Examination of Witnesses (Questions 40-59)|
QC AND RT
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
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
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
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
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 Actwell, ECHRis 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
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 causedfor example, the Belmarsh
casebut 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.