Joint Committee On Human Rights Minutes of Evidence


Examination of Witnesses (Questions 1-19)

RT HON LORD FALCONER OF THOROTON QC AND RT HON BARONESS SCOTLAND OF ASTHAL QC

30 OCTOBER 2006

  Q1 Chairman: Good afternoon, everybody. Can I welcome for the first time in this Parliament to the Committee Lord Falconer, Secretary of State for Constitutional Affairs and Lord Chancellor, and Baroness Scotland of Asthal, Minister of State at the Home Office. Thank you for coming. We are conducting two very closely related inquiries at the moment, one into the case for the Human Rights Act and the other into pre-legislative scrutiny of Home Office policy proposals. We initially propose to focus on the case for the first, so we will be firing questions to the Lord Chancellor, though not exclusively, and later on the Home Office aspects to Baroness Scotland, but, of course, if either wants to chip in on the other's answers please feel free to do so, because there is obviously a lot of overlap. We know you are both giving evidence tomorrow to the Commons Home Affairs and Constitutional Affairs Committees as well on similar but different subjects. There are a lot of very similar things going on but they are subtly different. Can I begin by asking you to think back to the various developments in the spring which gave rise to the current debate? We have identified three issues which appear to deal with this debate on whether the Human Rights Act should be amended or repealed or whatever: the Afghani hijackers, the Anthony Rice case and the foreign prisoners for deportation issue. We wrote to the Prime Minister asking for further details of the Government's thinking on these cases but, although, Lord Falconer, you replied to us on behalf of the Prime Minister, we did not get a response to the specific questions, so unless either of you wants to make an opening statement perhaps we can go straight on to those issues. We will start with the Afghani hijackers and remind everyone a little of the factual basis for this. It started with the findings of the Panel of Immigration Adjudicators in June 2004 that the nine individuals concerned would be targeted for assassination by the Taliban if they were returned and that there would be insufficient protection in Afghanistan if they were returned, and therefore it upheld their claim for protection under Article 3 of the ECHR. The Immigration Appeal Tribunal refused the Home Secretary permission to challenge those findings and the Home Secretary did not apply for judicial review of the tribunal's decision. It was accepted that there were no reasonable grounds for regarding any of the individuals as a danger to the security of the UK. Their convictions were overturned in the Court of Appeal, by which time all but two had actually served their sentences anyway, and then ultimately your review, Lord Falconer, described the case as "at a heart a judicial review on the basis of abuse of executive power". The Home Secretary appealed against part of the decision on the sentencing. In August the Court of Appeal dismissed the Home Secretary's appeal. The Court of Appeal described the original judgment as "an impeccable judgment" but the Home Secretary described the decisions as "inexplicable and bizarre". The first question to you, Lord Chancellor, is, do you regard the decisions of the High Court in the case as "inexplicable and bizarre" or "impeccable"?

  Lord Falconer of Thoroton: The Court of Appeal's conclusion has been accepted. The Court of Appeal's conclusion is nothing to do with the principle of whether people who hijack planes should be allowed to stay here. The Court of Appeal's decision was about whether there is something called "temporary admission" that the Home Office can grant, and the Court of Appeal concluded that there is not something called "temporary admission".[1] If you want to create a right to remain without leave then you need to legislate for it and that is the issue now for the Home Office. In the context of the reasoning of the Court of Appeal, I do not think their reasoning can be faulted. I think the bigger issue in relation to the Afghani hijackers was the proposition whether people who hijack should be allowed to stay here, and I think the answer to that is that if they face death or torture or something similar abroad then the law is that they should remain. The question of a balance does not arise because, as you rightly say, Mr Dismore, it was held that they posed no threat to this country.


  Q2 Chairman: Presumably, from your answer, there has been no new evidence to contradict the findings of the High Court that they would be targeted for assassination if they returned.

  Lord Falconer of Thoroton: The decision that was made was one made in 2004. Whatever view you take about the basis of them staying here, everybody agreed that at regular intervals it would be possible to review what the situation was in Afghanistan and a point could well be reached where there was not a threat to them in Afghanistan, in which circumstances it would be for the state to apply back to the Immigration Appeal Authority[2] and they could then decide whether or not the threat had gone. I am not seeking to challenge the decision in 2004. At that time the position was that the Immigration Appeal Authority decided it was not safe for them to go back. It does not mean there might not come a time (whether it is now or in the future I do not know) when it was safe for them to return, and that would obviously depend on developments in Afghanistan and the state of the government there.


  Q3 Chairman: At the moment there is no evidence contrary to the previous findings?

  Lord Falconer of Thoroton: I have not got any, but I have not looked specifically at that issue.

  Q4  Chairman: Can I go on to deportation of foreign prisoners? We will look at this in more detail later on in the session, but could you or Baroness Scotland provide any evidence that the Human Rights Act or its interpretation by decision-makers as opposed to a simple administrative error was responsible for the failure to consider whether foreign prisoners should be deported on their release in any substantial number of cases?

  Lord Falconer of Thoroton: No.

  Baroness Scotland of Asthal: And no, I have nothing to add either. The failure to consider just over 1,000 cases for deportation was caused really by a range of factors being addressed through the Home Secretary's priority areas of action and the Human Rights Act was not one of them.

  Q5  Chairman: So when the Home Secretary said on 7 May, "The vast majority of decent, law-abiding people . . . believe that it is wrong if court judgments put the human rights of foreign prisoners ahead of the safety of UK citizens", that was nothing to do with this?

  Baroness Scotland of Asthal: No, I think what he was talking about there in more loose terms was not the operation of the Act but the interests of foreign national prisoners above the interests of the people in this country. He was speaking far more colloquially than the technical way in which we would now consider it in this discussion.

  Q6  Chairman: Could I go on to Mr Bridges' report on the Rice case?

  Lord Falconer of Thoroton: Can I take my jacket off?

  Q7  Chairman: Yes, sure, please feel free. In the previous comments that we saw on this in Mr Bridges' letter to the Committee he does not blame the Human Rights Act. In fact, he says in his recent letter to us that he does not refer to the Human Rights Act at all in his report, and he refers to a subtle impact on the decision-making processes. I think you have received a copy of that letter.

  Lord Falconer of Thoroton: I have.

  Q8  Chairman: Do you accept in the light of that letter that his report does not demonstrate that the Rice case is an example of a tragic misapplication of human rights considerations or any misunderstanding or misinterpretation of the Human Rights Act or the ECHR by officials?

  Lord Falconer of Thoroton: I would like to agree with it. I think Mr Bridges' letter is a very difficult letter to follow. It is a very disappointing letter in the context of his report. However, his report appears to be saying—this is the report, not the letter, which is a pretty opaque document—that he is concerned that officials involved in the decision in the Anthony Rice release question were "distracted by human rights considerations". Nobody reading that could have come to any other conclusion but that what he, Bridges, was saying was that instead of focusing enough on public protection they were focusing too much on the arguments put of a human rights nature in favour of Rice. His letter saying he was not referring to the Human Rights Act at all seems difficult to align with what he says in his report. I think we have to go on the basis of what he says in his report, not because we should ignore what he said in his letter but because he raises a particular issue which we need to address, and if there is a risk that people are being so distracted we need to deal with it not by changing the legislation but by making sure that people are not so distracted. In this letter that he sent to you the evidence he produces for this is that there is lots of consideration of "fairness" to Rice by MAPPA, and similar in relation to the Parole Board, but not enough consideration of public protection, and some inference can be drawn from that. I do not want to resile from our response to what Bridges said because we were very worried by it, in my view rightly. We thought it was very important that proper guidance should be given and we thought it extremely important that it should be underlined that public protection comes first in relation to deciding when a life prisoner should be released, and if the life prisoner does constitute a threat to the public then he should not be released. I do not think Mr Bridges' recent letter threw much light on the issue.

  Q9  Chairman: I think what he was saying was that whilst in theory everybody knows what the rules are and what the principles behind the Act are, in practice, when faced with a heavy workload and lawyers arguing the toss, people were looking, as you say, at the rights of Rice rather than at safety considerations. Is really what this comes down to the need for better investigation, not of whether officials in the system are prejudicing public safety through misunderstandings or misapplications of the Act, but rather whether the Act gives rise in practice to "subtle processes", to which he refers, which lead to public safety considerations being given too little weight?

  Lord Falconer of Thoroton: If I may say so, you have put his case a lot more clearly than he put his case in the letter, but assuming that that is what he was saying, yes, I can see a need for making it clear and underlining that there needs to be total clarity about the importance of public protection and the need to make it clear that people should not be—and this is overstating it—overwhelmed by the arguments of lawyers about where people's rights lead to.

  Q10  Chairman: I have dealt with three specific cases now, all of which have been part of this amorphous argument about repeal of the Act or amending of the Act, but would you accept that none of those three examples, which are some of the examples that have been used in some cases by ministers, demonstrates a need to consider amending the Act or repealing it, and is it really the case that in each of these three examples the Human Rights Act has been used as a scapegoat for unrelated, primarily ministers' failings within the Government?

  Lord Falconer of Thoroton: If and insofar as there are administrative failures that are to do with the Human Rights Act, as Bridges identified in his original report, we need to address them, but I completely agree with you that not one of them justifies an amendment or repeal of the Human Rights Act and that was the conclusion that the review that we published in July came to.

  Q11  Dr Harris: Would it not have been easier if some of your senior colleagues, instead of adding fuel to the misunderstood fire in the press about how the Human Rights Act was to blame for Afghani hijackers being here unreasonably and our failure to deport foreign prisoners, had said clearly that there was no evidence that in those two cases the Human Rights Act was anything to do with it, whereas instead their comments seemed to feed the attack on the Human Rights Act, creating a lot of work for you?

  Lord Falconer of Thoroton: I do not think you could possibly have ignored what Andrew Bridges, the Chief Inspector of Probation, said and, in the light of what Andrew Bridges, the Chief Inspector of Probation, had said in his report, in which he had specifically said that the decision-makers in MAPPA and the Parole Board had been "distracted by human rights arguments", not then to look at what was going on in relation to it would have been completely wrong. I think we did the right thing by setting up a review. I think we did the right thing in coming back two months after we had set up the review with the conclusions of the review saying broadly what I have just said to Mr Dismore in answer to his questions.

  Q12  Dr Harris: That is a very good answer to a question I did not ask. I did not ask about the Bridges case.

  Lord Falconer of Thoroton: No, you did ask about the Bridges case, Dr Harris. You asked about the three particular things and that was one of them.

  Q13  Dr Harris: No, I did not, actually. I said that in respect of the Afghani hijackers and the deportation of foreign prisoners—

  Lord Falconer of Thoroton: I apologise; I did not realise you had excluded that.

  Q14  Dr Harris: —would it have been helpful if your senior colleagues, instead of adding fuel to the fire about blaming the Human Rights Act for these alleged failures of policy in respect of the hijackers and the deportation of foreign prisoners, had pointed out that neither of those cases had anything to do with the Human Rights Act and therefore you would not have had to do all the work you had to do in respect of reclaiming, as it were, the justification for having human rights legislation in this country? Do you not regret that the comments were made by your senior colleagues that seemed to fuel the fire in that way on those two cases?

  Lord Falconer of Thoroton: I think there was legitimate concern because I think, exactly as Mr Dismore put it to me, that it was those three issues together that led to there being legitimate concern. There were problems that arose from the third one, the one you did not ask me about. The right thing to do was to properly look at them all and review them.

  Q15  Dr Harris: The Prime Minister did not say, "Right: these three, it is an abuse of commonsense". He said specifically, "It is an abuse of commonsense to be in a position where we cannot deport people back who hijack a plane", but that is because there had been no legislation in his Government over the preceding seven years to do it.

  Lord Falconer of Thoroton: To do what?

  Q16  Dr Harris: He was saying it was an abuse of commonsense, frankly, to be in a position where we cannot do this, "this" being that people who hijack a plane we are not able to deport back to their country. That was nothing to do with the Bridges case. That was a discrete comment he made, the implication being that there was a human rights issue preventing that, when in fact it was a failure to legislate to do that or something that was inappropriate. I do not think you can cite in aid of your senior colleagues the Bridges case when they were making specific comments about two other different cases. It just makes life difficult for the Human Rights Act.

  Lord Falconer of Thoroton: From the point of view of the public and the debate at the time, there was a debate about what was the effect of the Human Rights Act. That debate covered all three issues. The right course for a responsible government, I think, was to ask how much are these problems to do with human rights, and people were saying in the press, and perfectly respectable people were saying, "Maybe this has got something to do with the Human Rights Act", so the review, which was conducted quickly, was the right response to it. You can put to me particular statements made by colleagues in the Government about it. They were reflecting at the time legitimate public concern. Six or eight weeks went by, and I cannot remember the precise date on which the review was started but by the 20-something of July a report was produced expressing the views of the Government which contained right across the Government an unequivocal commitment to the Human Rights Act. Maybe we were not quite quick enough to spot the absence of human rights issues in relation to all three of the issues but we came back pretty quickly in relation to it.

  Q17  Lord Lester of Herne Hill: Lord Chancellor, Lord Falconer, could I say first of all that I think that the DCA review was admirable. I think that your lecture at LSE explaining the situation was also admirable, and I think you are doing your very best to remove misunderstandings from the public about the Human Rights Act, but there is, is there not, a worrying political problem about the extent to which the Human Rights Act has been woven into the consciousness and values of our fellow citizens, caused by constant attacks upon it by some sections of the media, especially those that fear the right of privacy, and, if I may say so, by some in the official Opposition who would like to tear it up? My question therefore is, can you persuade other colleagues within the Government to engage in a major public education programme in order to remove misunderstandings in the way that the DCA review and your lecture did, because as far as I am concerned, unless the Prime Minister and the Home Secretary and other senior colleagues join you, we will not succeed in removing misunderstandings?

  Lord Falconer of Thoroton: The views expressed in the reviews are not the views of one department in the Government; they express the views of the Government. I think it is not something that can be achieved overnight because I think there are concerns among the public exemplified by the fact that the official Opposition contemplates, no matter how difficult it appears the moment you think about it, repealing the Human Rights Act. I think part of the difficulty in relation to this is not to do with day-to-day politics, though it is something to do with it. It is the fact that it appears to many people to be lawyerly and to be something to do with Europe and, for reasons I am quite unable to explain to you, neither lawyers nor Europe are that popular in this country. In fact, as you know and as everyone round this table knows, it comes from here. It does not come originally from Europe and it was never about some lawyers' charter. It was about everybody's basic freedoms in the wake of the Second World War and what happened to them. What we have to do, and we as a Government accept this, is persuade people that it is not about European lawyers' views about what an appropriate set of law is. It is about basic values in this country.

  Q18  Baroness Stern: Could I, if I may, come back to the sad case of the Anthony Rice matter and the Inspector's report to say first of all that I think it is very gratifying that you pay so much attention to the findings of Chief Inspectors' reports, and in this particular case I am sure you have read the report thoroughly.

  Lord Falconer of Thoroton: I have.

  Q19  Baroness Stern: As I understood it, and you may well wish to correct me, the Parole Board did not have information before it of previous convictions on which, if it had had that information, it might have made a different decision, and there was a misunderstanding amongst those handling the case on the nature of the hostel and the level of supervision provided. I think it is also the case, and I am sure you will also correct me if I am wrong, that the decision to give people legal representation before the Parole Board came in years before the Human Rights Act was passed. Have you any comments on any of those points which might slightly change the view you take about this case and the view you expressed on the BBC yesterday morning about it being a failure of the Human Rights Act?

  Lord Falconer of Thoroton: First of all, I did not say it was a failure of the Human Rights Act. I said it was in relation to implementation. In relation to each one of your three points, yes, they are factually accurate. Secondly, in the light of the debate that is going on I do not think it was possible for the Government to ignore somebody of the reputation and standing of the Chief Inspector of Probation who, despite the fact that, as he knew, the Parole Board had not been told of Rice's assaults on children before, despite the fact that Mr Bridges had been told about or knew that representation to the Parole Board had been something that existed for a very considerably long time and despite the fact that there were two or three other information failures that were all about administration and nothing to do with the Human Rights Act, specifically said in two or three places in his report that it was as a result of being distracted by human rights arguments that the result might have been reached. Mr Bridges is a man of great standing. It would be quite impossible and wrong for the Government to say, "We just ignore it". If what you are trying to suggest to me is that we should reject those bits of Mr Bridges' report that attack the Human Rights Act, I do not think we could because he knew all about the facts of the case, you have accurately identified the facts of the case, and even though he identified all those administrative failures he also made that point about human rights, so we felt we had to deal with it. He is no enemy of human rights. He said it as a result of having looked at the thing in detail, so we accept what he says.


1   Witness correction: The Court of Appeal in fact concluded that it was wrong to grant "temporary admission". Back

2   Witness correction: They would have another right of appeal to the Asylum & Immigration Tribunal. Back


 
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