Examination of witnesses (Questions 60-76)|
MONDAY 19 MARCH 2001
60. I wonder if the Attorney would agree that
it would be consistent with the culture of magistrates having
to give a reasoned opinion, officials to be aware of that very
excellent publication, "The Judge Over Your Shoulder"they
too have to give reasons for their decisionsfor the third
leg of our government, the executive, also to be able to give
the reasons for compatibility. It seems to me a little unusual
for him not to.
(Lord Williams of Mostyn) I do not think so. I see
the superficial attraction of that but the magistrates are coming
to a discrete conclusion on a limited area, where you can give
reasons. If you have a vast Bill, the explanation for compatibility
is going to be as big as the Bill because you are going to have
to go through every dot and comma. It seems to me that what one
wants is the ability to have an explanation. The ability to have
an explanation is determined in the magistrates' courts by the
requirement of Article 6. The ability to have an explanation here,
as the Lord Chancellor says, is that if the questions are put
they are either put by this Committee, which will have a developing
role, I am sure, or they will be put specifically in the context
of a particular part of a particular Bill, like for instance the
International Criminal Court where people will ask about particular
(Lord Irvine of Lairg) I do not have a closed mind
on this. I think this is a very interesting area. My initial reaction
is to say, no doubt rather boringly to the Committee, that the
suggestion seems to put the burden in the wrong place. If a minister
in good conscience gives the thorough consideration that I know
is given to compatibility, surely those who have a particular
reason, maybe in relation to a particular, narrow part of a Bill,
for thinking that it is not compatible, surely the burden is on
that individual to make that point and then it can be thoroughly
looked at in Parliament, where it belongs. I am not by any manner
of means closing my mindand it would not be for me to do
so anywayto a larger jurisdiction for this Committee in
this area, but I felt that I should express that view in any event
before we moved on.
61. I wanted to follow that a little because
the experience we have had so far, with one Bill looked at in
detail, may indicate that it is not quite so difficult. I happen
to have had the same view that you have both just indicated now
about the difficulty of doing it. One reason for that is that
sometimes it is clear to a department that a particular section
prima facie affects a particular Convention right, freedom
of expression or freedom of association, whatever it may be. The
real point is not that. The real point is what is the present
social need? What is the public interest which is to be balanced
against what may be a limited apparent infringement of that right.
i wonder whether having that explained may not sometimes be easier
than what does sometimes happen in Parliament, which is not a
very focused debate on what is the issue in relation to a particular
(Lord Irvine of Lairg) I have to say that I think
that is an interesting idea. If there was some issue in a particular
Bill which really leapt to the eye as having a controversial implication
for a particular Convention right, I dare say as we think about
this further a possibility might be in the explanatory memorandum
to say something more than might otherwise be said on this subject.
Yes, it is a possibility.
(Lord Williams of Mostyn) Conventionally, some of
these issues are set out at Second Reading when the minister introduces
Chairman: The Committee, probably each of us
individually, had some concern about the child curfew orders in
the Criminal Justice and Police Bill. We had a memorandum on the
Bill from the Home Office. This was one of the issues we raised.
On reading, from memory, paragraphs 34 to 53 of the Home Office
memorandum which dealt with this issue, we found what the Home
Office had to say very persuasive. It was an extremely useful
exercise and one that perhaps we would want at some stage to commend.
Lord Lester of Herne Hill
62. I wonder if I could bring together the concerns,
as I see them, of the Committee. What we are searching for is
a practical system that will not lead to endless adversarial confrontations
but simply a good way of doing what the Lord Chancellor described
in I thought a very good phrase as a cooperative endeavour across
the three branches of government. Parliament is bound by the Convention,
just as the government and the courts are, but Parliament does
not have access to legal advice in the way that the government
does through the Attorney General. Parliament depends upon a statement
of compatibility and the reasons that are then given which must
not include legal, professional privilege unless that is waived.
It seems to me that it ought to be perfectly possible in a well
ordered administration, which we have, without any extra work
being done, for the officials who advise ministers as to why the
Bill is compatible to be able to do a summary of that and to provide
it on a routine basis, the same with affirmative resolution procedure
on the support of legislation, which is another matter that the
Attorney General Dealt with in a very interesting and important
way. Then I think our Committee, or for that matter any parliamentarian
if they have points they wish to raise, of course will go on doing
that, but the vice of the present system is that it is so random.
If I get up in the House of Lords and ask a point, Lord Williams
of Mostyn, as the Minister of State for the Home Office, gives
me a very reasoned account. When Lord Campbell of Alloway on another
famous case had got up and asked a series of questions, the poor
man got absolutely nowhere at the time. I am not criticising the
minister; I forget who it was even, but it is no good having it
depend on individual, especially lawyer MPs or peers, raising
questions and then the minister responding in the course of the
debate. We just want a good, practical system.
(Lord Williams of Mostyn) One possibility is to have
an increased focus on relevant occasions on prelegislative scrutiny,
not for every Bill but for the Bills that might be chosen. That
is a capable of being a way forward.
Sir Patrick Cormack: Many people would like
to see that.
Chairman: It may be possible for a different
kind of use or expanded use to be made of the explanatory notes
which would give a broad outline of the principal aspects of the
Bill which give rise to discussions about compatibility, identifying
what the issues were and perhaps the case law which informed the
final view on compatibility. It seems to me that there could be
a role here for explanatory notes.
Sir Patrick Cormack
63. Taking up the point that you made that you
made a second ago, Attorney, would there be something to be said
for the Standing Committee having to establish to its own satisfaction
that the declaration of compatibility was indeed absolutely acceptable
before proceeding to any consideration of the Bill?
(Lord Williams of Mostyn) I would certainly like to
look at that. One has to be fairly discreet about the Bills one
is looking at; otherwise we would all get bogged down and, horror
of all horrors, there would not be any new legislation which of
course would be dreadful.
(Lord Irvine of Lairg) It really is a question of
getting the process at the parliamentary level sufficient and
not excessive. The government must get its legislation through.
Everybody agrees with that. The long-stop of legislation that
is not compatible is the courts. You cannot put something in Parliament
which is equivalent in thoroughness to a court's determination
whether a particular provision of a Bill is compatible or not.
It is a search for balance here.
Lord Lester of Herne Hill
64. I have to ask the neuralgic question about
the role of the Lord Chancellor and the Law Lords and Article
6 of the Convention. I suppose the simplest way of putting it
is like this: the Royal Commission on House of Lords Reform made
proposals. The Law Lords, in a very important statement of 22
June, made clear the need to separate legislative from judicial
functions in the case of the Law Lords. Would I be right in thinking
that the position is that the Lord Chancellor and his fellow Law
Lords consider their own position case by case but, in view of
the multiple functions of the Lord Chancellor, he has made it
clear that, for example, in constitutional and human rights cases,
he would be emphasising, in the way that he decided whether to
sit in the case, the importance of Article 6 and the apparent
as well as subjective absence of bias, where government might
be directly or indirectly involved?
(Lord Irvine of Lairg) I have resolutely declined,
and I do on this occasion decline, to define any category of cases
in which always and in all circumstances it would be inappropriate
for a Lord Chancellor to sit. What I think is very important to
remember about Article 6 is that it does not prescribe a particular
constitutional arrangement for any country that subscribes to
the Convention. The decision in relation to the Bailiff of
Guernsey made it absolutely plain that the effect of Article
6 is to guarantee individuals a fair trial and not to prescribe
for any country party to the Convention what its constitutional
arrangements should be. I would always address in relation to
a decision, whether it is to sit on a particular appeal, whether
to do so might breach Article 6. There is a huge range of litigation
in the House of Lords which does not conceivably affect the interests
of the executive. I have no doubt at all that I would be able
to abstain from sitting in cases which might give rise to Article
6 concerns, and I have no doubt if I was minded to sit in one
which others thought would my fellow Law Lords would be the first
to say so. I do not see any difficulty at all in selecting appropriate
65. I am very grateful. Other members of the
Committee might not be aware of this, so far as the Law Lords
are concerned, am I right in saying, they have made a statement
making it clear that they will not be exercising judicial function
in respect of matters where they have entered the political arena
as legislators? That is a rather crude way of summarising it.
(Lord Irvine of Lairg) There was a Parliamentary statement
made by Lord Bingham, and it was followed by a Parliamentary question
and Parliamentary answer by me, it is there in Hansard, on the
record, and it sets out the position.
66. I have a specific question which arises
from that point and I have two which arise from the memorandum
from the Attorney General. If I may first draw your attention
to paragraph 2.3 of your memorandum which says, "The Act
has also actively contributed to raise the awareness amongst CPS
prosecutors of the rights of victims and witnesses. Prosecutors
are using a Convention to highlight the scope of the rights of
victims and witnesses in the criminal process and how and to what
extent these and the rights of society as a whole have to be balanced
against the rights of the accused". What has been the practical
effects of that raised awareness? Can you give us examples of
how it operates?
(Lord Williams of Mostyn) I personally prosecuted
and defended at the criminal bar for quite a long time. I felt
a constant sense of reproach about the way we dealt with victims
and witnesses, they were almost regarded, and still are in part,
as optional extras. Without the complainers there can be no trial.
They are not the only rights, but I do think their rights have
been inadequately thought about, let alone considered in practice.
The Lord Chancellor, the Home Secretary and I were of one opinion
on this, from April 2001 there will be a much better service for
victims in the control of the Crown Prosecution Service. They
will be entitled to have a letter of explanation where the CPS
has made a decision to alter or withdraw charges and the opportunity
in certain serious cases of having a face-to-face interview to
have such a decision explained. That is extremely resource incentive,
and I do not mean cash, it is very, very difficult to have to
do that job of human explanation to someone who is in distressed
circumstances. We have run it out in seven pilot areas. We will
do it. The instructions have gone out that the Crown Prosecution
have to do it and we will have the resource. It is not an easy
job. I go to the Crown Prosecution Service headquarters most weeks
and the Solicitor, I know, has been to every area at least once.
It is a marvellous idea and we will push it forward. One tiny
example, if I can be tedious for a moment, a girl of 16 comes
home and tells her father that she has been raped. She is then
interviewed properly, discretely and in a dignified and decent
way by a woman detective constable who is trained and she says
half way through, "It was not rape actually, I thought I
was pregnant". If anyone can help me to explain why we discontinue
that case to the father I would be a very happy man indeed. So
it is quite difficult. The truth is they are entitled to know,
it is a right, and that is what we will be providing, not least,
I think, because we hope to have the Victim's Charter finalised,
after consultation, by November of this year. We do not deal with
victims and witnesses properly.
67. In that definition of victims do you include
the victim's family, particularly in the context of a death on
(Lord Williams of Mostyn) Undoubtedly. We have been
very, very bad at that, and I think that it is noticeable recently
that sentences for causing death by dangerous driving are indicating,
first of all, what Parliament said, in doubling the penalty from
5 to 10 years, and that is starting to filter through; secondly,
that people in those circumstances do not regard them as road
accidents, they regard them as someone having caused the death
of someone who is close to them.
68. As a patron of road peace I welcome that
(Lord Williams of Mostyn) We have not done it properly.
It means endless work, it means people doing different jobs. We
were quite certain, the Chancellor, the Home Secretary and I,
that it should be the Crown Prosecution Service, so that it can
be monitored. As you know, there is now an independent inspectorate
of the Crown Prosecution Service and it is one of the aspects
of the CPS work that he can look at at any time, either on a thematic
basis nationwide or on a particular area of inspection. This is
a complete transformation of the way we deal with victims and
witnesses. The witness, once alienated, will never be a witness
the next time round.
69. Mr Attorney, you undertook, I gather, in
response to the Lords Delegated Powers Committee the Government
would make a convention and compatibility statement in respect
of affirmative statutory instruments. What has been the effect
of this undertaking?
(Lord Williams of Mostyn) May I read out what I have
(Lord Williams of Mostyn) "Apparently you did
say this when in the Home Office", in answer to Lord Lester,
if I remember rightly. We will be perfectly content to do that.
I think that the Home Secretary gave evidence to the Committee
and gave an illustration, in the transcript at page 27, for instance,
on one of the Prevention of Terrorism Orders of 2001, which actually
did contain that statement. As far as I am concerned, and colleagues
are concerned, we wish to have the matter upon us and we will
discharge the duties that we have offered to.
71. Finally, Lord Chancellor, in public speeches
about the Act both you and the Home Secretary have stressed that
the Convention rights are not founded on unbridled individualism.
You have said that the wider interests of society are also important.
Does this approach risk obscuring the important fact that Convention
rights are just that, they are individual rights and they are
only to be limited where restriction is permitted under the Convention,
and then only when it is a pressing social need? Is there not
a danger that the presumption in favour of the right would be
lost, which would potentially undermine the development of the
human rights culture, particularly in Government?
(Lord Irvine of Lairg) I have not intended in the
expressions I have used to distract attention away from the precise
language of the Convention, which is what has to be interpreted.
It is always a danger if you use a different form of words from
the words of the Convention that people will say you are giving
the wrong impression. I certainly have not intended to depart
in any way from the language of the Convention or the need for
the courts to interpret that language and apply it to the facts
of the case. But, for example, it is correct that there is a balancing
of interests involved and I think people find it quite reassuring
to know that rights are not absolute but have to be balanced by
social considerations. In a recent case, for example, in relation
to offences committed on a housing estate the effects of the conduct
complained of upon the law abiding majority had to be taken into
account under the Convention. In a recent case when the Scottish
courts were not upheld by the Privy Council in relation to disclosing
who was the driver of the motor vehicle at a particular time the
court took account of the gravity of offences on the road and
entered into the balancing consideration that the Convention requires.
Perhaps it might be wiser and solemnly always to intone the language
of the Convention and not depart from it. I think people do find
it reassuring to be told that this is not some kind of absolutism
gone mad but there is, written into the Convention, balancing
considerations, which the courts balance, in the illustrations
I have given, and arrive at the decisions which many people would
think to be socially right.
Lord Lester of Herne Hill
72. For completeness, if I can just ask the
Attorney about the Crown Prosecution Service and whether there
have been any difficulties as a result of the Human Rights Act
on four matters? First of all, the decision whether to prosecute
for criminal offences; secondly, making decisions about the use
to be made of evidence; thirdly, the use of Public Interest Immunity
certificates in criminal proceedings and; finally, the disclosure
of material to the defence more generally. I think we heard a
bit about the last one.
(Lord Williams of Mostyn) Could I take the last one
first, please. We had a very useful consultation exercise between
prosecutors, defenders, the Criminal Bar Association, the Law
Society and the Bar Council and I put up the disclosure guidelines
very, very recently, within the last six weeks, and all of these
bodies agreed that these were a significant improvement, so that
is something. It is not a consequence of the Human Rights Act,
it is a consequence of a different way of thinking, and that all
being approved by everyone, which is not common. PII certificates,
we use them very sparingly. As is known, it is the individual
minister who takes responsibility for claiming the PII. All I
have to do is ensure that the certificate is in proper form. Even
then, the certificate from the minister always says that it is
for the judge to decide ultimately. It is fair to say that the
consequence of Sir Richard Scott's inquiry have been fully learned.
PII is sparingly used and the ministers know they cannot shelter
behind any suggestion that I have approved what they said. I simply
approve the form of the certificate. On evidence, I found no difficulties
there at all. I think that what we put out, our Guidelines to
Prosecutors, incorporate the question of human rights and I have
not seen any difficulty at all in deciding whether to prosecute,
nor have I had any difficulty when I have to authorise the prosecution
myself. We try and approach it in a way which is compatible with
the Human Rights Act. We have found no difficulties in practice
Sir Patrick Cormack
73. I infer from what you both said you are
quietly happy with the way things have started, you believe the
Act is beginning to function, modestly but properly, and you believe
that Parliament and the courts are both behaving sensibly and
properly towards it. Would that be fair?
(Lord Irvine of Lairg) Yes.
(Lord Williams of Mostyn) Yes.
74. Do you believe, therefore, there is any
need for a Human Rights Commission?
(Lord Irvine of Lairg) I have never excluded the possibility
of a Human Rights Commission. We debated the possibility, certainly
in the House of Lords, I am sure it was debated in the House of
Commons as well. What we have got, of course, at long last is
a Human Rights Act, we have a Joint Committee of both Houses on
Human Rights. I do think it is timely to wait and see how the
system beds down. We have lots of commissions in this country:
We have the Equal Opportunities Commission; we have the Disability
Commission; we have the Commission for Racial Equality, why not
another Commission as well? I think that some might think that
too many commissions are too much of a good thing and the case
has to be made out. I also think that constructive thought could
be given to whether or not what is required is an over-arching
single Human Rights Commission with subdivisions reflecting the
existing Commissions. I think quite a lot has been accomplished
in very recent times. Does the Attorney have anything to add?
(Lord Williams of Mostyn) When we discussed this I
think the proposal which was put by the Lord Chancellor was that
this Committee would be set up and do its work. Then, I think
I paraphrase accurately, if this Committee had a strong recommendation
in favour of a Human Rights Commission I think the Lord Chancellor's
phrase was that he would give it a fair wind.
Lord Lester of Herne Hill
75. Since Sir Patrick has raised this question,
I wonder whether the Lord Chancellor would agree that one of the
options that might be considered is whether one could merge the
equality agencies into an Equality Commission and have a Human
Rights Commission, as in Northern Ireland. I am not suggesting
that the Government snaps to it, but would that be one of the
possibilities so that one reduces the number of quangos rather
than increasing them?
(Lord Irvine of Lairg) When I was floating for a single
Human Rights Commission I was thinking of reducing the number
of quangos very substantially. I do not want to cast any doubt
on the Government's part, because there is none, on the quality
of the work done by the existing Commissions, it is of a very,
very high order. The issue is whether we have a multiplicity of
separate Commissions or think constructively along the lines of
reducing that number, perhaps, as I was floating, down to one.
That seems to me to be a very fruitful area of consideration for
Sir Patrick Cormack: I think we should take
76. I have one other quotation from the memorandum,
but this time not from the memorandum from either of you, gentlemen,
but from the Constitution Unit of the School and Public Policy
of University College, London, who state in their memorandum,
"Looked at overall the Government's litigation strategy in
relation to the Human Rights Act is a live one and reflects the
belief that on most of the occasions when Convention points are
raised they will be without merit, and a robust defence should
be mounted in court". They want to build on that. Is that
observation true? If not, what is the Government's litigation
strategy in relation to that?
(Lord Irvine of Lairg) I certainly do not think that
is an accurate way of putting it at all. The Government should
not be excessively risk adverse, the Government has to be willing.
Obviously, where a very fundamental Human Rights Act is taken,
if the Government thinks that the existing state of affairs is
right, sensible and compliant then it has to be willing to argue
its corner in the courts. On the other hand, the Government has
to be willing to learn from experience and to consider on their
merits very, very carefully, Human Rights Act points which are
advanced and be ready, without the need for litigation, to change
its approach if need be. That is why I said at the outset that
it is quite wrong to regard every Human Rights Act point that
is taken against the government as a hostile act which has to
be resisted to the uppermost on a die in the ditch basis, of course
that is not right. A constructive view has to be taken of whether
it is right to maintain that the government has got it right and
whether it is right to learn from experience and consider with
an open mind whether the point which is being taken is both right
and would lead to better administration of acceptance.
(Lord Williams of Mostyn) I do not believe it to be
correct. First of all, if you look at the Act, one of the questioners
of government, quite right too, is the free press. We wrote in
in Section 12, as it were, the particular importance of a free
press and a free society. If we thought that all of the points
going to be taken were likely to be useless we would not have
written in Section 12 in the Act at all to reflect Article 10.
Can I just give one illustration, because I can see that our time
has run out, Thompson and Venables is a recent case with incredibly
difficult, subtle cross-currents and counter-arguments, all of
which in blank have validity and legitimacy. As Attorney General
I intervened and had counsel there to put the arguments. If anyone
looks at those arguments which were put, which were substantially
accepted by the President of the Family Division, I do not think
that anyone with an open and fair mind could have said that that
was an obstructive approach, nothing could be further from the
truth. That whole scheme of the Act demonstrates, I think, a rather
superficial polemical approach to that. Sometimes there is genuine
doubt, not all government departments are perfect, and we want
a definitive and determinative ruling, that is what the courts
are there for. We have not spent all of this time introducing
this Act to have that attitude.
Chairman: Lord Chancellor and Mr Attorney, thank
you both very much for coming here today and sharing with us your
views about the impact of a different way of thinking. May I also
say to you that we have written to the secretaries of state about
how they see the impact of the Human Rights Act on their departments.
I think it is probably right to say we have been very impressed
in the way in which government departments themselves have looked
at human rights issues, both within their departments and within
legislation. I am also heartened by the fact that some of them
have written to say to us that where members of the public have
made contact with government departments they themselves have
raised human rights points when asking for advice or information
from the department. That is certainly an indication that you
are dropping that stone into the pond and the rhythm effect is
starting to happen. Thank you both very much.