department to the Convention rights and to their value as a framework for policy analysis and development. The process has also made the Department more methodical in its approach to Convention rights issues in policy making and service delivery.

  19.  The Department's review of legislation and procedures is a continuous process. However, the early work identified a number of areas for further consideration. Where appropriate the conclusions were implemented in primary legislation, (for example, the Regulation of Investigatory Powers Act 2000, which put permission for covert investigations on a statutory footing) and the Terrorism Act 2000. Other legislative schemes put before the House since November 1998 have taken account wherever possible, of conclusions from Human Rights Act preparatory reviews. The Statement of Changes in Immigration Rules (cm 4851) is an example of this. However, it would be wrong to say that these or other changes would not have been made without the spur of the Human Rights Act. It has been established policy for many years that all legislative proposals should comply with the ECHR.

  20.  Although it is early days, judgements so far have tended to confirm that the Department's policies and legislation have got the balance about right. Since 2 October, courts have not made any declarations of incompatibility under section 4 of the Act against Home Office legislation. There has only been one declaration of incompatibility (the planning law case of Alconbury etc), and that is under appeal. Between October 2000 and February 2001 there were just 14 notifications under section 5 of the Act that a Court was considering an application for a declaration of incompatibility. This seems to indicate that the statute book is generally in good heart. We expected that there would be challenges to legislation and procedures. But there does not seem to be the flood of spurious or vexatious challenges which might have damaged public confidence in the operation of the Act.

  21.  The criminal justice systems appears to be coping satisfactorily with the Human Rights Act. Key interest groups meet frequently to discuss developments and to consider recommending cases for ``fast track'' hearing so as to avoid uncertainty and delays. The general background statistics at Annex E show the waiting list at the Crown Court, comparing the year on year position following implementation of the Act. There appears to be no sudden increase in volume of business following 2 October 2000. The Lord Chancellor's Department have undertaken research on the impact of the first three months of the Act's operation and results should be available very soon.

  22.  Reports from the CPS and others suggest that the right to a fair trial (Article 6) has been the source of most challenges under the Act. The overwhelming majority of all challenges are dealt with at first instance and resolved in favour of the Crown. Early leading judgements have tended to confirm pre-implementation assessments of Departmental policies, on evidence procedure and the substantive criminal law. In one (Scottish) case the Judicial Committee of the Privy Council held that provisions of the Road Traffic Act 1998 requiring certain information from registered owners of vehicles did not breach the right to a fair trial, including the privilege against self-incrimination. In another (the case of MacIntosh) the Council held that Article 6(2), the right to be presumed innocent, had no application to the confiscation provisions in anti-drug trafficking legislation. And there have been important decisions on the implementations of Article 8 for immigration decisions (Isiko, Samaroo, Mahmood). On the other hand, the interpretative obligation in section 3 of the Human Rights Act has been used to secure a compatible meaning of primary legislation, for example, the nature of the ``exceptional'' circumstances which may avoid an automatic life sentence for certain offenders under the Crime (Sentences) Act 1997.


  23.  Levels of public awareness about the Act are being monitored using questions incorporated in an ongoing Government research survey. First results are expected shortly. However, there are indications that the public advertising campaign for commencement, and the extensive media attention throughout summer 2000 have had significant effects. During the first four weeks over 20,000 people telephoned for copies of the Department's introductory guide or study guide; and there were 160,000 hits on the website during the same period. An estimated 1,200 written inquiries about the Human Rights Act were received by the Human Rights Unit during the first month of operation. It is likely that public interest will deepen still further as cases mentioning the Human Rights Act are reported in the media and come to local attention. The Government proposes to continue to draw attention to the Human Rights Act in speeches and articles and will seek to respond directly to misleading coverage.

  24.  In schools, rights and responsibilities including the Human Rights Act will be taught as part of Citizenship education, which will be compulsory from the start of the school year 2002. The Department will make available suitable factual material, such as the joint Home Office/Bar Council study guide, as required. With the Department for Education and Employment, the Home Office is also looking to build on its early initiatives to raise youth awareness:

    —  Regular national competitions to promote and celebrate active citizenship;

    —  Helping to fund initiatives by voluntary bodies for example the Human Rights Act edition of the Young Citizen's Passport, of which 250,000 copies were sent to all schools in England, and Wales last autumn.

Human Rights Unit, Home Office

February 2001

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