Examination of Witness (Questions 40-59)
8 DECEMBER 2003
LORD FALCONER
OF THOROTON
QC
Q40 Lord Judd: And whether there is an
engagement, what the result of that engagement is. It is on that
kind of information that you can decide—
Lord Falconer of Thoroton: I fully
understand that. It would not be good, I suspect, if I described
intra-government issues in such a way that one sought to, as it
were, enlist a committee such as this on one side or another.
The way it works is, like so many issues in government, where
there is a financial aspect or other legal issues that the Attorney-General's
Department is involved in, or there might be connections with
other departments, there will be discussions. As time goes on,
I hope you will have faith that human rights issues will be championed
and promoted by my Department.
Q41 Lord Lester of Herne Hill: Take an
example of a hypothetical department that seeks very wide and
excessive powers to regulate. Who in Whitehall now would be the
wicketkeeper who would say, "On the face of it, that is excessive
and disproportionate; do not do it"? Is it your Department
or the Law Officers' Department or the lawyers in the actual department?
Lord Falconer of Thoroton: The
Law Officers are the definitive advisers in Government as to whether
or not something is lawful. However, right from the outset of
formulation of policy, I would regard my Department, where there
was an important issue that might engage human rights, as being
the department that should be involved in the policy aspect. I
do not in any way seek to say it is not for the Law Officers to
give, where appropriate, a definitive view as to whether or not
it infringes a particular aspect of the law; but my Department's
role is to promote and champion human rights within and without.
Therefore, when one is formulating policy at the outset, be it
health, education or the Home Office, there should be engagement
with my Department to discuss the formulation of policy. That
does not mean conflict; it means discussion.
Q42 Lord Lester of Herne Hill: I am asking
whether it happens.
Lord Falconer of Thoroton: Yes,
it does.
Chairman: Can I point out to you, Lord
Falconer, that there is a monthly renewal of the power to which
reference has been made under the Terrorism Act 2000, so there
might be a role for your Department at some stage in the future.
Q43 Lord Plant of Highfield: When we
were discussing before you came in about who might ask various
questions, I was asked to focus on social and economic rights
which we have done quite a bit of. I was rather relieved that
you saw your emphasis on civil and political rights as a matter
of priority rather than there being a categorical difference in
your mind between civil and political rights and social and economic
rights, because I do not think it is possible to draw a logical
or categorical distinction between traditional rights, if you
like, and social and economic rights. However, this is not the
moment to pursue that. Can I nevertheless ask you to reflect a
little bit further on social and economic rights, because this
Committee, in its publication and report about the setting-up
of the commission emphasised the importance of human rights elements
and treatment for the elderly, healthcare provision and adequate
housing. That seems to me to be entirely right; and indeed where
rights that citizens feel are most real to them. "What are
my rights in this care home/hospital?" How do you conceive
of rights in those sorts of fields? Although they are concerned
with social and economic provision, are those rights largely of
a procedural kind, namely "you are not being discriminated
against" or "you are not being treated unfairly";
or are we moving down the track of trying to formulate access
to these things in terms of substantive rights—rights to
resources of various kinds?
Lord Falconer of Thoroton: It
connects in with the setting-up of the commission, for obvious
reasons. The setting-up of the Equality and Human Rights Commission
is primarily designed to recognise the huge overlap between equality
and human rights and try and put them in the mainstream of activity.
I am reluctant to get drawn down a route which says we are keen
to get to a point where there is a right to things like a well-financed
old age, for example. We think the starting-point is not to discriminate
against elderly people. Anti-discrimination legislation and human
rights have all got a part to play in that, but in identifying
what the mainstream entitlement is rather than as some separate
add-on when you look at the rights of the elderly.
Q44 Lord Plant of Highfield: But you
would accept that if you stood outside Parliament and asked British
citizens if they thought they had a right to education or healthcare,
they would think that they did.
Lord Falconer of Thoroton: Yes.
Q45 Lord Plant of Highfield: That is
more than not being discriminated against.
Lord Falconer of Thoroton: It
is, but the issue is what is achievable in relation to this. In
terms of what myself and the Government are doing in relation
to human rights, there are the social and cultural rights, and
they are part of mainstream Government activity. To achieve something
in relation to the human rights fields I think involves not ignoring
that bigger social context, but focusing on those that can make
a difference.
Q46 Mr Chidgey: Lord Falconer, in your
opening remarks to us, you talked about how your Department is
driving through the human rights issue with each of the Government
departments, and encouraging them to mainstream human rights.
Without wishing to dwell on the social and cultural rights, there
are some interesting aspects that come out of that. Do you think
that the present distribution of responsibility for human rights
policy across departments is rational? Is it capable of improvement,
or do you have any suggestions for improvement?
Lord Falconer of Thoroton: I think
it is rational. I do not think it would be sensible at this stage
to think of any significant changes in relation to their responsibilities
across departments. I know there is an issue in relation to certain
international instruments. I can see issues about looking to see
whether or not those international instruments have been complied
with and whether it is sensible in every case or in some cases
to be in the Foreign Commonwealth Office rather than the Department
for Constitutional Affairs. They are significant but not right
at the heart of the issue. In terms of the way in which human
rights responsibilities are distributed around the Government,
they are basically rational, and I think the right thing to do
at the moment is to be much more focused on delivering outcome
from that, rather than thinking whether we need a further change
in departmental responsibility.
Q47 Mr Chidgey: You have touched on a
key issue for me, which is the responsibility of the FCO, particularly
in regard to the covenants on economic, social and cultural rights,
with responsibility for reporting compliance to the Government.
That responsibility is primarily a matter of domestic human rights
policy, and it therefore seems more appropriate for your Department
to take the lead responsibility in preparing the report to the
UN, and in chasing up implementation of the UN Committee's recommendations.
Lord Falconer of Thoroton: I could
not agree more. The reporting back is entirely dependent on what
is going on domestically. If and in so far as there is any overlap,
it is much more with what my Department is doing than anything
else. It is in the FCO because there is an international treaty
negotiated with other countries. All the meat of the review is
in my Department, I accept.
Q48 Mr Chidgey: You are probably aware
that we took evidence from Bill Rammell.
Lord Falconer of Thoroton: I am
aware of that. He seemed enthusiastic. He did not look to me as
if he was holding on to it.
Q49 Mr Chidgey: He did say something
along the lines that there were discussions going on between your
Department and the FCO about the allocation of responsibilities
for reporting on and implementing the covenant. Have these discussions
reached any conclusion?
Lord Falconer of Thoroton: They
are still continuing, but I do genuinely see the logic of your
position in relation to it, and I also see that the Department,
wherever the formal responsibility is, will have the meat, and
the burden of determining what is happening in order to discharge
the responsibility of reporting back on the review will be primarily
mine. There will be other departments involved as well, but obviously
we have a responsibility in that respect.
Lord Lester of Herne Hill: There is a
case to the contrary, going back to my own experience in government.
The Foreign and Commonwealth Office, being internationally-minded,
would be a more effective chaser of compliance with the international
bodies than the home departments, which would be on the receiving
end, but would be less keen to comply. Therefore, there is an
argument for saying the Foreign Office is more enlightened than
the darker home departments in this respect. That is the argument,
and my experience is that that is true.
Q50 Mr Chidgey: Can I turn to the situation
between your Department and the DCA/NGO Forum on human Rights
that was established last year? I think I am right in saying that
there has been one meeting of the sub-committee, which discussed
the UK report under CERD, shortly before it was presented to the
UN Committee on the Elimination of Racial Discrimination last
August.
Lord Falconer of Thoroton: Yes.
Q51 Mr Chidgey: The DCA/NGO Forum on
Human Rights has begun reviewing the concluding observations of
each of the UN human rights treaty bodies and discussing, with
relevant NGOs, how these might best be implemented. Are there
any difficulties in making this review meaningful or effective
when the DCA does not have a clearly established lead role on
each of the treaties?
Lord Falconer of Thoroton: The
way the NGO Forum operates is that it will come and speak to various
bits of Government, and in effect have a dialogue about the important
issues. They have done it, for example, in relation to children
and young people issues. They have had conversations with the
relevant officials in that part of Government. Those are not areas
where the international obligations are in every case in areas
where we are in the lead, not just in relation to the particular
policy issue like children, but in relation to the particular
international instrument. The purpose of the Forum is to permit
access to the NGOs to those bits of Government that are dealing
with issues where human rights issues are engaged. I do not think
the fact that we are not the lead on the particular covenant or
instrument is a problem in that respect.
Q52 Lord Plant of Highfield: Can I ask
you a subsidiary question about the role of NGOs. Given that you
are Secretary of State for Constitutional Affairs, do you have
any concerns about how representative or accountable the NGOs
are that you are dealing with? I have no particular view about
it, but it seems to me that there is a question there when Government
is giving some kind of official recognition role to NGOs. How
do you know they are properly representative of a wider range
of views?
Lord Falconer of Thoroton: I cannot
be completely sure, but bringing in people who are not, as it
were, the official machine—which we believe covers a wider
range, obviously, than the official machine could do—is
a good thing, as long as you recognise the point that you are
making, which is that it should not be regarded as the authentic
voice of every single strand of opinion. You will know this better
than I; you have to bear in mind that the various competing voices
may be much more about the degree of articulation rather than
about those issues which should be given greatest importance.
On the Forum, anybody can be asked to come, which probably makes
your point more, Lord Plant. Liberty co-ordinate the NGO membership.
Q53 Mr McNamara: You quite rightly say
that the core work of your Department is implementing the Act.
Lord Falconer of Thoroton: Yes.
Q54 Mr McNamara: One of the problems
we have had in the United Kingdom is implementing decisions where
the decision of the Strasbourg Court has gone against the United
Kingdom. There has seemed to be a reluctance by the Ministry of
Defence, the Home Office and the FCO in meeting their responsibilities
and reacting to judgments, particularly the right-to-life (Article
2) judgments that have come from Strasbourg—the question
of coroners' courts, the role, the right of individuals' evidence
and so on. Do you see it as part of the role of your Department
to bring together those various departments and to get a coherent
reply to the Ministers' Deputies Committee rather than have this
thing going on for over a decade now, as various government departments,
and governments of both complexions, because of policy in Northern
Ireland, are not ready to come to a conclusion, or grant powers,
or allow their actions to be subject to proper supervision? In
particular, in one of the cases concerning the role of the coroner's
court, one of the arguments put to the Committee of Ministers
was that there was going to be no real reason to worry about the
coroners because there might be a public inquiry afterwards. That
is not sufficient, nor is it sufficient to say we are still awaiting
from the House of Lords a decision, because this has been going
on for well over a decade.
Lord Falconer of Thoroton: The
sorts of cases you are describing are cases where, in effect,
the Strasbourg Court has said there has been "unlawful conduct
on the part of the United Kingdom Government". It is then
a matter for the individual department. There is no room there
for what is lawful and what is not. It is then a matter for the
department in breach, or which has got the judgment against it,
and the FCO, to work out what the judgment requires, and what
is required in order to implement it. We are not, in that sense,
the enforcement arm of the Strasbourg Court; our role is in policy
formation. If a judgment has gone against a particular bit of
the Government, it is for that Government department to comply.
Q55 Mr McNamara: You do not see it as
part of your job to encourage it to comply?
Lord Falconer of Thoroton: I would
wish to encourage everybody to comply within—
Q56 Mr McNamara: What do you think of
the delays of up to a decade?
Lord Falconer of Thoroton: I do
not know the detail of the case you are putting to me.
Q57 Mr McNamara: There are a whole series
in Northern Ireland, deaths mainly at the hands of the armed forces,
but not only. It is a question of getting proper evidence, limiting
the powers of the coroner and things of that nature—Article
6 cases and Article 2 cases.
Lord Falconer of Thoroton: You
can see I am reluctant to be drawn into it. I do not know the
answer. I do not know about the individual cases. I prefer not
to comment, if you do not mind, when I do not know—
Q58 Mr McNamara: Perhaps you could comment
on the principles—
Lord Falconer of Thoroton: Sorry.
Chairman: We move on now to the consideration
of the Commission for Equality and Human Rights, which was announced
earlier.
Q59 Baroness Prashar: Lord Falconer,
I want to talk about the consultation process. As you know, we
welcome the Government's decision to establish the Commission
for Equality and Human Rights, and that was our preferred model.
We also appreciate that you have not yet decided on matters like
structure and governance of the new body and on its functions
and powers in relation to human rights. However, it would be helpful
to clarify the role of the task force that has been established
to advise on these matters, and what will be its discretions and
terms of reference.
Lord Falconer of Thoroton: The
terms of reference are very broad. They are to meet over a period
of 12 months, to advise Government. I quote: "The terms of
reference are to advise Government of the role, functions, priorities
and activities of the proposed Commission in furtherance of the
Government's statement of 30 October on future arrangements for
equality of institutions in Great Britain; provide such advice
in preparation for a White Paper, and provide ongoing policy advice,
including assessment of responses to the White Paper, on the range
of issues described above." It is to give advice preparatory
to the publication of the White Paper, which will be some time
in the spring of next year; then, once the White Paper is published
and responses are given, they will give us further advice in relation
to it.
| 
