Joint Committee on Human Rights Minutes of Evidence

Examination of Witnesses (Questions 240-259)


4 MARCH 2008

  Q240  Chairman: Can I put one further point about the issue of databases because they are a tool of modern society? Is your concern more that we are drifting into this unconsciously or is it an objection per se? I will give you an example, the other day I renewed my tax disk over the phone and it was all "press buttons" and they were able to access straight away the fact I had insurance, an MOT certificate, from all the different databases, and it took me a matter of minutes to do something where previously I had to queue up at a post office and produce all these bits of paper, so for me although it was matching up all these databases it was extremely convenient and I did not have any objection to that. On the other hand, I suppose, you could say, "Is it the right of the state to know whether I have insurance and an MOT and all the rest of it?"

  Mr Porter: I totally get that, I am not a Luddite about these things, I just think there is inbuilt in these very large databases we are building a problem for the individual. Over the last ten years, and you could extend it way beyond the Labour Government, it does not matter to me, the relationship between the individual and the state has slowly shifted and the state is requiring the individual to prove him or herself at many more turns during the day or the week than previously. In my belief that sets the individual at a disadvantage to the state, it is something which happens very quietly and very gradually. You perhaps know the metaphor about the boiling frog—if you put a frog into a pan of water and it is boiling, the frog will hop out, but if you put a frog into a pan of cold water and gradually heat it, the frog never realises it is going to die. So that boiling frog metaphor does help us understand I think how we are drifting into a state without anyone saying, "Let's think about this, let's really ensure that the average citizen has a right to privacy." I did mention in my submission there is extraordinary work going into children's databases; there are four or five children's databases. I have a feeling it is unhealthy for people to be so much the prisoner of their early history. I was dyslexic when I was a kid and I would not want that to blight my whole career, but lots of children have problems with discipline, or their parents are having divorce problems and so forth, and this is all reported in care assessment frameworks. I dislike the idea of that history of a child pursuing somebody into adult life and being available to numberless, nameless civil servants. I think we should have a greater grasp on our personal information.

  Q241  Chairman: Presumably therefore you would not object to a paper file for the purposes it would be required for to deal with that kid within the local authority, what you are objecting to is the computerisation of it?

  Mr Porter: It is not only the substance, if it were my own personal information I want to know who is looking at it and I want access to that information and to be able to correct mistakes. This is not a perfect system and databases do not always work. It is impossible to get a database which has large scale accessibility and security; I think there is a formula which says you cannot make a database with all those characteristics. So we have to realise that technology, while making the renewal of your tax disk very much easier, is not the only answer for managing society. I think we have to also understand it does have implications for the relations between the state and the individual. It is a difficult concept. I know when I am arguing with my friends they say, "You feel free, don't you?" I do feel free but I am aware of what is down the road.

  Mr Clarke: I agree with Henry Porter, the issues he raises need to be addressed. The issue for me is, without narrowing it too much, are they best addressed by some declaratory Bill of Human Rights, which then facilitates the judges looking on a case by case basis on challenges to the use of data, or is it not better to address it in Parliament? Some of these things have been; things like the expiry of criminal records. Parliament could address the use to which CCTV footage can be used. Is it legitimate to sell it, is it legitimate for it to be made available to people who are surveying individuals whether the state or private agencies and so on? Data protection we have already addressed on quite a large scale. To take the example of interceptions which is very important—far too many agencies now are allowed to have access to what is intercepted and the scale of interception is so great that it is not properly under control—I would prefer Parliament to address that rather than leaving it to individual people to discover they have been the object of an interception and then to challenge it before the courts under a rather broad Bill of Rights. That is the issue it seems to me. It is not for exactness that I argue this, it is not because I think the decisions of Parliament would be necessarily superior to the decisions of the courts in all cases, but because that is what I think the political process is for; it absorbs more argument, it sensitizes things, it listens to people and then in the end has to protect against abuses, and then when it finds out there is some deficiency in the law it is the politicians who take it in the neck and they have to change the law and amend it to cover some loophole they had not thought of. I do not think it would work making all this in effect judge-made law by having a British Bill of Rights.

  Q242  Earl of Onslow: I, like you, Mr Clarke was originally against a Bill of Rights because I, like you, thought the Houses of Parliament, founded in Oxford in 1258, was the defence of the Englishman's liberty. My family have been in the House of Commons since 1560 or something like that, so I feel very, very emotionally attached to it. But what has happened is that Parliament has become wet, it does not control the executive. It was not as if Mrs Thatcher took disagreement lightly, because she certainly did not, but the whipping system makes sure that things get rammed through Parliament. This is why those of us who, like you, wish the House of Commons did its job properly feel disillusioned because we see the House of Commons has not stopped 500,000 people being intercepted, it has not stopped the police suddenly bringing up without statutory authority a vehicle licence reading system, it has not stopped the DNA profiling of innocent children and then biasing it against black children as well. These are abuses of what I call our island story's liberties to which I am so passionately attached. This is why one is saying, "Perhaps we ought to have something else which says to Parliament, `You have done it wrong.'" I do not come to a Bill of Rights because I want to but because I see the House of Commons failing in its job, and also ourselves as well because we do not accept our own legitimacy—we are always terrified of it, so we are too frightened to be beastly to the House of Commons which we ought to be much more frequently. I think all Parliaments should be thoroughly beastly to ministers on principle anyway. How do you answer that charge?

  Mr Clarke: Firstly, I am extremely keen on parliamentary reform and alongside the arguments I have given you I do believe Parliament has to be made stronger vis-a"-vis the executive, it has throughout my life become weaker and that process has gone too far and needs to be reversed. That is a whole separate subject which no doubt this Committee and many others will look at. I respect that view, but Parliament has not become too powerless. Let me take some examples. I am going to be voting against my whips and with the Government most of this week as it happens and the cross-party voting for most of this week will be quite considerable, so an analysis of what is wrong with Parliament—and a lot is wrong with the Commons—is sometimes a bit wide of the mark. Take what we have done, and the upper House played a bigger part perhaps than the lower House but both did, the 90 days' detention without trial was blocked in Parliament. I voted against the renewal of control orders the other day when my party did not, and I do not think they are going to last much longer and I think Parliament is eventually going to throw them out. We have not done too badly against some of the stuff recently. The reason we have allowed things to happen is I am afraid because of public opinion. As an elected politician I am under no illusion that probably the majority of my constituents agree with the friend of Mr Porter this morning who said, "If you have not done anything wrong, what have you got to worry about when it comes to DNA databases, CCTV and the rest?" I do not think the majority of my constituents are against 90 days' detention without trial, the majority would say, "If they are terrorists you should detain them for as long as you need before you get proof you have the right man." So the weight of public opinion, because of reaction, an understandable reaction perhaps, an hysterical reaction perhaps, to recent events and the constant fear of terrorism and organised and violent crime, tends to press for these things. Parliament only defuses it to an extent, Parliament resists those pressures to a certain extent, but when Parliament does I think it is more effective, and to hand it over to judges would lead to constant populist campaigning for the law to be changed and for judges to be over-ruled. Indeed I think the reason we have this bizarre public view of the European Convention on Human Rights and considerable hostility to the Human Rights Act, which you and I have both been persuaded of the need of, is because the public are constantly being told that all kinds of villains are thriving because this foreign law keeps protecting them. The press love to feed the public with allegedly outrageous cases of ridiculous things being done in the name of the human rights of a prisoner. I think the political process handles that better, although I do think both Houses of Parliament need to be made stronger vis-a"-vis the modern executive. You cannot dismiss altogether the restraint that Parliament does impose when Parliament has the courage to do so.

  Q243  Earl of Onslow: I have heard obviously the same views you have from the public on the Human Rights Act. I completely accept that I am not elected, I am here because my forebear got a title from George IV, which is a perfectly good reason.

  Mr Clarke: I am familiar with the history of Speaker Onslow.

  Q244  Earl of Onslow: A very great man; very great. Three of them!

  Mr Clarke: You are elected by one of the more curious processes of English democracy.

  Q245  Earl of Onslow: I say to Lady Jay, "We elected peers" which goes down like a lead balloon. The point I was going to make is, if you explain to people what the Human Rights Act is, it is quite surprising how very rapidly they change away from the "Daily Mail" view. But there is also a rising worry about an over-mighty executive and the boiling frog metaphor seems to me exactly right. If Parliament does not do something about it, and Parliament has let these things through, if somebody evil gets into power the machines of tyranny are there and it is that which worries one.

  Mr Clarke: But if you have a Bill of Rights defending privacy, obviously the drafting would go well beyond that, how do you draft a Bill of Rights which protects people against the universal DNA database, if that is one of the things you are worried about? Actually on that I find my own views are ambiguous and so are the views of the public actually, because I agree with you that a sensible conversation with a member of the public rapidly moves most people away from simplicity. It obviously can be very important to have the DNA of people who have a history of a particular type of violent or sexual attack, and that leads people to say, "Why should we not have the DNA of every adult male in order to deal with this because the others will have nothing to fear." I am uncomfortable about that, I think most of my constituents are uncomfortable about that. If it ever has to be resolved, I would prefer legislation laying hard and fast rules about which people can be obliged to have their DNA kept on a national database and which cannot. I think the judges will find it very difficult if you faced a judge with the argument, "You draw up the rules for a database because Parliament thinks this should be decided under a Bill of Rights."

  Q246  Earl of Onslow: But when we invented fingerprints, Parliament came to a perfectly sensible view, that you had a fingerprint file and if you were found not guilty they were destroyed.

  Mr Clarke: Yes.

  Q247  Earl of Onslow: But Parliament has not done that with DNA files. That is the point. Do not think I do not understand the difficulties because I do, I understand the difficulties of drafting, I understand all of these things, but I am almost saying that dreadful cliche«, "Something must be done." Mr Porter has shown with extreme clarity where the abuses have come.

  Mr Clarke: Do you not think the climate of opinion has changed? Fingerprints were introduced when fascism, totalitarian states were part of everybody's experience, people had been fighting such things, they had seen examples of such states and there was extreme sensitivity to the idea that the authorities could hold your fingerprints even when it turned out you had been cleared of any suggestion of criminality. The mood nowadays, and in my opinion taken to excess, is fear of terrorism, fear of crime, fear of disorder, and I think some of these things get canvassed. Some of these things have been defeated recently precisely because governments feel it necessary to respond to these public concerns and look tough about them. Resisting those kind of pressures, it is up to Parliament to stand up to it, I agree.

  Q248  Earl of Onslow: But you are the sort of person who does stand up for what you think is right—

  Mr Clarke: A lot of politicians do.

  Earl of Onslow: Surely it is Parliament's job to stand up for what it thinks is right rather than to follow meekly. That is what Burke said, is it not?

  Q249  Chairman: The problem is that Parliament in thinking what is right or wrong may disagree with you. To take Ken's point and I perhaps put this to Mr Porter, looking at the parliamentary approach to this, thinking of DNA databases and also databases generally, I see the force of your argument that we sort of drifted into this without a conscious decision, I do not know if Parliament made a conscious decision that a DNA database would include everybody who was arrested for anything. I do not think we did.

  Mr Porter: It has not, no.

  Q250  Chairman: Would it satisfy you if Parliament had made a conscious decision, one way or the other, that we should have databases on everybody or a database of suspects or a database of convictions?

  Mr Porter: Absolutely we need that debate now rather than the drift.

  Q251  Chairman: Would that satisfy you?

  Mr Porter: What would satisfy me is, first of all, if this had been debated, but it just happened. This is a statutory instrument. I do not think there is any statutory basis for the database, in fact I am fairly sure there is not. I do not think there is any statutory basis for the collection of people's car journeys down motorways on automatic number plate recognition cameras. What worries me is that this thing does not ever come before Parliament so the issues can be explored and ventilated so we can have the argument about DNA and what it tells you. I think in the South African constitution, and you can correct me on this, there is an article which says that people have the right to biological integrity and I think that is what we need in this country. Let us at least have it debated in Parliament. That is what worries me. All this stuff is happening without debate in Parliament, it just happens, your phone records are suddenly the state's property. That is what worries me and that is why I agree with Lord Onslow that Parliament is not standing up and not allowing the public really to understand the issues by having a debate.

  Q252  Chairman: On the database issue, we find ourselves in this Committee frequently recommending in our reports on Bill scrutiny, that the various safeguards and protections for a particular given database should be explicitly stated on the face of the Bill rather than in subordinate legislation. That I suppose is Ken's approach which is that Parliament should decide on these issues. The trouble is, they are all buried in affirmative resolutions or indeed negative regulations from time to time. Would it satisfy you if we saw more of that, ie the purpose of the database and the safeguards surrounding it expressed on the face of the Bill?

  Mr Porter: Yes, the packaging, the warning on the label, should be much more explicit. I am no expert in these things, I have become interested in the last three years writing for the Observer, and I am struck by how astonishingly ignorant people are about such things as databases, about the potential of reading people's DNA and what that will mean in 25 years' time; you will be able to tell an awful lot, maybe about people's personalities, their intentions, the way their lives are likely to go. Of course we trust our governments to use them properly now but I am just saying we are laying up a hostage for the future if we do not really think about these things and allow the public to debate and understand these issues by having them ventilated in Parliament.

  Q253  Chairman: Going back to the Bill of Rights debate, is your advocacy for the need for a Bill of Rights a frustration of the fact that these things are not happening because Ken's parliamentary model is not working, or do you see the need for a Bill of Rights as a fundamental safeguard as well as the need for Parliament working properly?

  Mr Porter: It grows out of the fact that I do not think Parliament has protected us. The list of encroachments of liberty I have given you in my submission I think is an astonishing list and I would not have believed 20 years ago that I could ever have made that list. I am astounded by it. It has grown out of my frustration with these things being passed through Parliament, like the Civil Contingencies Act, which I have severe doubts about, or the Inquiries Act, which seems to be Parliament voting against its own sovereignty and powers. I wish that there was leadership in Parliament which stood for Parliament, not for the parties.

  Q254  Chairman: But the consequence of that is ultimately a system of complete separation of executive and Parliament, is it not? Is that not where the logical consequence of that leads to? A presidential system?

  Mr Porter: I suppose it does, although of course the executive is the first born of Parliament in a sense, it emerges, it is made from Parliament. I do not wish for things to be that radically separated, I want the thing as it was designed to work better. I want Parliament to call the executive to account and scrutinise its decisions, particularly statutory instruments, much, much more.

  Q255  Earl of Onslow: May I also put in another point? I seem to remember in the Wilson Government the criticism of Michael Foot when he introduced five guillotine motions in one Parliament, and the House of Commons was in uproar, saying this was monstrous and the Government was kept up all night and there was general mayhem all round. Now—and it is not for me to criticise another House—you do seem timetable motion after timetable motion after timetable motion. We have seen the Criminal Justice and Immigration Bill come to our House in a state of complete undigested pap, ill-thought through, and it has had to have about four out of the six parts taken out of it because it was guillotined in the House of Commons and did not have enough time. Some people have criticised, whichever view you take, the process over the Lisbon Treaty. It is the executive controlling the timetable as ruthlessly as it now does which has seriously undermined Parliament in my view.

  Mr Clarke: I think that is one of the problems. I took part in the timetable debate and it is not only the timetable, governments are not the only initiators of key legislation and the Government has not felt under adequate political pressure to produce legislation in these areas, possibly because a lot of the public and a lot of the legislators do not agree it is needed, but we all do and I think eventually somebody will want to legislate on DNA which is quite an interesting one to stick to as an illustration. The test of human rights tends to be when it protects somebody who is unpopular and does so in controversial circumstances, so the first time that the police have a really nasty and highly publicised case on their hands and the chief constable says, "We could actually clear this up but unfortunately the law does not allow us to have an adequate DNA database, if we only had a nationwide database I could give you the name of the man who committed this offence tomorrow", you have to ask who does the Daily Mail blame and who is going to defend themselves in that action? I think it is better if the politicians defend themselves. The politicians amend the legislation, if the chief constable is right and you have actually gone far too far. I do not think an unfortunate judge—I suspect the judges would not like all this landed on them—should be left saying in a particular case that his or her ruling is that DNA is taken in these cases and then find the whole case is the centre of wild political -with a small p—controversy a year or two later when it is put to the test.

  Professor Bogdanor: It seems to me that Lord Onslow has raised a very important general issue which we ought to discuss, namely that we rely upon Parliament at least as much as we do on the judges to protect our rights, and that the judges can never be a substitute for Parliament. Behind Parliament of course lies the people. That brings us back to the problem which I raised earlier, that at present the British people do not feel that they own the Human Rights Act. This perhaps brings us back also to the case for a British Bill of Rights. If the British people felt that they owned it, they might put pressure on their MPs in Parliament to scrutinise the executive more carefully on human rights issues. That might be one way of trying to achieve what Lord Onslow would like to achieve, a more assertive Parliament.

  Mr Clarke: I do blame the political class for that. We should not have got into this situation over the European Convention on Human Rights, which was completely uncontroversial until 15 years ago. The allegation was made in the heat of debate about the European Union, "This is Brussels-made law", and the best argument to use, even with the most vociferous ultra-nationalist Euro-sceptic, is to recount the history of it. This is post-Second World War legislation, written by British lawyers—David Maxwell Fife and others—to demonstrate the values we fought the War for and to try to encourage continental Europeans to embed those values into their own future laws and society. You could make the most patriotic defence of the European Convention on Human Rights and far too many otherwise responsible politicians have preferred to flirt with this idea that this is funny, foreign-made law. Personally, I think some of those are now the advocates of a British Bill of Rights and they are a bit stuck when it comes to saying exactly what they want to put into this British law as opposed to the foreign law which is going to protect them. Of course, not surprisingly, they keep going to social and economic rights which take you straight into political controversy between left and right as to exactly what is a right and what is an issue about priorities and so on.

  Q256  Chairman: We may come on to that later. I certainly do not think we disagree with you about the way the Human Rights Act/Convention has been misinterpreted by politicians, and we have published various reports to that effect. It has become the sort of Health and Safety modern-day excuse for incompetence and taking bad decisions and it just gets the blame for everything even when the decision has absolutely nothing whatsoever to do with it. What is quite interesting is, picking up on Professor Bogdanor's point, the fall-out from the YL case, the one about care homes, has been quite interesting because actually we now have quite a strong powerful movement coming from the elderly demanding that the consequence of the YL case is to make sure they have their human rights in their care homes. Partly I suppose that is because of our wonderful report on this issue, which we will be debating in Parliament next week—to give it an advert—but what we are now seeing is potentially people starting to realise they do have some importance in those sort of circumstances.

  Professor Bogdanor: This is an excellent example because part of the difficulty about the Human Rights Act is that when the Convention was drawn up it was concerned, as Kenneth Clarke indicated a moment ago, with the problems arising out of the experience of fascism and national socialism. People were very worried about the stability of democracy. But the problem is that the Human Rights Act has had to deal with very small and vulnerable minorities who cannot easily get into the electoral arena. Many people find it difficult to empathise with the rights of prisoners or suspected terrorists. Therefore the case you mention, Chairman is, if I may say so, extremely important because many people can identify with that particular issue. It is a general problem concerning the Human Rights Act that we need to persuade people of its importance. Perhaps we could persuade them that they at any time could be part of a very small and vulnerable minority, they could be detained in error, as people have been detained in error, and they would want their rights protected in such a situation.

  Q257  Lord Bowness: Could I ask why you believe, Professor Bogdanor, people would own a British Bill of Rights? Would not the same people who look at the Human Rights Act view it as something introduced into Parliament as another political stunt, probably introduced to guarantee the rights of minorities they do not happen to like? What is the thinking behind that because we call it a British Bill of Rights they would somehow all line up behind it?

  Professor Bogdanor: Survey evidence indicates that people very much want to see a British Bill of Rights and that they feel it ought to contain trial by jury which people feel is an issue concerning large numbers of people; a very large majority also feel that it ought to contain something like the right to National Health Service care. So there are certain rights one could add to the Human Rights Act which would make people feel that human rights belong to them and that it was not just a matter for very small and often unpopular minorities.

  Q258  Lord Bowness: I think our three witnesses have given very full and informative answers and covered many of the things I was going to ask. I think our witnesses have made it clear, and no doubt they will correct me if I am wrong, they would not want to see any lesser protection than the European Convention on Human Rights. We have had different views on economic and social rights. There are just two things left, I suppose. If you had, and I am not suggesting you should, a Bill of Rights with economic and social rights, would there be any point in having it unless those rights are actually justiciable? Secondly, ought one to get into the area, either by giving the courts the power to develop the law or through the Bill of Rights itself giving the citizen the right, of actually challenging breaches of rights by private power as it is described?

  Mr Clarke: I think law which is not justiciable is pointless; gesture politics. So when you legislate you should know who is going to litigate and what is the nature of the litigation, which is one of the things which worries me. For example, on health, which Vernon Bogdanor has mentioned, I think if you give a right which people believe means they can go to court to demand a particular treatment for a particular condition that they want and that is going to be decided by the judge, you will find it very, very difficult indeed to manage a National Health Service which is chasing infinite demand out of finite resources. I think we will also have a lot of arguments about clinical decisions, about alternative treatments, experimental treatments and so on, so I am very wary of that. On private institutions being subject to a Bill of Rights, that is the point raised by the very important nursing home case. Again I am hesitant on that because again there is problem why we do not legislate on nursing homes.

  Q259  Earl of Onslow: Because you haven't!

  Mr Clarke: If you alter the existing Bill of Rights, which is what I think is proposed by most people, so that the Human Rights Act we have got should apply to private institutions, sometimes acting as an agent of government when it is more arguable, as well as public ones, along will come a steady procession of people who want every powerful institution to be made subject to it—banks, building societies, multinational companies, supermarkets, farmers who go in for factory farming—I can just see a flood of people coming along with human rights cases. I concede I may be wrong because these are exactly the fears I had about the Human Rights Act in the first place and—

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2008
Prepared 10 August 2008