Joint Committee On Human Rights Minutes of Evidence


Examination of Witnesses (Questions 20-39)

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

30 OCTOBER 2006

  Q20  Baroness Stern: We are going to consider the DCA review of the implementation of the Human Rights Act in more detail later, but before we do that could you tell us what became of the strategic review that the DCA undertook which was initiated by the DCA's then Permanent Secretary in May 2004? Could I ask you what were the main conclusions of that review, whether it will be published and how that review informed the review of the implementation of the Act that you published in July in response to the Prime Minister?

  Lord Falconer of Thoroton: The 2004 review was not one intended to be published. It was one intended to work out how human rights has been given effect to across central government departments, for example, how were they dealing with the analysis of legislation, what were they doing in relation to non-legislative alternatives when they were thinking about whether or not what the particular department did complied with human rights, and we got a response in 2004 which indicated that some departments were right on top of implementation of the Act and others were not really focused upon it at all. The 2006 review, which was intended to be published, drew to some extent on the 2004 review because if you look at the review we published in 2006 it, for example, indicated how it affected policy implementation, and much that we had learned from 2004 we put into the 2006 review, but they were doing very different things. We will not publish the 2004 review.

  Q21  Baroness Stern: To what extent did your latest review take into account the views of other government departments and the Government's law officers?

  Lord Falconer of Thoroton: Extensively. We consulted certain government departments widely. If you look at the review that we have published it goes through in some detail how the law has been affected by human rights since 1999[3] and how various departments have affected it. It is not just criminal justice departments; it is also, for example, the Department for Communities and Local Government in relation to planning, it is Health in relation to how you treat people in care, et cetera. So extensively is the answer.


  Q22 Chairman: Can you tell us why you will not publish the 2004 review if it was partly as a result of recommendations of the previous Committee's Sixth Report of 2002-03 that the review was undertaken?

  Lord Falconer of Thoroton: Because what we were doing in the 2004 review was saying, "What are you doing about implementation of the Human Rights Act? Can we have a discussion about how you might either tell us that you are doing it absolutely impeccably or how we might improve it?". For there to be a dialogue between us and these other departments it is far better I think that it be done on a confidential basis than on the basis that it be published.

  Q23  Chairman: So we lack that?

  Lord Falconer of Thoroton: You would be more frank, Mr Dismore, about how you would do it as a department if you thought it was a review in which we were trying to help improve implementation rather than that it was one that was getting published.

  Q24  Chairman: Bearing in mind it was as a result of our predecessor Committee's report would you make a copy confidentially available to the Committee?

  Lord Falconer of Thoroton: Can I think about that?

  Q25  Lord Lester of Herne Hill: I would like to ask Baroness Scotland about the Home Office. You provided us with a summary of the findings of the Home Office review on decision-making in the criminal justice, immigration and asylum systems which concluded that in general human rights legislation as perceived by the majority of agencies has provided a useful framework. Will the Home Office, like the DCA, be publishing that review?

  Baroness Scotland of Asthal: The review is an internal review. We have already seen the consequences of the review that we published in the summer, which were the results of all the work that we had undertaken. The way in which we intend to implement the consequences of that review is to look at the practical things that we can do to help practitioners better understand how they should implement the Act, so, to take up the question you asked the Lord Chancellor earlier about how we are going to make this work better, one of the things that the LAB, the Legal Advisory Branch of the Home Office, have done is set up some guidelines and an opportunity for people to better understand how in practical terms they can apply the Act to often-asked questions. We have set up a Scrutiny Panel to which all practitioners will be able to bring their problems. The Scrutiny Panel is going to have lawyers and practitioners working together to review this. There is also going to be a website where practitioners can ask these questions together with a helpline. The website should be completed by the end of December and the helpline we hope by the spring of next year. What we have tried to do is not just publish the consequences of the review, which you hopefully have seen and the documents we have published, but take it a bit further and understand what the practical problems are that practitioners are having on the ground and try and do some myth-busting. One of the problems we have had is that there have been a lot of myths which have been absorbed by practitioners improperly and we want to try and get rid of them.

  Q26  Lord Lester of Herne Hill: My question was whether you would publish the review and I think your answer was no, you will not publish the review. Is that right?

  Baroness Scotland of Asthal: We have published the consequences of the review and I think you have had the documents which were produced in the summer as a result of our review. We do not propose to publish anything more about the review. We are going to get on and do something with the implementation.

  Q27  Lord Lester of Herne Hill: Can I suggest to you why it would be a very good idea to publish the review? As you know, the BBC reported in July that the Home Office internal review of decision-taking had identified 25 examples of the Human Rights Act impeding decision-making and I think that you agree that that was misreporting about the true position.

  Baroness Scotland of Asthal: Yes, it was.

  Q28  Lord Lester of Herne Hill: Would it therefore not be a very good idea, in order to rebut that kind of misreporting, if the Home Office published a review finding that the system is working well and not impeding agencies in performing their vital task, and if the answer to that is no, you will not publish, then what else will you do to rebut that kind of misreporting?

  Baroness Scotland of Asthal: What we can do is what we have done already. The Lord Chancellor is right: the document produced in relation to the Human Rights Act is a joint document. It was our joint conclusions as to how it should go forward. We published the rebalancing exercise and what we are doing now to further do the myth-busting is working with the Scrutiny Panel and the website and helping practitioners. All of that goes to rebut what was said and I think I should clarify for those who may not have read all our evidence that the 25 identified areas were not in fact 25 areas. This was part of a leaked document and all it encompassed was areas we had to look at. It did not identify that there were 25 areas which were so affected and I think it is very unfortunate when things are misreported. The documents that we have produced we think are very helpful documents. They emphasise that we are totally committed to the Human Rights Act, how it operates and that we think it will not inure people to the disadvantage of a proper rights culture and understanding in this country if they understand the proportionate nature of it and the way in which they need to balance individual rights and public security in an appropriate way.

  Lord Lester of Herne Hill: I am sorry to press you but I think the Committee will still not understand what is the good reason for not publishing the review or a summary of the review so that the public can know what it contains.

  Q29  Chairman: Bearing in mind that you have already given us the summary, why could the summary not be published more widely?

  Baroness Scotland of Asthal: I am certainly happy to say that we will think about it again but we do think that the Lord Chancellor's review, which is the Government's review of the Human Rights Act, and the rebalancing documents that the Home Office have produced encapsulate the findings we have made and represent properly the Government's position. I will certainly look at it but we do not think there is anything further to add. There is no significant difference between our findings and those published by the Department for Constitutional Affairs on behalf of the Government. We are ad idem.

  Lord Lester of Herne Hill: I think we would be grateful for any further thoughts.

  Q30  Chairman: On the record, 25 examples is wrong?

  Baroness Scotland of Asthal: There were not 25 examples. That was wrong.

  Q31  Lord Lester of Herne Hill: Does the Home Office accept the conclusion of the DCA review that "decisions of the UK courts under the Human Rights Act have had no significant impact on criminal law or on the Government's ability to fight crime"?

  Baroness Scotland of Asthal: We do accept that. There are issues that I know will come along later which will cause difficulties and those issues are being addressed.

  Q32  Baroness Stern: To continue discussing the DCA review if I may, it does not provide many examples of the beneficial impact you say the Human Rights Act is having on policy formulation and decision-making in delivery of public services. A number of the examples in it point to uncertainties in the law or to negative effects arising from the Act and the way it is interpreted. Have you got or are you able to provide some better substantiation of the claims you make for the Act's beneficial effects?

  Lord Falconer of Thoroton: Three examples. A couple who have been married for 50 or 60 years: the local authority seeks to separate them into two care homes when they cannot look after themselves. The Human Rights Act says they cannot be separated. Secondly, the adult children of the woman who is fed her breakfast while sitting on a commode say that is contrary to her human rights and that mistreatment stops. Thirdly, the practice of the state in making anybody who wished to apply to be released from compulsory detention in a mental hospital wait eight weeks, not before the application could be heard, not because there was any reason for the eight-week delay but simply because it was convenient administratively for there being an eight-week delay. Those are three specific examples of the hugely beneficial effects of the Human Rights Act. Very many of the beneficial effects come from the fact that the state, whether it be central government departments or local authorities, now have to consider things in the context of, "Does what I do affect people to the minimum in terms of infringing their human rights?", and human rights in the examples that I have given means people's basic entitlement to dignity.

  Q33  Baroness Stern: If I were to ask you for another three would you be in a position to give us them or would you like notice of that question?

  Lord Falconer of Thoroton: Could I give you another three? Yes, I probably could but do not press me too much on the detail of most of them. I can give you lots and lots of examples, and I would be more than happy to do that. I spend, as you know, quite a lot of time giving examples publicly in relation to it.

  Q34  Lord Lester of Herne Hill: Could I just give one example, the freedom pass? I do not know whether you are yet 60, Lord Falconer, but when you reach 60—

  Lord Falconer of Thoroton: What a very insulting question. I am 43.

  Lord Lester of Herne Hill: —at the same time as a woman of 60, as a result of the European Human Rights Convention, all men in this country in areas where there are freedom passes have the practical benefit of not being discriminated against in this vital help for elderly people like myself.

  Chairman: The same goes for the winter fuel money as well.

  Q35  Baroness Stern: The point I was making was, would you not agree that the more examples that could be provided that are as compelling as the ones you have just given the easier it is to help people to understand what this Act is and what it is not?

  Lord Falconer of Thoroton: Yes, I quite agree with that.

  Q36  Baroness Stern: Could I ask another question on this same point? Do you in the DCA see yourselves as actively working with other departments to help them to put policies they are developing within a human rights framework?

  Lord Falconer of Thoroton: We do see our role as helping other departments and, if asked, local authorities and other public authorities how to give effect to the Human Rights Act. It is not our job in the Department for Constitutional Affairs to formulate health policy, education policy or otherwise, but we see ourselves as having an advisory and a championing role in relation to human rights, particularly in central government.

  Q37  Baroness Stern: How do you do that?

  Lord Falconer of Thoroton: We talk to other departments; we provide guidance. For example, today and last week we produced the third edition of a guide to the Human Rights Act 1998, another document, Human Rights, Human Lives, all in the wake of the review; another one, Making Sense of Human Rights, and we campaign actively now for human rights which we did not do before and we did not do before because perhaps we had not realised the extent to which human rights and human rights values had not been as embedded in the national and governmental consciousness as they perhaps needed to be.

  Baroness Stern: That was very helpful. Thank you.

  Q38  Lord Bowness: Lord Chancellor, you have just been referring to local authorities and public authorities in your answer to the last question. Following the Leonard Cheshire case the department has intervened in the London Borough of Havering case in an attempt to clarify the law on the meaning "public authority". I think I am right in saying that so far that intervention has not proved successful?

  Lord Falconer of Thoroton: You imply that at some later stage it might. The application for permission to leapfrog to the House of Lords was refused and permission to appeal was refused, so I am afraid the case is now a finished case.

  Q39  Lord Bowness: That in a sense brings me to the second part of my question rather more quickly than it might have done. In view of the total failure of your intervention so far will you or the Government now consider primary legislation to clarify the interpretation of "public authority" under the Human Rights Act?

  Lord Falconer of Thoroton: Possibly. My own inclination is that this is the sort of thing that could be dealt with on a case-by-case basis. Every time you try and define what is meant by "public authority" you simply, as it were, spawn more litigation. The fact that we did not get into the London Borough of Havering case does not necessarily mean that there will not be another case in which the thing is looked at. I just feel that legislating to try and solve the problem may not work at the end of the day. I think the right thing to do is to try and get the courts to come to a decision. It is the sort of thing, frustrating as it is, where dealing with it on a case-by-case basis might be the right way to deal with it.


3   Witness correction: 2000. Back


 
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