Examination of Witnesses (Questions 240-259)
PROFESSOR VERNON
BOGDANOR, RT
HON KENNETH
CLARKE QC MP AND
MR HENRY
PORTER
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—
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