Joint Committee On Human Rights Minutes of Evidence

Examination of witnesses (Questions 38-59)




  38. Lord Chancellor and Mr Attorney, welcome. It is a great pleasure to see you at the third public session of the Joint Committee on Human Rights. I have no doubt that you are as pleased to see this Committee is setting about its business as we are. To date, we have examined in particular the Criminal Justice and Police Bill and our first meeting was with the Minister of State, Charles Clarke. Last week we were fortunate to have the Home Secretary who was with us for a considerable time talking about his view of the impact and likely effect of the Human Rights Act. Obviously, that is the reason for asking you to appear before us today and we are very grateful that you have juggled your diaries so that you could be with us for today's meeting. I am conscious that you both have meetings to go to and are up against a tight timescale. We will do our very best to accommodate you. There has been a lot of talk, not just in government, but, first of all, in the White Paper Rights Brought Home, but now generally about the establishment of a human rights culture in the United Kingdom. Could I ask each of you to address this question, starting with the Lord Chancellor? What do you understand by that expression? Does it relate specifically to human rights or does it import a notion of human values?

  (Lord Irvine of Lairg) The expression that has been used is that the object of the Act is to promote a culture of respect for human rights across the whole of society and that refers, in particular, to the human rights which are embodied via the Convention and the Act. What I mean and I am sure what others mean when they talk about a culture of respect for human rights is to create a society in which our public institutions are habitually, automatically responsive to human rights considerations in relation to every procedure they follow, in relation to every practice they follow, in relation to every decision they take, in relation to every piece of legislation they sponsor. A culture of respect for human rights is one which shows a high degree of sensitivity on the part of our public institutions to the obligations that derive from the Act. Perhaps the best illustration of the promotion of this culture of respect for human rights is the quite bold provision in the statute that ministers have to make, or not to make as the case may be, a certificate of compatibility when they propose new legislation to Parliament. That means that they and their departments have to apply their minds in a very considered way to whether the legislation is compliant or not with Human Rights Act obligations. If they do make this declaration and in due course, rare event though that will probably be, the higher courts make a declaration of incompatibility, the pressure on them, which I suppose is a cultural pressure rather than an obligation because of the terms of the Act, a cultural and political pressure which will be on them to bring forward under the fast track remedial legislation, is really very considerable pressure. Part of the theory of the Act is that the sovereignty of Parliament is undiminished but the political capacity of Parliament to influence events and to encourage against that background that I have outlined the bringing forward of remedial legislation is obviously very great. That I think is the shortest elaboration that I could give of a practical context for promoting a culture of respect for human rights.
  (Lord Williams of Mostyn) We looked at it on the basis that human rights attach to individuals. They are not donations from an over-mighty executive. This is a specific piece of equipment in the law which puts a yoke on the unfettered executive, was designed to do that and was to establish that individuals have rights as well as responsibilities in the context of a modern, civil society. The second part to your question was: is this a commitment to specific human rights or only to certain underlying values. I do not regard that as an opposition. One has the rights as a necessary, inevitable and welcome consequence of having the values in the first place.

  39. If that is the case, what is the limit on those rights. If we have human rights culture, would it extend just to what we describe normally as civil and political rights or does it also extend to social and cultural rights?
  (Lord Irvine of Lairg) The Act is not promoting a culture of respect for human rights beyond the human rights which the Act itself, via the Convention, gives effect to. Whether more grows out of it is another matter. We have to remember the various balancing considerations in the Convention itself which no doubt will be elaborated all the time by decisions of the courts which may move into these broader areas.

Sir Patrick Cormack

  40. Mr Attorney, you in your answer in effect said the Act protects rights rather than confers them. Would that be fair?
  (Lord Williams of Mostyn) It recognises and reinforces rights that already subsisted in the common law tradition, though perhaps not with the clarity that is described in this Act.

  41. Do you think that the Act does indeed define with adequate clarity the rights which you would wish to see protected?
  (Lord Williams of Mostyn) An over-precise definition in the Convention and therefore in the Act would have been a serious mistake because, without being unduly chauvinist, the great glory of the British common law has been that it has been able to develop as circumstances require. This is an extraordinary opportunity given for people to say and for the courts to decide is my private and family life, for instance, adequately recognised in the context of A, B and C? This is always going to be, as the Lord Chancellor said, a developing process and it ought to be.

  42. What would you say to the person who would allege that this is a straitjacket for Magna Carta?
  (Lord Williams of Mostyn) I would say that they have not read it or, having read it, have not understood it because it is simply an additional transfusion into that body of common law which has always been the glory of our system.

Baroness Whitaker

  43. How are you going to know that the human rights culture has come about? We used to talk about output measures and performance indicators. Have you any of those to judge whether the human rights culture is happening?
  (Lord Irvine of Lairg) That is part of the purpose, I dare say, of your Committee. You will be working out, I dare say, means for yourselves of monitoring what you will regard as success or not. I would say, for example, that the truly remarkable amount of preparation that went in, in Whitehall, across all departments, to estimate and evaluate major statutory provisions, practices, procedures of the departments, to audit for Human Rights Act compliance is itself a yardstick of success of the Act itself. I believe it was very wise of the government to do what not everybody agreed with, because we have waited for such a long time for a Human Rights Act that there was an understandable impatience, which I shared myself, to get on with implementing the Act; but when I look back at it my belief is that taking time to prepare as thoroughly as Whitehall did has borne dividends. In other words, what we are looking for as measures of success is not merely the courts saying that this, that or the other has to change, not merely the courts saying, "We have rigorously to interpret this piece of the statute in a way which will make it compliant", and that might be said to be a measure of success, or you could in one view of things say that a declaration of incompatibility was a measure of success to the extent that it was then corrected by government. A much stronger measure of success is voluntarism and arriving at a state of affairs not where cases have to be multiplied but where cases are less frequent because public institutions have put their own houses in order. Coming back to what the Attorney says, I basically of course agree with him too. We must not look for a state of affairs in which everything which we did before was wrong and everything therefore is going to have to be corrected by this brave, new regime. The Attorney is absolutely correct that a respect for human rights is imbued in the common law and therefore it is unsurprising that there has only so far been one declaration of incompatibility in the Alconbury case and that is under challenge in the appeal to the House of Lords who are considering their judgments. It is also true to say that the reason for the need for a Human Rights Act is precisely because statute law is perfectly capable of trespassing upon basic human rights and, when it does so, the Act does give a new remedy and a new right for citizens.
  (Lord Williams of Mostyn) How do you measure it? First of all, outcomes, methods and structures. The Crown Prosecution Service, for instance, for which I have responsibility, has instructions that human rights matters must be taken into account when the decisions about prosecutions are made. We have issued new guidelines on disclosure in criminal cases, which is part of the context that we are discussing. There will be less successful appeals to Strasbourg over the next five to ten years but in any event—I agree with the Lord Chancellor entirely—if one looks for a second at the case of Simms v The Home Office, and I put in for emphasis the Home Office did not succeed, Simms is a prisoner. He has no access to a right of appeal except investigative journalists. The House of Lords say that he must have that access. I do not myself regard that as a failure in consequence of the Human Rights Act. I regard that as a blossoming success.
  (Lord Irvine of Lairg) I think what has just come from the Attorney is an extremely important point. When government goes down, let us say, to a declaration of incompatibility or when government loses a judicial review, that should not count as a defeat. The notion of it being a defeat for government when it does not win a case is an entirely wrong way of looking at it. Of course, if I was a minister who was found to have acted perversely or unreasonably, I would certainly regard that as a defeat but, that apart, if a minister gets it wrong and then puts it right because a court tells the minister to do so that should not be regarded as being a defeat. This whole new culture arising out of the Human Rights Act should be regarded as a cooperative endeavour between the executive, Parliament and the judiciary to deliver a new, rights based culture. So-called defeats or defeats which may be hailed by the media as defeats for the government should not be regarded as defeats but should be regarded as steps on the road to the improvement of our governance.

Mr Miller

  44. The Committee is aware that you are both leading advocates for the Act. Listening to both your previous answers, it sounds as if you are pleased with the effect that the Act is having in so far as you are able to judge within government and the courts. Has the Act had any surprises up its sleeve, any unexpected effect on departments and the courts, whether beneficial or disadvantageous?
  (Lord Irvine of Lairg) These are very early days. We must bear in mind that implementation was comparatively recent, in October. I do not doubt that there are going to be many surprises round the corner. I am sure that events will surprise us all but I dare say—and I am not going to comment on the merit of a particular decision or predict the likely outcome in the House of Lords—the declaration of incompatibility in relation to the whole planning system made by a divisional court was surprising, yes. The decision of Scottish courts which was to the effect that the temporary sheriffs in Scotland were not independent because of the manner of their appointment was something that I do not think would readily have been predicted. However, we dealt with it perfectly simply and straightforwardly in England, positively, by introducing a new administrative procedure for the removal—it scarcely ever happens in any event, and has never happened under me; it happened once under my predecessor, for a judge—and we put in place new administrative safeguards which secure their independence. There I would say positively good came out of it because what we have now is a better system without dragging the legislature through an administrative system of securing the independence of the judges better. Yes, there are surprising events but you recover from them and deal with them.
  (Lord Williams of Mostyn) It is there to be the burr in the saddle and make the horse buck. It is not departmental processes that need to be examined but ways of departmental thinking. That is the interesting thing to me and I have not been surprised at all.

  45. You referred to the fact that it is all very new but in preparation for what we have in front of us your Department undertook a very widespread training exercise for the lay magistracy. How do you intend to evaluate the success of that training programme and how are you going to continue it in the future?
  (Lord Irvine of Lairg) There was a hugely extensive training programme. We took a very bold decision in government, looking back on it. We could have decided that the Human Rights Act points were only to be taken in the higher courts but we decided not. We decided that a Human Rights Act point could be taken at any level in the court system. A Human Rights Act point could be taken in the magistrates' court and there are 30,500 lay magistrates in the country. The proof of the effectiveness of the training, or the proof of its ineffectiveness as the case may be, would be if you were getting absolutely bizarre decisions from magistrates' courts, in lower courts, acceding to Human Rights Act points which were fanciful and should have been rejected. There is no evidence of that whatsoever as yet and therefore I would attribute that either to the common sense of the individual but also take a little bit of credit for the quality of the training. There are no bizarre or aberrant decisions of which I can think. I well remember how, when we had a whole new system of labour law, employment law and industrial relations law in the 1970s, there were many aberrant decisions of industrial tribunals up and down the country which took quite a long time to be corrected by the higher courts. I would attribute the absence of that state of affairs today, particularly in the criminal jurisdiction where there is every temptation to try a point for what it is worth, to the quality of the training which was very intensive and has been much praised.
  (Lord Williams of Mostyn) The Bar itself did training, just by way of example, to complement that which the Lord Chancellor's Department had set out. 4,600 members of the Bar, which is about the total number of those who practise in crime, themselves went on voluntary training. That was very encouraging. We worked together. Secondly, we do have a mechanism, a fast track monitoring system, where an official from the Lord Chancellor's Department meets with officials from my Department, the CPS and the Serious Fraud Office constantly to monitor cases that we may think need the review and the second view of the higher courts. The court system accommodates that with fast track appeals which are then recorded and disseminated throughout, in my case, the whole of the criminal justice system. That is extremely efficient and it actually works.
  (Lord Irvine of Lairg) Another point that is worth making is that the senior judges have been enormously helpful in urging the judges of lower courts to take a severely practical and sensible view about Human Rights Act points that are taken. Nobody who is committed to the success of this new regime could begin to regard with anything but horror the assertions that there would be chaos in the courts as a result of the Human Rights Act. The opposite has been the case. There has been no chaos. There has been no delay and a large part of the success of this is attributable to the senior judges who have urged the lower courts to appreciate that this is a country which is highly respectful of human rights. It would be extraordinary if the world had to be turned upside down in this country as a result of the Human Rights Act, and so it has proved.

Lord Goldsmith

  46. Lord Chancellor, many would see the Act as one of the great constitutional developments of recent years, perhaps recent decades and centuries. The government has been putting human rights as an important element of its agenda. You and the Home Secretary perhaps though are amongst the few ministers who seem to put human rights at the forefront of speeches which you make. You have been asked questions in relation to the human rights culture. Is there more that perhaps could be done in terms of putting forward that human rights culture in other areas which other ministers are dealing with and other departments are dealing with when their policies are explained to the public?
  (Lord Irvine of Lairg) I suppose most of my colleagues think they make quite a sufficient number of speeches as I do and test the patience of the great British public as a result. You are quite right that the Home Secretary has emphasised it but the Home Office of course is in the lead on this piece of legislation. I certainly have emphasised it but it is a highly important piece of legislation and it does deserve being promoted. No doubt this will be one of the good results to come out of your Committee.


  47. One of the things that strikes me is it is obviously right that you and the Home Secretary are two ministers whose record in promoting the Human Rights Act has been exemplary, although some would say that given your constitutional responsibilities, if not you then who? There have been cases when I have wondered why human rights points were not taken. Let me give an example. When it was discovered that the hospital notes of a 68 year old woman had "DNR" written on them, which turned out to mean "do not resuscitate", and to all intents and purposes she was a healthy woman, it strikes me that is a marvellous human rights point which somebody in government could have raised, to say, "Under the Human Rights Act, it will not be possible for people to behave like this." It strikes me that there have been occasions where some quite important opportunities have been missed to show that the Human Rights Act is not a criminals' charter, as some people would have us believe, and is not just about the courts, the Crown Prosecution Service or about law but is about the opportunities and the obligations for all of us.
  (Lord Irvine of Lairg) I would not like it to be inferred from my answers that I accept that the only ministers who have advertised this important, new, legislative change are myself and Jack Straw. I was present, for example, at an important speech that the Prime Minister gave welcoming the American Bar Association to London in the Albert Hall, with a very large audience. A large part of his speech was devoted to recommending our introduction of the Human Rights Act and spelling it out in the context of the whole of our constitutional reform programme, but ministers cannot be talking about the one thing all the time. I believe that other ministers have likewise, in general speeches, referred to this important area of reform.
  (Lord Williams of Mostyn) We have to be propagandist but not for ever. We need to be mechanics to make the car work. The "do not resuscitate" was wrong. It did not require the intervention of the Human Rights Act to point out that it was wrong because even if we had not passed the Act it would still have been wrong. There are other questions, for instance, on the criminals' charter which is, I agree with you entirely, superficial and ill informed. It is quite useful to remember that the application made by the soldiers from the Parachute Regiment in the inquiry which is going on at the moment in Northern Ireland for anonymity was upheld by Lord Woolf substantially on the basis of their right to life. I have made that point until I am blue in the face and I have not found it reported anywhere.

Sir Patrick Cormack

  48. Perhaps it will be now. This really follows on from something the Lord Chancellor said a few moment ago, the prophecy that the courts would be swamped and that this has not happened. Do you expect the position to remain constant or do you think we should expect a steady increase in cases?
  (Lord Irvine of Lairg) I do not really know. I am a little surprised that there has been such a small, extra input so far. I expect that as the Act beds down, as lawyers become more familiar with it, there will be something of an increase above the present level but nothing that the system is not geared up to accommodate.

  49. You almost anticipate my next question. You do not think contingency plans as such are necessary?
  (Lord Irvine of Lairg) Contingency plans have been made.

  50. Could you elaborate a little?
  (Lord Irvine of Lairg) Yes, certainly. Provision has been made in my own budget for extra court sitting time and extra provision of legal aid funds in Human Rights Act related cases. I believe that that provision will prove sufficient for any increase in business that results. The notion of chaos in the courts is absolute nonsense. In fact, the speed of the system is increasing regardless of the Human Rights Act business. Let me elaborate that slightly. There are scarcely any cases, either civil or criminal, which are exclusively attributable to the Human Rights Act. What the Human Rights Act does typically is provide additional points of argument in cases that would in any event be brought forward.

  51. We do not have a swamping of cases; we do have contingency plans; and yet you also said that you were somewhat surprised that there had not been more use made. Could you elaborate on that a little?
  (Lord Irvine of Lairg) Not really, because I thought that there would be more. It is purely subjective. So far, I have been proved to be wrong.

  52. In what particular areas would you have expected more?
  (Lord Irvine of Lairg) The area where typically we might have expected more would have been in the area of the criminal law in relation to Article 6. I am not saying that there has not been increased business. The Attorney would be able to illustrate from his experience new points that are being taken which the Crown Prosecution Service must deal with, but all I am saying—and this is not a science—is that I am pleasantly surprised that the volume of new business is not quite as great as was anticipated, but I enter the precaution: we are a very short time in from implementation and more work may emerge. The notion of chaos in the courts and that the heavens would fall in was ever false and the prophets of doom have already been proved false and will continue to be.

  53. You have said that three times so it must be true. Would the Attorney like to elaborate a little?
  (Lord Williams of Mostyn) One of the very heartening things to me was, having an oversight job on the whole of the government legal service as well as the Crown Prosecution Service, how much training was done, how confident lawyers in public service had been in dealing with these points. There have been occasional glitches. For instance, magistrates thinking that they have to grant bail on every occasion except when evidence was called. A number of cases went to the divisional court. The divisional court put it right; end of story. The magistrates have to give reasons. Of course they are going to be in trouble because they have not given reasons in the past, but they should in their brain have had the reasons ready for coming to their conclusions. It is heartening that people have risen, quite willingly, to thee new challenges. I get no indications at all that courts are being held up. Quite the opposite. It may be that if the issues are focused in the minds of prosecutors or government lawyers you avoid the disabilities and the dangers before you get to involvement with any part of the legal system, whether criminal or civil.
  (Lord Irvine of Lairg) That is a very good example. Under Article 6, in order to ensure a fair trial magistrates have to give reasons. I doubt that there is anyone in this room who would dispute that a reasoned decision for or against you is better than an unreasoned decision. Nowadays, the magistrates consider the requirements of the offence; they say whether the facts were proved or not proved. They give an assessment of the credibility of the witnesses in front of them and they then reach a decision as to guilt or innocence. It takes a little bit longer but, on the other hand, it does lead to a more structured decision making process and one that gives greater satisfaction.

Mr Browne

  54. On the subject of the comparatively small number of cases that have arisen from the implementation of the Act, is there a possibility that in civil cases the fear of costs may discourage people from raising what could be quite complex human rights issues? It would be unfortunate if that was the case obviously, but is there room for litigants who raise arguable human rights points being excused from the potential liability of their opponents' costs?
  (Lord Irvine of Lairg) First of all, these Human Rights Act points arise in cases which are going forward in any event. Therefore, I do not think that there is a cost deterrent at all. It would not be practical in a case to detach the costs that are associated with arguing a Human Rights Act point which is bound up with a lot of other points anyway. As far as legal aid is concerned, the second highest category of cases for which priority is granted for legal aid is Human Rights Act cases. The first category is cases involving child care and the interests of children.

Lord Lester of Herne Hill

  55. That is the first thing you have said that I mildly and respectfully disagree with. Of course on the legal aid front the guidance is admirable and gives a very high priority to human rights but on the subject of costs 49 years ago Lord Evershed's committee recommended that one ought to be able in advance of a case, in some cases of public importance, to get a judicial ruling that at any rate the applicant would not have to pay the other side's costs in any event because of the public interest in arguing it. My personal experience is that there are people who cannot afford the deterrent effect of £10,000, £20,000 or £30,000 worth of costs in a one or two day judicial review and therefore do not bring the case. Would it not be desirable to encourage the courts to widen their discretion to be able to give a preemptive costs indiction in a particular class of cases of real public importance so that at any rate the litigant in that situation is not deterred? That is quite apart from legal aid. I am only speaking of the other side's legal costs and the threat of having to pay them under the usual rule.
  (Lord Irvine of Lairg) I do recall that we did debate. This point was raised during the Human Rights Bill. Views were expressed. My own view is that I do not recognise this deterrent on individuals who have good, soundly based Human Rights Act points to raise. There are all manner of pressure groups in this country which are very ready to support well founded Human Rights Act points. I do not accept that there is a cost deterrent. However, as ever, we listen to Lord Lester.
  (Lord Williams of Mostyn) It is available in some cases, I believe, in the case of Reynolds v The Sunday Times, with which Lord Lester and I have a passing familiarity. If I am not mistaken, I think that leave was given to The Sunday Times to go to the House of Lords on the basis that Mr Reynolds as a private individual would not have to pay the costs if he lost.

  56. I put my question badly. What I was seeking was not about Human Rights Act cases; it is about all civil cases like Reynolds in which an individual litigant may be deterred from bringing the case because of the fact that he will not know the costs consequences until afterwards. As Evershed indicated half a century ago, there might be a case—for example, the Attorney General, he recommended, to go to court and seek an appropriate order in very unusual circumstances, but, as the Lord Chancellor has said, this has been debated in the Human Rights Act context. It does seem to me to raise an Article 6 problem in general if someone is deterred from bringing a case because they are not eligible for legal aid and they are threatened by the costs of the other side.
  (Lord Williams of Mostyn) There is work that I am doing at the moment. Increasingly now, the law officers are getting asked to provide amicus or amici curiae to argue cases perhaps on discrete principle in the higher courts. That has been increasing, so I am now working through, I hope, a protocol which will indicate areas where the amicus would be suitable. In some of those cases the "ordinary" litigant will not be troubled at all. It is very much a first step. That work is going on at the moment and should be completed in the next four to six weeks.

Baroness Perry of Southwark

  57. My question relates to the ministerial statement of compatibility with new Bills. You have been a shining example of revealing the thinking behind the statement and the reason for the belief that it is compatible, but I was very struck by the Lord Chancellor's answer to the question about the culture. A tremendous amount of work goes on in government departments in searching through clauses of a Bill to make sure compatibility permeates the entire Bill. It would be enormously helpful to have some of that background reasoning and thinking rather than simply a bald statement, particularly for Parliament. Do you think it might be given voluntarily rather than this Committee, for example, asking for evidence from government departments?
  (Lord Williams of Mostyn) It is certainly possible. The downside is that one is going to have endless screeds about pros and cons and reasons. Not all departments need to take the law officers' advice on a particular section 19 statement. I would not like there to be endless litigation about the reasoning behind the section 19 statement. Having signed some of them, it is a solemn occasion when you are putting your fingerprint down on history and people do take it very seriously. What would trouble me would be the endless argument and litigation about whether or not the basis of the section 19 statement could be upheld. I think both of us prefer to be open rather than not. We would certainly look at that as experience develops.

  58. I can see the difficulty for litigation. In the one and only experience we have had with the Criminal Justice and Police Bill, it was enormously helpful to expose the thinking behind the statement.
  (Lord Irvine of Lairg) It really depends upon how many processes we require. I am not expressing necessarily a closed mind or hostility to the suggestion at all but it is a very large step for the minister to give his certificate of compatibility. Then the matter can be tested in Parliament. Amendments can be put down. Contentions can be advanced that the Bill, in this, that, or the other respect, is not compatible and there can be very thoroughgoing debate in Parliament on that subject. Who is to say that the minister might not change his mind and then accept an amendment or bring forward a government amendment? We must not devalue the role of Parliament in this process, but this Committee—am I right?—did seek in relation to the Criminal Justice and Police Bill an explanation from Charles Clarke of the thinking behind a declaration of compatibility. No doubt he would have offered it as of course it would be offered in Parliament in debate on committee on any Bill where these issues arose. The reason for my hesitation about the suggestion is that, if you arrive at a view that the Bill is compatible with the Convention, to set out an elaborate range of potential arguments why it might not be and why you wrestled with them and why you have overcome them seems to me to be rather self-indulgent. It seems to be an excess of process, perhaps. Once you have come to that view, surely it is Parliament's function to explore the declaration of compatibility. The means exist within committee stages and of course there is the backstop of this Committee to follow the interesting, I thought, innovative course of asking for an explanation in relation to a particular declaration on a Bill of a Minister of State.
  (Lord Williams of Mostyn) Particularly if you have a very large Bill. Say it was the Government of Wales Bill. If it is eight parts and endless schedules, it is very difficult to give a reasoned justification why every dot and comma in every part of it is compatible. If we have particular requests which tend to be focused on particular aspects of the Bill and particular clauses, as the Lord Chancellor says, I think that is probably a more fruitful way of going about it.

  59. Supposing in the future—and we do not know what the future workings of this Committee will be—the report to Parliament that this Committee made did highlight certain areas of controversy, where there had been difficulty in the human rights aspects of the Bill. It would be helpful then, rather as the Delegated Powers Committee publishes with its reports comments from the government department concerned, to have something like that.
  (Lord Williams of Mostyn) Which we always respond to extremely fully, extremely promptly, in correspondence to the committee and then find it very difficult—not possible, in my experience—to persuade the house that the Delegated Powers Sub-Committee was wrong.

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