Joint Committee On Human Rights Minutes of Evidence


Examination of Witnesses (Questions 40-59)

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

30 OCTOBER 2006

  Q40  Lord Bowness: On the same issue, in your review concerns were expressed, and I think I am quoting you correctly, that a wider re-interpretation of "public authority" could "increase burdens on private landlords, divert resources from this sector and deter property owners from entering the market to provide temporary and longer term accommodation to those owed a duty by the local authority under housing legislation". I do not think those concerns have been expressed before by the Government in relation to this question and it does begin to widen the scope by you not defining "public authority" or leaving organisations and individuals outside the definition. It widens it very considerably.

  Lord Falconer of Thoroton: The points that you have referred to indicate that you may have some perverse results about extending the effect of the meaning of "public authority". If, for example, it means you dramatically reduce the private providers of residential care, that may well make it much harder to provide proper residential care for people. That is all that that point is saying. It does not in law affect what the definition of "public authority" is but if we widen the definition of "public authority" and then drive a whole range of providers out of the particular market I am not quite sure what effect that would have on residential care issues.

  Q41  Chairman: But surely the real problem here is that we are increasingly having outsourced the provision of public services. In my area, for example, the local authority housing has now been passed over to an ALMO. Is an ALMO a public authority for the purposes of the Act or not? The old people's homes are being privatised to private companies. They are pretty clearly not going to be covered by the primary legislation because of the Leonard Cheshire case. The fact is that those people who are recipients of those services one day are under a public authority and therefore protected by the Act; the next day they are not.

  Lord Falconer of Thoroton: That is not quite right. If they are in Leonard Cheshire they have never been protected by the Act. That is the position. In relation to the ALMO, it depends if the ALMO, as I suspect, is a Freshwaters or a housing association that has set itself up as an ALMO. All I am saying is that to extend the definition of "public authority" will have an effect on a whole range of markets as to who comes into that market and who does not. Before we extend the definition of "public authority" we should look at that. Prisons are the best example. Prisons are a public authority if they are state prisons. Obviously, they should be public authorities as well if they are private prisons, but in these other areas, like housing, like residential care, it is more difficult, I think. I have set off a riot; I am sorry.

  Q42  Chairman: We can have this debate later anyway. It is a good job you took your jacket off. Is not the key point this though, that if we are trying to make a positive case for the Human Rights Act the positive case comes out of helping people get their rights to the services to which they are entitled in large part from the public bodies we are concerned about, and if increasingly, because of privatisation, outsourcing, whatever, people start to lose those rights, so the case for the Human Rights Act becomes less strong as the sorts of things that you mentioned in your three examples become less likely because those bodies are no longer public bodies?

  Lord Falconer of Thoroton: Yes, I see force in that but you can see the other side of the coin: if, as a result of the Human Rights Act being extended we drove this lot out of that particular market and it would be impossible to find a residential care place for your grandmother.

  Baroness Scotland of Asthal: Also, if I may add, if we are talking about outsourcing it is now going to be incumbent on the local authority in their contracting to contract with the supplier the terms and conditions under which that supplier will have to operate. We would expect anyone so contracting out would build into their terms and conditions the protection that we would wish to see any agency who purports to perform a public duty undertaking, so I think there are many ways of guaranteeing that those who wish to encompass and undertake this work do so within a format which will now allow us to take advantage of the protections that we believe are fundamental for those people who are going to be introduced to those services.

  Q43  Lord Bowness: Lord Chancellor, I do not mean this to be a debating point but perhaps you can help me. When you say that a private prison is obviously a public authority, why is not the landlord who takes over local authority housing obviously a public authority? As I say, I do not mean this as a debating point, but what makes one obvious and the other not?

  Lord Falconer of Thoroton: Because I think in relation to a prison that the only people ultimately who can send people to prison and the people who are responsible for people in prison are the state That is not the position in relation to the provision of housing where it can be provided either by a private landlord or by a public landlord, and I think people would recognise the difference between the responsibility of the state in relation to prisons on the one hand and housing on the other.

  Q44  Lord Lester of Herne Hill: When we were debating the Equality Bill in the House of Lords Baroness Ashton explained, when some of us were arguing about this, that the Government would intervene because the Leonard Cheshire case was a very narrow view taken of the Court of Appeal and on that basis we did not press for amendments. I agree with you that it is much better to do it on the basis of case law than further statutory lists or something of that kind, but it is very important, is it not, for the Government to look for another suitable case and take it to the House of Lords because I think the Leonard Cheshire case is widely regarded as too narrow in its approach to "public authority"? This Committee published a rather learned paper explaining why that is so. Will the Government therefore be looking in the future for a suitable case to reach the House of Lords?

  Lord Falconer of Thoroton: We will. You know what happened in the Havering case, which was that we were refused leapfrog, so they did not seem to think it was appropriate to go to the House of Lords, and we were refused permission to go to the Court of Appeal because they said the matter was concluded as far as the Court of Appeal was concerned by Leonard Cheshire, so we got a bit stuck there but we will certainly, as Baroness Ashton promised, look for an opportunity, and indeed the Havering case was in part seeking to discharge the promise that she had made in the House of Lords, but I make it clear that we will seek to find another opportunity. That is why I was not biting on the suggestion of legislation at this point.

  Q45  Baroness Stern: I just wonder, Lord Chancellor, whether either you or Baroness Scotland would like an aged or loved relative of yours to be in an old people's home which said, "If the Human Rights Act is going to apply to us we are going to get out of this business".

  Lord Falconer of Thoroton: I would not like myself or any of my aged relatives to be in such a home.

  Q46  Baroness Stern: Would anyone?

  Lord Falconer of Thoroton: No, I do not think they would.

  Q47  Baroness Stern: So why have you suggested to us that you have to think about whether people would leave the market rather than complying with the Human Rights Act?

  Lord Falconer of Thoroton: Because you have seen it in relation to, for example, private rental, where historically, for example, making homes fit for human habitation had the effect of reducing the number of people in the market and pushed the private rental market up to a point where homes just became much worse. That is what happened in relation to a whole range of Acts that were introduced there. We need to see what the consequences are.

  Baroness Scotland of Asthal: We also need to be very clear, and the Government was very clear, about how we expect that term to be interpreted. It has been a matter of concern to us that it was not interpreted in the way that we intended. If you look at the debates that we had in Hansard, the Government was very clear, we thought, as to how we expected it to be interpreted by the courts. We are on a number of occasions surprised that our intent is not always interpreted in a way that we thought would flow from the debates that we have had, but that is a realistic position of where we are so there is no dispute, I think, about where the Government is in terms of our aspiration and what we hope to accomplish.

  Q48  Dr Harris: Lord Falconer, this review is an excellent document, I think, and I like the myths and misperceptions section, and we got into that earlier. How is this myth-busting going to work? If someone writes to the paper or says in the paper that the courts can strike down primary legislation will there be a rebuttal?

  Lord Falconer of Thoroton: Is that a trick question?

  Q49  Dr Harris: I do not mean it to be a trick question. You tell me if it is a trick question.

  Lord Falconer of Thoroton: The myths are not remotely to do with what you have said. There was one yesterday or the day before: the jewellery shop that had a CCTV picture of somebody stealing from the jewellery shop who was not apprehended by the police and the jewellery shop owner, quite legitimately, wanted to publish the picture of the thief stealing from his shop, for obvious reasons.

  Q50  Dr Harris: Alleged.

  Lord Falconer of Thoroton: You say "alleged". There was absolutely no doubt that a theft was going on. There was not even a question of who had done it. The question was, how do we help catch this person, and they wanted to publish the photograph and the local police, it is alleged, said, "You cannot publish that picture because it might infringe the person's human rights". That is nonsense.

  Q51  Chairman: I think it was the local PC actually rather than the jeweller.

  Lord Falconer of Thoroton: All right, sorry: I apologise to the local PC. It is nonsense. The other one is the Kentucky fried chicken for the man on the roof. There was a man on the roof who had either refused to come down or was holding somebody hostage and the paper said, "His human rights require that he be given Kentucky fried chicken", or cigarettes. No, that was not true. The police made a perfectly sensible operational decision that in order to try to get him down they would give him some Kentucky fried chicken.

  Dr Harris: That is not a criticism of Kentucky fried chicken.

  Q52  Chairman: He might have stayed up if it had been.

  Lord Falconer of Thoroton: The third great myth is Nilsen and hardcore porn in prison. It was alleged that the Human Rights Act required that he be given that and everybody knows that is not true, but he made an application which was dismissed even at the leave stage. The myths that damage the Human Rights Act are nothing to do with somebody saying, "Oh, you can strike down primary legislation", as opposed to saying, "You can make a declaration that it is incompatible". It is about people believing that sort of story.

  Q53  Dr Harris: There are a number of people, and one not too far from me here, who believe that that would be a terrible thing if it were felt that the Human Rights Act could trump our democratically elected Parliament's decision in primary legislation. I think it is a serious myth to be promulgated, but my question was, how do you see this myth-busting being done? Is it just you or can we look forward to seeing the Home Secretary charging in ahead of you to bust myths around this issue since it is government policy, I now know, to do this myth-busting? Do you expect to see him? We can answer but I would like the Lord Chancellor to let me know if he expects to see that happen.

  Lord Falconer of Thoroton: Can I read the conclusion of the review, Dr Harris, which says, "The Government remains fully committed to the European Convention on Human Rights and to the way in which it is given effect in UK law by the Human Rights Act". We all as a Government are committed to it and we are all committed to it. In government you will find that the people who talk on particular subjects tend to be the people who are associated with them, so I have, not deliberately but generally, avoided talking about the economy that much because I am not the Chancellor of the Exchequer. The people who talk about particular topics are those who are involved in them, but we are all committed to it and you are wrong, Dr Harris, to try to draw distinctions between us.

  Dr Harris: I am keen not to. I am keen for you to say, you and the Home Secretary jointly, that—

  Q54  Chairman: Let us ask Baroness Scotland, the Home Office Minister, to explain why catching jewellery thieves is not anything to do with the Home Secretary.

  Baroness Scotland of Asthal: Can I just say first of all that the Home Secretary is very interested in myth-busting. That is why we have set up the Scrutiny Panel, that is why we have got the website, that is why we are trying to help promote guidance in a way that practitioners really understand. This whole issue about police officers being worried that they cannot issue photographs of people is just wrong. That is part of the myths that we are starting to bust. Recently frequently asked questions are going to be there. We are going to have on-line help so that if people do have these concerns they will be able to raise them and we will be able to dispel them. None of us has a magic wand to stop the press writing things which are wonderful for headlines but do not actually have much substance for very long or in fact, and you get them writing about the claim but they do not write anything about the fact that it was quashed immediately. That is a perennial problem. What we want to make sure is that practitioners, who are actually responsible for making these judgments, are not misled by some of the nonsense that is spoken about and that we get it right.

  Q55  Dr Harris: My final point is that, in line with the recommendation in the document you sent us, it says, and I agree with this, "Working with the Department for Constitutional Affairs, the Home Office should develop a proactive and reactive approach to myth-busting around the Human Rights Act", so should we be entitled to measure that by the number of interventions of Home Office personnel, including ministers, who are engaged in the myth-busting and hope that the ratio of myth-busting to myth-creating, which we are all possibly capable of; I am not trying to make a point here, is a high one rather than a low one?

  Baroness Scotland of Asthal: I think you could certainly look at the work that we are doing because I have to be clear: it is the Home Office that is going to have the website, the Home Office is doing the outline, the Home Office has set up this Scrutiny Panel. This is core work for us for the whole of the criminal justice practitioners group. That is work which we think is important and it is work that the lawyers' part of the Department started more than a year ago. This is work we are speeding up and intensifying, so you can certainly ask to see the consequences of the website, of the advice line, how much it is being used, and indeed the work of the Scrutiny Panel. The first Scrutiny Panel meeting will be on 3 November, so it is very soon and it is a broad-based group of practitioners together with lawyers and others who are responsible for operational matters on the ground which we hope will make a difference in busting some of these myths.

  Q56  Chairman: Will we see some of the myth-busting in other departments through their websites?

  Baroness Scotland of Asthal: One of the things that the Lord Chancellor has made clear and we certainly agree with is that there has to be a general better understanding of what the Human Rights Act demands. Some of us believe that the Human Rights Act—well, ECHR—is merely a distillation of what is our common law and it could have been written down by a common lawyer in very clear terms.

  Q57  Lord Plant of Highfield: I would like to echo the positive things that have been said about the review, but one thing that the review does not rule out is the possibility of amending the Human Rights Act, for example, by requiring particular regard to be paid to the right to life in Article 2 in the same way as sections 12 and 13 of the Act require special regard to be paid to freedom of expression and freedom of religion. I think it would be agreed that in practice the special privileges, as it were, freedom of expression, freedom of religion, have made really very little difference, if any at all, to the way the courts have interpreted those rights, so if an amendment were to be made to establish duties to ensure agencies give priority to public protection, given the experience of the special consideration for religion and freedom of expression, do you think it would actually make any difference, because the courts have to interpret what they interpret in a way that is compatible with the Act, so why would it make any difference to have as a duty having special regard to the protection of the public?

  Lord Falconer of Thoroton: I agree with your analysis about sections 12 and 13. There is no evidence I have that they have in any way affected the construction given by the courts on any part of the Convention. The value of such a provision would only be to send a message to officials or people working for public authorities dealing in a particular area. It would not be to change the effect of the Convention and a judgment would have to be made as to whether or not that would have an effect. It comes back to the estimable Mr Andrew Bridges. If Mr Bridges believes that officials are being "distracted" by human rights arguments, and explicitly he was saying they got the balance wrong, and if it would help in relation to them getting the balance right because the legislature was in effect underlining the importance of public protection in those sorts of cases, then it might be worth doing but we would need some evidence that it was worth doing on that basis. It would not be, as Lord Plant's question implies, in order to change the meaning of the Convention.

  Q58  Lord Plant of Highfield: This is a general philosophical point, I suppose. Do you think legislation should be used to send messages as opposed to telling you what the law is?

  Lord Falconer of Thoroton: I think it quite often is used to do that and I think it is quite often beneficial for the legislature to say, "We put a high priority on getting this particular balance right", and if the concern, which is the concern that Mr Bridges expressed, was that people were getting distracted, then if it helped to throw a light on where the problem was it might be worth doing.

  Q59  Mr Carswell: There has been a lot of attention focused on the Human Rights Act when often, in fact, it is the ECHR that has been responsible for a lot of what the Human Rights Act has been blamed for. For example, the decision that the Afghani nationals should not be returned to Afghanistan was taken by a panel of immigration adjudicators who ruled that the Afghanis be allowed to remain in UK under Article 3 of the ECHR. In as far as it is the fault of all those ghastly journalists and the media creating these myths, is not the failure really that they made a mistake by citing the Human Rights Act as the problem whereas in fact they should be blaming the European Convention on Human Rights? My question is, to what extent do you think the European Convention on Human Rights is curtailing the ability of a democratically elected government to govern and frustrating the ability of a democratically elected government to develop a public policy response to the problems of terrorism, mass immigration and crime?

  Lord Falconer of Thoroton: I do not think it is. In the review that we published, we specifically came to two conclusions. One, that in relation to criminal law the Human Rights Act has had no real effect at all and, in relation to counter-terrorism, we said yes, there have been some changes that the Human Rights Act has caused—for example, the Belmarsh case—but it has not significantly inhibited the state's ability to fight terrorism because the Human Rights Act has allowed proportionate measures to be taken to fight terrorism. Kofi Annan said not so long ago, "Human rights law allows a pretty robust response to terrorism even in the most exceptional circumstances." Human rights law is not some rigid doctrine that can never be broken; it is something where a balance needs to be struck. If the state is threatened, it will allow the necessary steps to be taken to protect the democratic society which those values serve. I do not accept it has had a significant effect on inhibiting the fight against terrorism.


 
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