Examination of Witnesses (Questions 20-39)
15 SEPTEMBER 2003
MR BILL
RAMMELL, MR
JON BENJAMIN
AND MS
HELEN UPTON
Q20 Baroness Whitaker: Do you see
perhaps more action on the part of Mr Benjamin with his opposite
numbers in departments? Do you see how they have been getting
on with the recommendations?
Mr Rammell: Is it permissible
if I ask Jon to respond directly on that point?
Mr Benjamin: One of the ideas
to tighten up our procedures is to have at least an annual meeting
at official level, both to remind departments of this process
and the previous recommendations, and to have a stock-take on
where they have got in implementing the recommendations.
Q21 Baroness Whitaker: If the observations
are on the website, presumably they are equally available to local
government and to the independent statutory bodies, and you would
expect them to pay attention. Do you also write to them?
Mr Rammell: That is what I was
referring to earlier. At the moment we do not, but it is one of
the things I am going to do from this hearing. I am going to write
to the Local Government Association asking their advice on the
most appropriate and least burdensome way.
Q22 Baroness Whitaker: Do you see
merit in combining the departmental roundtable meetings with local
government and independent bodies, or do you think they ought
to be kept separate?
Mr Rammell: That is something,
if I am honest, I would want to reflect upon. Clearly, in terms
of the state's responsibility—and that is what it comes
back to, to implement the covenant—there is a much more
direct responsibility on the part of national government departments,
and I would want to ensure that we are getting that right. Beyond
that, the way in which we involve local government is up for consideration.
I am honestly not sure, given that we want government departments
to be focussing on how they are implementing, to involve local
government in the same roundtable process, which would perhaps
be the best way forward. Having said that, I would like to reflect
on that. I think that is my instinctive response.
Q23 Baroness Whitaker: It is something
we shall hear more about, no doubt. You are going to focus on
an annual stock-take, in the words of Mr Benjamin. Do you see
that as including targets and milestones? It is one thing to ask
what they have been doing, but it is another to ask them if they
have reached the point they said they would reach.
Mr Rammell: I think that that
process is undertaken separately through the PSA targets process.
If you go through each of the articles and areas of responsibility
under the Covenant, in each of those—and, as I said earlier,
it is something the Government is often criticised, often unfairly,
for—there are very stringent, robust targets in place for
progressively enhancing and realising the rights that come under
the covenant. That certainly does take place.
Q24 Lord Bowness: The Committee seemed
to be saying that the provisions of the Covenant amount to legal
obligations. The Government's position seems to be that they constitute
principles and objectives, rather than legal obligations. How
do you reconcile those two views—or perhaps they are irreconcilable?
Mr Rammell: I think that in conclusion
they probably are irreconcilable. I think this is one of the most
important questions that you are considering as part of your inquiry.
I think there are differences between the ways that the Treaties
have set out civil and political rights on the one hand, and economic,
social and cultural rights on the other. I think that the two
sets of rights neither can nor should be implemented in precisely
the same way. I would not want it to be interpreted from that
that because we are not treating them in exactly the same way
that we give any less importance to economic, social and cultural
rights. Indeed, I referred earlier to the speech that I made at
the UN Committee on Human Rights where I stressed the importance
of both sets of rights being mutually reinforcing. We certainly
do stand by our view that the rights set out in the Covenant constitute
principles and objectives. If you look at the detailed wording
of the Covenant, that backs it up. It talks about progressive
realisation with a view to achieving things progressively. It
recognises that all the rights in the Covenant could not be implemented
immediately so that states are required to undertake steps to
achieve them. It talks about things like the "highest attainable
standard", which suggests an ongoing commitment. Having given
this issue some detailed consideration in advance of the hearing
today, I genuinely do not believe that incorporation into domestic
law would improve on the existing legal framework. I think it
is worth underlining that the Covenant does not explicitly require
or recommend such incorporation. The UN Committee has said that
it is for each state to decide the manner of justiciability. I
think it is the case that the Committee has asked more than the
covenant actually requires. There are several significant areas
notwithstanding those within the Covenant that do currently have
legal body. For example, the Sex Discrimination Act, the Race
Discrimination Act, Disability Discrimination Act and the Equal
Pay Act give legal body to a number of the elements within the
overall Covenant. What I am saying, I hope very clearly, is that
I think there would be real difficulties with full legal incorporation.
To give you a flavour of what I mean by that, if you look at the
rights of adequate food, clothing and housing, these are issues
for which there is no absolute standard, and are rightly the business
of governments and their electorates through general elections,
to determine what standard we should achieve. I think that there
is a significant risk that if we were to incorporate, and the
courts were to look at one of those issues in isolation, that
could potentially have profound and adverse consequences on expenditure
in other areas. For example, if the court took a decision on health,
in terms of the adequate standard, and you had recently had a
party that had been elected on a platform to privatise education
expenditure, I think people would ask serious questions and have
concerns about the process that was being undertaken. Finally,
it is also the case that the wording of some of the articles under
the covenant is sufficiently loose and imprecise that if you simply
incorporated this, then the courts would end up making policy
decisions that are properly the responsibility of government.
It is our existing practice, and having looked at this long and
hard I am reinforced in that view.
Q25 Lord Bowness: I can understand
what you are saying; that you can sign up to these things in principle,
but it is for each state to decide how to implement it. Do you
think therefore that the Committee were wrong when they said that
the state party is under an obligation to comply with it and to
give it full legal effect in the domestic legal order? Do you
think that they are going too far in that statement and were not
correct?
Mr Rammell: I have to say that
I read their conclusions very carefully, and that phrase is not
familiar to me. The phrase that I was focussed on was under D11
of their conclusions, where they said that they deeply regretted
that although the state party had adopted a certain number of
laws in the field of the Covenant, the covenant had still not
been incorporated into the domestic legal order. I referred to
that issue in my introduction by saying that I think they were
asking for something that the Covenant does not require us to
do.
Q26 Lord Bowness: I am advised that
it is in their general comment rather than their concluding observations.
Mr Rammell: Can you repeat what
they said?
Q27 Lord Bowness: "The state
party is under an obligation to comply with it and give it full
legal effect in the domestic legal order."
Mr Rammell: We certainly do comply
with the Covenant, and I would argue strongly that that is the
case. I think the dispute is whether you comply by administrative
means in some areas or by full legal incorporation. What I am
clearly saying on behalf of the Government is that there is nothing
within the covenant that calls on us to incorporate legally.
Q28 Lord Bowness: This was not meant
to be any kind of trick question. You are in effect saying to
me that the Government do not agree with that statement.
Mr Rammell: No, we do not.
Q29 Lord Bowness: Presumably, all
these principles could be legislated for. Are you resisting that
really as a matter of policy, rather than the difficulty of carrying
it into effect?
Mr Rammell: I have tried to say
that in some areas we do legislate, and I referred to the Race
Discrimination Act and the Sex Discrimination Act. However, in
some of these areas the wording is so imprecise, and you are talking
about the progressive realisation of rights, which inevitably
leads to a debate about the relative importance of expenditure
on different areas of government policy, that I simply conclude
that that is something within our governmental and political structure
that is properly a matter for government and the general electorate
rather than the courts.
Q30 Lord Bowness: Can I take it a
stage further? All these things are capable, one way or another,
of being incorporated into legislation. As you say, the wording
is not perfect. Presumably, we could legislate if we were so minded.
Has anybody made an assessment of what that would mean for the
UK? We are advised that in South Africa and elsewhere, these rights
are actually provided for. If there has been an assessment of
the effect, what is it; and, if there has not been an assessment,
how can we be so sure that we ought to resist it in the way you
have suggested?
Mr Rammell: Firstly, I think I
need to re-state the position that the covenant does not require
full and direct incorporation into domestic law. It is difficult
to comment on the situation in other countries with different
legal systems. You quote the example of South Africa: I think
it would be more appropriate for incorporation, given their legal
and constitutional structure, than with our own common law system,
arguably. In terms of whether we have undertaken a detailed assessment
of how, in what way and with what consequences we could legally
incorporate, no, we have not undertaken that exercise. Maybe it
is something we should consider, and we can look at that. For
a number of these areas, it is not just an assessment of how and
in what way you would do it; I think there is a principled response
that says that if you go down the road of incorporation in those
areas, you will end up with the courts determining relative government
policies with respect to specific social policy priorities, in
a manner that is properly the responsibility of government and
the electorate.
Q31 Lord Bowness: Turning to the
Charter of Fundamental Rights, do you take the view that even
if it is incorporated and actually made justiciable by a treaty,
that that will have a direct impact on the UK law or do you consider
that the wording of the Charter is sufficiently robust to restrict
it to what it is intended to be restricted to, namely the EU institutions
and Member States implementing EU legislation; or do you take
the view, as some people do, that all that is in the Charter is
going to be incorporated anyway? In that case, our discussion
would to some extent become academic.
Mr Rammell: That is something
that is currently under discussion and is part of the governmental
conference resulting from the Convention. We have expressed repeatedly
our concern that the Charter of Fundamental Rights, as presently
drafted, would present difficulties if it were incorporated legally.
As a charter of aspirations that we strive to achieve collectively
and individually, as Member States within the European Union,
that is one thing, but to go from there to say that it should
be incorporated does present difficulties. That has been our consistent
view, which we have put forward.
Q32 Lord Bowness: It is currently
part 2 of the Draft Constitution. If that were approved, the question
really, Minister, is this: are you satisfied that if that happened
it would only be applied to EU institutions, and the Member States
when implementing EU legislation, or do you think it would apply
to the Member States? There are two views. I have my own view
about it, but two views are being expressed.
Mr Rammell: I am genuinely not
trying to be difficult, but we are in a process of negotiation
at the forthcoming IGC, and we have a clear position that there
is genuine difficulty with incorporation. I am not going to go
down the road of speculating what might happen if we end up with
a different government policy. That is our view and it is one
that we are holding to.
Q33 Baroness Whitaker: These are
very interesting issues. I want to return for a different purpose
to South Africa. Although it has got a written constitution, it
is not intrinsically different, I think, to our country. Do you
have any evidence of judicial reallocation of resources there,
against the political will of the people, as it were? We understand
your arguments of principle, but we would like to know if it has
proved a problem in practice.
Mr Rammell: In terms of judicial
redistribution of resources, no, I have not got evidence to hand
for that; but if you look at the way the covenant has been incorporated
legally into the South African constitution, the major progress
has been on non-discrimination issues. It is very arguable that
the non-discrimination legislation that we already have within
the UK is amongst the most robust in the advanced world. I am
not sure that the analogy with South Africa is one that you can
get a direct read-across from.
Q34 Baroness Whitaker: Have they
not got rights to various economic groups in their constitution?
Mr Rammell: It is difficult to
go into the detail, but my understanding is that in South Africa
they have incorporated broadly the Covenant.
Q35 Baroness Whitaker: You have not
heard that they have come up against—
Mr Rammell: I do not have evidence
to that effect.
Q36 Baroness Whitaker: I would like
to fill out one other bit, and that is the onward process that
the Convention asks for. You mentioned milestones: is that how
you say that we would achieve the full realisation of the rights
of the Convention? This is Article 2.1 of the Covenant where it
asks for onward achievement, over the realisation of rights. How
do we have a process which does that incrementally better, year
after year?
Mr Rammell: I have acknowledged
that we need to tighten up our procedures of implementation, so
that we would probably look at these issues on an annual basis,
waiting for the next periodic review to come round. I come back
to the point that if you look at the PSA targets—and I went
through each of the articles and each of the areas that government
policy covered—there is within every one of those areas
significant and robust PSA targets; so there is a process of benchmarking
that is ongoing. When you talk about how we ensure that we get
to the full realisation of these rights, I think that it is a
moving feast in that it is a constantly ongoing process.
Q37 Mr Woodward: Even though the
Vienna Declaration recommends that States should have a national
power of action for human rights protection, you will be aware
that the CESCR expressed deep concern that the UK has not drawn
up a plan of action. Do you agree with their deep concern?
Mr Rammell: This is a matter that
is the responsibility of the Department for Constitutional Affairs.
I am sure this Committee would agree that the Government has made
real progress in embedding human rights culture into our legislative
policy framework. We do consider that the concrete steps being
taken are as valuable as any within a human rights plan of action;
but in terms of whether we should go further than that, and explicitly
a human rights plan of action, that is something that the Department
of Constitutional Affairs will have to address.
Q38 Mr Woodward: Let me be absolutely
clear about this. I am not going to describe it as passing the
buck, but you are saying that the drawing up of a national plan
of action has nothing to do with your department and is only to
do with the Department of Constitutional Affairs.
Mr Rammell: No, I am not saying
that because, clearly—
Q39 Mr Woodward: What would be your
recommendation?
Mr Rammell: In terms of the progress
that has been made in establishing human rights and embedding
that within the constitutional culture and governmental make-up,
we have moved significantly, and I would want to see that bed
down for some considerable time before we moved further on that
issue. I think we need to look and respond and learn lessons from
the way that that is being implemented before we go a stage further.
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