Examination of Witness (Questions 60-79)
8 DECEMBER 2003
LORD FALCONER
OF THOROTON
QC
Q60 Baroness Prashar: I was interested
that you described the role of the Human Rights Commission as
narrowly defined; it is in relation to public services and promotion
of respect for human rights.
Lord Falconer of Thoroton: Yes.
Q61 Baroness Prashar: Can you say something
about what you see to be the powers and functions in relation
to human rights?
Lord Falconer of Thoroton: I would
prefer to do it on the basis of the commission as a whole. The
commission will have all of the enforcement rights that the current
anti-discrimination bodies have. In relation to human rights,
we are not, as we made clear at the time, keen for it to be able
to litigate solely on human rights issues; but it would be able,
in the context of the equality and human rights issues, to do
investigations. We need to consider the extent to which it should
have coercive powers in that respect, and the extent to which
those coercive powers should either be dependent upon court-sanctioned
activity or minister-sanctioned activity. All of those issues
are up for discussion in the context of the consultation, the
task force, the White Paper, what responses we get to the White
Paper, and the advice we get from the task force after that.
Q62 Baroness Prashar: Can I ask you about
the response to our report, which was published eight months ago
in March? How will you make sure our recommendations are taken
into account in this process? If you reject any of our recommendations,
will you provide us with reasons for doing so?
Lord Falconer of Thoroton: The
Committee's report was an incredibly significant piece of work
in relation to leading to the announcement made on 30 October.
It will be an important source for the work of the task force,
which leads up to the White Paper, and for others—that is
the various departments engaged in this process. It is not for
me to suggest how you see what our response to this is, but I
think it would be really fruitful for there to be close links
between what the task force is doing and what this Committee is
doing, so that you could see how the process is developing by
reference to your original report, and also by reference to the
input into the White Paper and thereafter what happens once the
White Paper is published.
Q63 Baroness Prashar: How would you encourage
constructive engagement?
Lord Falconer of Thoroton: I think
getting in touch with the task force and see the work it is producing;
identify the work you feel is of greatest value in informing what
the task force is doing. The task force's deliberations—I
do not know what form they will take but they will be published
on line and you will be able to see what they are doing. It is
obviously not for me to say, but you may wish to form a view about
the most effective way of inputting into that process.
Q64 Baroness Prashar: Would you be encouraging
that?
Lord Falconer of Thoroton: Yes,
I would be.
Q65 Lord Lester of Herne Hill: Following
up on powers, I appreciate that you will not want to give a detailed
response, but, as you know, we produced a supplementary consultation
document on powers, and I wondered whether you could be a bit
more forthcoming on some basic principles. First, on the investigative
side, would you agree that the commission will need at any rate
sufficient powers to get the relevant information one way or another
to carry out an investigation?
Lord Falconer of Thoroton: Yes,
of course, but in essence that does not—assume that they
get all the powers from the equality Commissions. Those powers
will be transferred over to the new Commission.
Q66 Lord Lester of Herne Hill: I did
not realise that. You are saying that where the EOC or CRE have
powers to carry out investigations, the new Commission will have
those powers in the human rights area.
Lord Falconer of Thoroton: We
are not going to reduce any of the powers that the existing Commissions
already have. The issue is not that; it is much more about whether
they could use those powers in relation to purely human rights
issues. The issue that needs to be discussed is whether public
powers have got to be used in the context of what would be an
anti-discriminatory investigation under existing powers.
Q67 Lord Lester of Herne Hill: I am sorry,
but I am not making myself clear, and it is very important for
the Committee. You have already indicated, in answer to questions
in the House of Lords that the commission will deal with human
rights generally, not only in an equality context. In the investigative
role of human rights generally, is it common ground that whatever
the detail, the commission will have to have the power to get
the information effectively to carry out an effective investigation?
Lord Falconer of Thoroton: Yes,
but I think there is an issue about the scope in respect of which
those investigatory powers can be used—equality and human
rights only, equality only or whatever. I do not want to give
a misleading answer. I do not want to suggest there will be a
new sort of investigation to be conducted. All I can say at the
moment is that the same powers that are in the anti-discriminatory
bodies will be transferred over; precisely how much wider, in
terms of the scope of such investigations as will take place,
needs to be considered in the consultation processes I have outlined.
Q68 Lord Lester of Herne Hill: Would
your answer be the same on things like third-party intervention
for example? You cannot give an answer at this stage at all.
Lord Falconer of Thoroton: It
is a matter for consultation.
Q69 Mr McNamara: With regard to the question
of whether it should go to the court or to the minister, how would
you say that going to the minister and looking to the minister
for sanction met with the demands of the Paris Principles? Would
it be independent?
Lord Falconer of Thoroton: Would
it comply with Article 6 in other respects? Those are issues that
we need to look at. In a sense, it is tricky to be drawn on the
detail of what the powers may be. That sort of issue needs to
be considered in the course of consultation.
Q70 Mr McNamara: Would you maintain your
stand, with your base line that you would accept the Paris Principles
as a basis on which you would work?
Lord Falconer of Thoroton: We
would, yes; but what they would lead to would depend upon the
nature of the sorts of investigations we are talking about. Where
a particular sort of review is being done, it might be appropriate
in some cases for the minister to be the person who decides whether
or not coercive powers were used in a particular case; but in
others it might not. We need to look at all that.
Q71 Mr McNamara: So it could be.
Lord Falconer of Thoroton: Yes.
Q72 Mr McNamara: It would not be independent
if it had to go to the minister.
Lord Falconer of Thoroton: I am
not sure it would necessarily follow from that, because you need
to see what sort of investigation is going on and whether a ministerial
filter was appropriate in relation to coercive powers. You need
to look at the whole package of what powers are available before
you get to that conclusion.
Q73 Mr McNamara: What if it was something
that was politically embarrassing to the government of the day?
Lord Falconer of Thoroton: You
frequently give ministers powers right across the piece in relation
to various fields, not with a view to him performing a political
function, but to him looking in some quasi-judicial role at other
sorts of issues. I do not know what the answer is until one looks
at all of the various aspects in relation to the particular sort
of investigation that the commission is given power to do.
Q74 Lord Lester of Herne Hill: I am a
bit dismayed because I had thought that the position taken by
the Government was slightly broader. On public inquiries, I quite
accept that the Government does not want a major law-enforcement
role and within the human rights role. I quite understand that,
and I quite understand that it will not mimic the EOC and CRE
powers; but I had thought that the Government would be sympathetic
to the human rights side of the commission carrying out public
inquiries in the human rights fields, beyond equality. If that
is right, then would the Government not also agree that there
must be some power to make sure that the public inquiry is effective
in getting access to information and the rest of it?
Lord Falconer of Thoroton: As
to the first part; are we sympathetic to free-standing human rights
inquiries; that is something that needs to be consulted upon in
the course of a consultation that is going to take place between
now, the White Paper, and thereafter. If and insofar as there
are inquiries that could cover human rights, whether alone or
separately, of course we would like those inquiries to be effective;
and then we would also consider what powers you would need to
give such a body. Both issues have got to be consulted upon.
Q75 Lord Lester of Herne Hill: If the
body cannot carry out public inquiries—I suppose this is
a piece of rhetoric, but I ask the question: what else should
it be doing on human rights if it cannot even do that, and should
there just be an equality commission?
Lord Falconer of Thoroton: No,
because it was made absolutely clear, following very much the
recommendations of this Committee, you saw that we agreed to the
commission having a very significant role in relation to promoting
human rights; and there are other ways of promoting human rights.
I am not seeking to imply a concluded view in relation to the
first two questions you asked. There are ways of promoting human
rights, I believe, beyond inquiries.
Q76 Baroness Prashar: Lord Falconer,
I am sure you would agree with me that for any new commission
to be credible and effective, it has got to be seen to be independent.
Lord Falconer of Thoroton: Of
course.
Q77 Baroness Prashar: As you may recall,
in our report we said that in ensuring the commission's independence,
it should report to and be accountable to Parliament rather than
to the Government. What are your views on that?
Lord Falconer of Thoroton: I agree
completely with the principle underlying your question. The commission
has got to be both independent and seen to be independent. The
current Equality Commission, the anti-discrimination Commissions,
would definitely be regarded as independent. They do report to
Government. It is the most normal way of setting up bodies such
as this. It does not, I believe, compromise their independence.
There have been suggestions—and I cannot remember where
they came from—that the funding and arrangements should
be like the National Audit Office. But that is a unique body performing
a particular function. I do not believe that it has got to be
set up like the National Audit Office, in order to carry conviction
as an independent body. I think the proof of the pudding is in
relation to CRE, EOC and the DRC, all of which would be regarded
as very independent; and yet they are reporting to Government
rather than to Parliament.
Q78 Baroness Prashar: In terms of human
rights, it is a question of holding Government departments accountable,
and ensuring the process of human rights. It seems to me that
it has to be accountable to Parliament so that it is seen to be
independent. The proposed children's commissioner is to be accountable
to a minister, who will be responsible for putting a report before
Parliament. However, in terms of perception, it would look odd
if this new body was seen to be responsible to a department and
reporting to Parliament, whereas if it was actually reporting
to Parliament, it would be seen to be a creature of that and therefore—
Lord Falconer of Thoroton: Apply
that test to CRE, which does not report to Parliament but the
Home Office. Is that regarded as an independent body? Yes. As
far as the perception is concerned, I do not think there is a
perception in relation to those bodies that they are not independent.
Q79 Lord Lester of Herne Hill: Would
you accept that some people disagree with you, including me? I
will write to you about why I disagree. There are serious worries
about whether the CRE is sufficiently independent of the Home
Office in practice if not in form. Since I helped set it up, what
I am saying is not said light-heartedly.
Lord Falconer of Thoroton: I understand
that, and I did not regard it as a light-hearted remark. My view
in relation to the general perception about the CRE—and
I will wait obviously to see what you say—is that it is
regarded as both independent and a body that is not remotely a
creature of central Government.
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