Joint Committee On Human Rights Minutes of Evidence


Examination of Witnesses (Questions 100-114)

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

30 OCTOBER 2006

  Q100  Nia Griffith: Would you be able to publish in, say, six months' time a list of where deportation has been suggested and carried out, where it has been suggested and has not been carried out and the reasons for that?

  Baroness Scotland of Asthal: I would certainly be happy to look at that. I do not think I can give you a guarantee that we will be able to do that in the next six months. As you know, Article 8 does enable us to do that but I will certainly look at that and come back to the Committee with what, if anything, we can do in relation to it.

  Q101  Lord Lester of Herne Hill: I should declare an interest because I was in the Roma Rights case all the way through. As you know, that case decided that it was unlawfully discriminatory on grounds of race to practise ethnic profiling by making broad assumptions, in that case about Roma seeking to come to this country. The Law Lords relied upon customary international or Convention law. What steps has the government taken in the wake of the decision in the House of Lords in the Roma Rights case to make sure that any future targeting of IND activity on high risk routes and traveller profiles will not be inherently racially discriminatory and therefore unlawful by acting upon broad racial stereotypes that do not apply to each individual?

  Baroness Scotland of Asthal: I can certainly assure you that we took those matters very seriously indeed. We developed minimum data sets setting out the data and we issued guidance defining the quality of the data. Those issues have been very fully taken on board in relation to making sure that the way in which we monitor is now compliant with the Act and not unlawfully discriminatory.

  Q102  Lord Lester of Herne Hill: Does that mean that therefore the Home Office Immigration and Nationality Department officials will be instructed firmly not to engage in racial profiling in their making of decisions?

  Baroness Scotland of Asthal: There is not racial profiling in making decisions. What is lawful is in relation to acting on data where there is an evidence basis for a certain nationality and responding in that way. We have made sure that those issues are far better understood.

  Q103  Baroness Stern: We all welcome the government's recognition that certain ethnic groups are disproportionately represented amongst those stopped and searched, arrested, convicted of a serious crime and imprisoned; and this raises a question as to whether the criminal justice system contains any built-in discrimination on racial grounds. Could you give us more details about the fundamental reform in data collection under section 95 of the 1991 Criminal Justice Act which is envisaged and whether you are also thinking about whether current training and guidance for front line officers is adequate?

  Baroness Scotland of Asthal: You will probably be familiar with what we are doing in relation to stop and search because we have identified that there is a level of disproportionality right the way through. The question has always been on what is that disproportionality founded. Is it improper or is it not proper? What we were seeking to do was to try and find practical ways of testing out how this had occurred because one of the most frustrating things is the stubborn way in which, notwithstanding the various strategies that have been taken to address these issues, we were not getting a material change.

The Committee suspended from 6.18 pm to 6.25 pm for a division in the House of Lords

  Q104 Chairman: Can I go on briefly to the question of people with mental health problems who are still in prison? The government has recognised that there are far too many non-dangerous people who are in that category. How many people do you think are still imprisoned and what are you doing to try and take steps to divert them into treatment?

  Baroness Scotland of Asthal: I do not have the number at my fingertips. I have the percentage and the number of prisoners with serious mental health problems transferring from prison to the National Health Service has increased by about 24% between 2002 and 2005. I will certainly seek to get you the overall number. I think we all know that that has historically been a big issue. One of the advantages of having an opportunity to work much more closely with the National Health Service in delivering change in prisons is that we have been able to better target individuals who suffer from mental illness and we have also been able to get them through more quickly. One of the other issues that we have clearly come to appreciate is of course that a number of those who enter with drug or alcohol dependency sometimes mask underlying mental health and psychotic illnesses which we are picking up once they withdraw, either from drugs, drink or from those other aberrant effects. There is a huge amount that we are now trying to put together for better training, so that we can better identify people early in the criminal justice system to look at how best we could perhaps divert those whose primary issue is mental illness and not criminal activity. There is quite a lot of work that we are doing with the mental health team in health. We have a joint mental health team with the Home Office now doing some very good work.

  Q105  Lord Plant of Highfield: Given that two people managed to abscond from or evade control orders which were imposed on them, in the light of that your colleague, Mr McNulty, speaking to both the press and television media, suggested that the government might need to think very carefully about derogating from Article 5 of the ECHR, the right to individual freedom, on the grounds that it needed to be able to impose more onerous control orders than Article 5, according to the Court, seemed to allow. Is the government seriously contemplating derogating from Article 5?

  Baroness Scotland of Asthal: What we are looking very seriously at is how control orders operate and the legislation in relation to them. You will know that we intend to appeal against the most recent order. I think it would be once again premature to talk about where we would go if that appeal was not successful, but we are looking at what further or other measures we could proportionately put in place which would enable us to operate control orders in a way that would avoid derogation. Of course, there is within the Terrorism Act provision for derogation if we were to find that the other measures were insufficient to meet the needs of security, but I think we are not at that stage at the moment.

  Q106  Chairman: Could I remind you about our paper which we published just before the summer recess on counter-terrorism policy and in particular as to how we thought the circle could be squared in producing a human rights compliant system of counter-terrorism? Does the government accept what we said in the report that we do not need to extend the possibility of pre-charge detention beyond the current 28 days in the light of the threshold test operated by the Director of Public Prosecutions, which they tell us is in most terrorist cases now? There is scope for more active judicial oversight of the post-charge timetable and we should adopt a rather more robust approach to the defence aspect and the possibility of drawing adverse inferences from a refusal to answer post-charge questioning, all suggestions that we think are procedurally very helpful towards securing prosecutions and convictions and overcoming some of the reservations that have been put to us by the police and others that require a longer detention period.

  Baroness Scotland of Asthal: We were very grateful to receive those comments and recommendations. Those issues, I can assure you, will be taken into account. You will also be aware that on the 28th of last month the Home Secretary announced that he was going to undertake a review in terms of capabilities and resources for counter-terrorism and all the issues you have just addressed will be considered during that review. I cannot tell you what the outcome is. I can certainly assure you that the government is trying to think very creatively about what steps could properly and proportionately be taken to make it easier for us to prosecute those who are suspected of terrorism or indeed where there is evidence which would indicate that they are engaged in terrorist activities. Some of the issues that we have had in the past are well known and these issues are by no means simple. They are complex, but I can certainly assure you that very active consideration is being given to how we address the current situation in which we find ourselves.

  Q107  Lord Judd: Both the Attorney General and the Director of Public Prosecutions have now made clear that they favour the relaxation of the prohibition on the admissibility of intercept evidence. Will the government now treat this as a priority and urgently bring forward a legal model making it possible? When will the work currently being done on the public interest immunity plus model be made publicly available? Does not all this in reality relate pretty closely to what we were discussing about deportations?

  Baroness Scotland of Asthal: The position of the government in relation to the use of intercept evidence has not materially changed from that which we have expressed for quite a considerable time. We have constantly and consistently said that if it was possible to safely and appropriately use intercept evidence we would be minded so to do. The devil has always been in the detail as to how that could be done in a way that did not infringe upon our security and safety issues, would enable us to prosecute and would not improperly undermine the security which we have so hard won. Those issues, I can assure the Committee, have been given a huge amount of time and energy and that is certainly continuing. I cannot give you a date upon which that work will conclude but I can certainly assure the Committee that we are working on this matter in a very pressing way indeed.

  Q108  Lord Judd: It is difficult for some of us to understand how we are such an exceptional country in this respect and others have found a way. I am sure the DPP and the Attorney General take the issues you have mentioned extremely seriously and we all take it extremely seriously. I do. I find it peculiar that we find ourselves absolutely unable to move so far.

  Baroness Scotland of Asthal: You and I and a number of Members of the Committee have enjoyed this debate across the House for a considerable amount of time. I will not tire the Committee with all the reasons that the government has given in the past as to why it is difficult. All I can do is to assure you that urgent attention is being given, not just by the Attorney General and the DPP, to find a way. If a safe and secure way can be found, obviously that is something that will be done but if it cannot be found then the government will be in a position to appraise the Committee and indeed the House of what our conclusions are as soon as we have identified them.

  Q109  Lord Judd: Is not all this relevant to deportations?

  Baroness Scotland of Asthal: It is certainly an issue. I have made clear today and you have made clear on a number of occasions that our preferred position, wherever possible, is to prosecute because prosecution in relation to these offences is always the better course. It is only those cases where prosecution is not possible that an alternative is ever considered. Therefore, if there could be a way of using intercept evidence which was public interest immunity plus or whatever, of course that is something the government would be minded to do. The question is: is it possible? I am not in a position to tell you today as to the conclusion to which we will come.

  Q110  Lord Lester of Herne Hill: Could you let us have one answer though when you do come back to the Committee? Why is it possible in the United States and not possible in this country when both countries have a common law adversarial system and they have a strong Bill of Rights? Why is it not possible for us to do what they do in the United States? I would not ask you to answer that now but I would be grateful to know the answer in due course.

  Baroness Scotland of Asthal: I am certainly happy to give the Committee that answer. I think we have given it on a number of occasions but I am delighted to write to the Committee with our full answers as to why we differ significantly in our jurisprudence and our structure from other countries, the problems that we currently have and how we are seeking to address those.

  Q111  Chairman: I get the impression from your answer that we have moved from "whether" to "how". Is that right?

  Baroness Scotland of Asthal: I think it has always been "whether" and "how".

  Q112  Dr Harris: Can I ask if you are considering a new specific criminal offence of flag burning or whether you will consider it?

  Baroness Scotland of Asthal: I am not aware of consideration being given to a specific offence of flag burning. It would be quite wrong for any minister of any government to say there would never be any circumstances when any government of a different complexion in the future may not consider banning it. I have no idea whether this will be something that is considered. I do not believe it is on anybody's agenda at the moment.

  Q113  Dr Harris: Do you recognise that there is a freedom of expression issue, if I want to burn an EU flag and my colleague wants to burn the Union Jack?

  Baroness Scotland of Asthal: Or the other way round.

  Q114  Dr Harris: Without threatening anyone and without a public safety issue, that is a freedom of expression issue.

  Baroness Scotland of Asthal: There is no reason for me to believe that that is within anyone's contemplation at the moment.

  Lord Lester of Herne Hill: It does cause carbon emissions.

  Chairman: It may well be in breach of the Health and Safety at Work Act. Can I thank you both for coming along to a very informative session for us. We have had a very robust exchange and we are very grateful for the time you have spent with us.





 
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