Joint Committee On Human Rights Minutes of Evidence


Examination of Witnesses (Questions 60-79)

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

30 OCTOBER 2006

  Q60  Mr Carswell: Do you think Article 3 of the ECHR as it has been interpreted by the judges is frustrating the ability for us to deal with mass immigration?

  Lord Falconer of Thoroton: No. Article 3 affects an extremely small number of people. The issue in relation to Article 3 is the number of deportations the state is seeking to make which the Special Immigration Appeal Commission is currently hearing. As it happened, they had one from Algeria quite recently and they allowed the deportation to take place.[4]


  Q61 Mr Carswell: In your report you said that nothing in the European treaties expressly obliges Member States to be party to the European Convention on Human Rights but the European Convention on Human Rights is in practice fundamental. Are you of the view that without the ECHR our government could not be trusted on human rights?

  Lord Falconer of Thoroton: I take the view that without adhering to the European Convention on Human Rights we could not stay for very long in the European Union because I think it is broadly accepted that adherence to the specific commitments of the European Convention on Human Rights would now be regarded as in practice a condition of membership of the European Union. I do not think we would not be trusted. In practice, it is just a condition for membership and indeed adherence to the principles of the Convention has rightly been regarded as a necessary condition before eastern European states can join the European Union.

  Q62  Mr Carswell: If we could only quit the ECHR by coming out of the EU, are you not strengthening the case for people like myself who campaign for us to quit the EU completely? If we can only reform the ECHR by coming out of the EU, does that not strengthen the case for coming out of the EU entirely?

  Lord Falconer of Thoroton: That is a bewildering question.

  Q63  Mr Carswell: You are saying we can only quit the ECHR if we are outside the EU.

  Lord Falconer of Thoroton: No. If we leave the European Convention on Human Rights in practice we could not stay very long in the European Union. We could leave the European Union and stay in the European Convention on Human Rights if that is what was wanted but I do not want to leave either and neither does the government. I think they are good things to be members of. There may be a bit of underlying disagreement between us on those two points.

  Lord Judd: An awful lot of the exchanges so far seem to me to have underlined the need for a culture which understands and is positively for the implementation of the Human Rights Act. You have drawn our attention to the booklets that you have issued as guidance for local authorities as well as government departments.

The Committee suspended from 5.27 pm to 5.35 pm for a division in the House of Lords

  Q64 Lord Judd: It seems that we are talking a lot about the need for a positive culture about the Human Rights Act, a context of which we are all aware. You have told us about the guidance you recently published and I think I can say for all my colleagues that we greatly welcome that. However, we do just wonder whether, as the sort of Committee we are, doing the work that we are doing, it would not make sense to let us see such a booklet and some of that information in draft form so that we can comment before it is published.

  Lord Falconer of Thoroton: I agree. In a sense, we should have done that and we will do it in future. We were keen to get on with taking physical, positive steps to do it. This is my responsibility and nobody else's. I was extremely keen that when we came back in September from doing a review in July there would be tangible things happening to indicate that the review was not just simply a government announcement and there is then a long series of events that goes on. These booklets are not the beginning or the end of the story; they are but one stage on what is quite a long journey.

  Q65  Lord Judd: As part of that, as I understand it, you have a ministerial group monitoring the guidance and training being provided by individual departments.

  Lord Falconer of Thoroton: Correct.

  Q66  Lord Judd: Can you tell us a bit more about how that is going?

  Lord Falconer of Thoroton: Yes. It has not yet met. It is chaired by me. It will have representatives of each central government department upon it. There is considerable enthusiasm for people to be on it and it is about taking a cross government look at how you make sure that human rights is inculcated into all government does and also how you defend human rights and establish exactly what you said. This is a human rights culture.

  Q67  Lord Judd: You would agree that we will be on the way to having that culture when every department of government sees its commitment to human rights as an integral, central part of all that it is about. We must not be in the situation in which government departments see you and your lot as a sort of human rights police: "Oh my God, they are coming. How are we going to square our policy with them?" You should not have to do that.

  Lord Falconer of Thoroton: Absolutely. I completely agree with you in relation to that. The world is very fractionally imperfect at the moment. Therefore, I am absolutely sure that efforts should be taken, not because my colleagues are remotely hostile or critical but because talking about it in a way that establishes it is an absolutely normal and given part of the way that we operate.

  Q68  Lord Judd: Would you not agree that all the training and the rest, seminars and so on, make it all the more necessary that there is consistent and positive leadership from all the ministers who you say are on board? You say all the ministers are on board. Should they not therefore all be singing enthusiastically from the same hymn sheet and not from time to time feel tempted to keep The Daily Mail at bay?

  Lord Falconer of Thoroton: Yes. We should all be singing from the same hymn sheet. Yes, inevitably it matters more to the particular department than to the other departments because they have focused, quite legitimately, on the particular, main policy areas that they are in. Yes, I agree with what you are saying.

  Baroness Scotland of Asthal: What we are trying to do is to make sure we do not reinvent the wheel. For instance, there may be one department that has created a very good tool kit. Instead of each department creating a new tool kit, we are looking at how we can share intelligence and make sure that there is consistency. What one department is saying may be nuanced in a way which is perfectly sensible from their point of view but may seem to bring inconsistencies. We are trying really hard.

  Q69  Lord Judd: Would you not agree it is not either/or? You need good management and that is good management. You also need to capture the public imagination and that calls for leadership.

  Baroness Scotland of Asthal: I think it is. You will see that leadership right throughout. That is why every Bill, no matter which department brings it forward, still has to be compliant.

  Q70  Lord Lester of Herne Hill: The question I am going to ask you now is of great practical importance to the working of this Committee and it is about information the government can give us about Bills that they introduce and their compatibility with the Human Rights Act. In your admirable review of the implementation of the Human Rights Act, you tell us about LP memoranda and you explain that as part of the process leading to Cabinet Committee approval of a Bill the relevant department compiles a memorandum for the Cabinet Committee setting out Convention rights likely to be engaged, explaining how the proposed legislative scheme ensures that any experience does not result in a breach and so on. As you know, the Committee have been pressing for some time to be given this kind of information in order to make our scrutiny work, not extracting teeth from ministers but doing it in a much more efficient way. You told us in a letter of 2 June that you would consult your colleagues about this and what we are hoping is that, having consulted, you will be able to provide us with more information, making it less necessary for us to be involved in interrogating ministers and their departments. Can you give us an update?

  Lord Falconer of Thoroton: I cannot give you the commitment that you are after today. It is a matter of consultation across government. I am sympathetic to the proposition which says it must be more helpful than simply making a section 19 statement to say, "Here is where there was an issue on this Bill. This is the conclusion we came to. That is why we think it is compliant." It means, if there is a Bill with no human rights considerations of any reality at all, we simply send this Committee a note that says, "No human rights considerations arose." Assuming the situation worked well, I think that would ease both our position in government as a whole and yours. Assuming that a trusting relationship grew up, you would just cast to one side those Bills where you were told there were no human rights considerations.

  Q71  Lord Lester of Herne Hill: It would be common ground, would it not, that you could exclude matters of legal, professional privilege? We are not asking for matters of legal advice and that kind of thing but it should be possible, should it not, to provide that information without going beyond what is proper?

  Lord Falconer of Thoroton: Yes. I envisage it would be possible to say, "Clause 16 of this Bill raises this particular issue. We take the view it is human rights compliant because A, B and C." That would not require us to disclose to you that advice from one lawyer said this; it was not. A lawyer said that; it was not. We then took either advice from the law officers or advice from outside counsel and as a result of the advice we got we took the view it was compliant. Assuming that was taken as a bona fide view, which it would be, we could then tell you why we took the view that it was without going through the ins and outs.

  Lord Lester of Herne Hill: We would like you to give us a Christmas present of good news before we break up for Christmas. Is that possible?

  Q72  Chairman: I would prefer it before the Bill is published in the Queen's Speech. Bearing in mind we have been talking about this for over a year now, it would be nice to try and get some conclusions. It would mean we would have to do less work and you would have to do less work.

  Lord Falconer of Thoroton: Exactly.

  Q73  Chairman: Perhaps we could turn to the Home Office Policy Review, reforming the IND, rebalancing the criminal justice system in favour of the law abiding majority. Do you think criminal justice system is currently biased against the law abiding, bearing in mind that the prisons are full to bursting?

  Baroness Scotland of Asthal: The perception is that it is. If you look at the policies that we have put out, it is quite clear that the public believe that we are definitely on the side of the offender, that their rights are properly looked after in a way that is robust and correct and that the system looks after them well. That is what all the surveys that we have had demonstrate to us. What is quite worrying is that is not how people feel about victims, witnesses and those who come to the court seeking redress. Therefore, rebalancing that is really important, not rebalancing it in a way that is unfair or unjust to the offender but better represents and supports victims. If you look at the things we have been able to do to give voice to that, the witness care units, the ability to make victim statements and those issues have better supported victims and those who wish to come to court than before. Those issues are very important. When we are talking about rebalancing, it is very important to remember that and to remember too that many of those who become engaged in the criminal justice system as offenders were at one stage victims. For example, if you look at the women who are currently in our prison estate, I went to visit Holloway and I was told by the governor there that 83% of the women in Holloway were at one stage victims of sexual assault or domestic violence. If we better care for victims, we genuinely believe that we will help to rebalance and reduce the amount of crime which is committed. That is something which the research bears out. This rebalancing is very important.

  Q74  Chairman: The problem as you see it is a perception rather than actual imbalance of the system?

  Baroness Scotland of Asthal: It is both because the perception is based traditionally on how the two are seen. If you look at what we now do to support victims, before we introduced the victim and witness care units, victims were not routinely kept in touch with precisely what was happening. The needs assessment that we now make in terms of how to enable them to come to court was not dealt with in a coordinated way. In terms of the support they now receive it is significantly different from the fragmented system that we used to have. Many victims will say, "We come to court. We see defendants being looked after, not just in the criminal justice procedure but being given support in other ways to enable them to deal with this process. We do not receive the same care and attention." That was not just a perception; that was based on the reality so redressing that has been something of real importance.

  Q75  Chairman: You are not suggesting that there is evidence that public safety is being prejudiced through some sort of imbalance or that the rights of criminals and terrorists are being prioritised over the rights of victims?

  Baroness Scotland of Asthal: No. We have clearly seen in the last few years that there is more that we can do to care both for victims and offenders so that that rebalancing is clearer. We have to remember that confidence in the criminal justice system is extremely important. If people do not feel confident that the system is fair and proportionate and on their side, we will be doing a great disservice to the system itself because people have to have the confidence that what we are doing in the criminal justice system works and it works for the law abiding majority.

  Q76  Chairman: In relation to the IND review, the paper suggests there is a risk averse culture across immigration, asylum and criminal justice based on "some evidence" of a "sometimes cautious interpretation". Can you give us some examples of that?

  Baroness Scotland of Asthal: In terms of the sort of practical issues which people think they have to take into account, sometimes we have heard examples of people thinking that physical things had to be put in place. What is the quality of accommodation? Are they entitled to take into account the views that people may have about each other, a whole series of things which could distort the way in which judgments are made. We are coming back to this myth busting idea. People are just under-confident: "Can I do this? Is it a proportionate thing for me to do? Am I entitled to take into account past behaviour?" What we seek to do is to give better advice. We are coming back to the advice I was talking about in terms of the panel, in terms of the website and also looking at the programme. We have four projects of e-learning and an e-learning programme so that people can look at the frequently asked questions, get reassurance and know and have the confidence to know that what they are doing is in the right framework.

  Q77  Lord Judd: Would you not agree that in this approach what is also very necessary is public education and understanding about the issues with which the system is dealing, because if you go very fast in this direction while public understanding is pretty superficial and informed by the tabloid press, if you are going to enable the public to feel that the system is on their side, you may find yourself doing things which you just know ultimately are not going to be helpful at all.

  Baroness Scotland of Asthal: Public education is very important. We have to find ways of engaging the public in the issues with which we and certainly this Committee are dealing all the time so there is a better understanding. We have spoken earlier today about some of the misunderstanding that there has been in relation to the way in which things operate and it is very important to address that. That background is one against which we will look for the work we are trying to do now to make sure these myths can be dispelled, and I think we agree with this Committee that there are a number of myths.

  Q78  Lord Judd: It is also very important, is it not, that judges, for example, are not worrying whether they are on the side of this person or the other but they are deciding what is just and right in the cases before them?

  Baroness Scotland of Asthal: I would absolutely agree with you.

  Q79  Lord Judd: We have to watch that, do we not, in the context of this new culture?

  Baroness Scotland of Asthal: Getting the balance right is not something we have to be worried about because what do the courts do? They are supposed to be just, fair and transparent. They are supposed to behave proportionately. I am not so much concerned about judges not having the robustness to deal with this sort of situation. I think they do have. It is getting an understanding of the process that they are engaged in for the general public which is going to be a real challenge for us.


4   Note by witness: They dismissed the appeal. Back


 
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