Joint Committee on Human Rights Minutes of Evidence

Examination of Witnesses (Questions 260-279)


4 MARCH 2008

  Q260  Chairman: Is that necessarily a bad thing?

  Mr Clarke: I think it is!

  Q261  Chairman: Let us take Mr Porter's example of the databases, it is not just the state that maintains databases, I am sure my bank has a huge database about me and my transactions and my credit cards—

  Mr Clarke: Your supermarket has.

  Q262  Chairman: The supermarkets monitor what food you buy—

  Mr Clarke: --- and what time of day you buy it.

  Lord Bowness: Tear up your loyalty card then.

  Q263  Chairman: If Mr Porter is right about the need to monitor databases, it is not just the state, it is all these private, big business people we need to control as well.

  Mr Porter: That is why I go for a double-barrelled privacy law which I think would be very important. The Canadians have shown it works and it is constantly finessed and tuned to take in different commercial factors as well as changes in society and so forth. I think we need that backed up by a Bill of Rights. In a sense I do not think it is a Bill of Rights issue, I would like the principle established in a Bill of Rights and then I would like a privacy law, and I think people would come round to my thinking eventually.

  Q264  Earl of Onslow: On the point somebody was making just now about the Bill of Rights entering into social and economic areas, when I first came on this Committee we were looking at human rights in old people's homes and my immediate reaction was, "This is nothing to do with the Human Rights Act, this is to do with policy and how it should be done, the Human Rights Act should be about great big principles of law, of liberty of the subject, et cetera, et cetera, et cetera." But I went along a footpath to a Damascus conversion which was simply this, it was found to be an immensely useful tool, both to the nurses who wanted to put things right and to patients to do things which they should be doing anyway, and because somebody said it was against human rights they all got frightened and did it. That is a very bad reason to have it but in some ways it is useful, untheoretically, just practically. Again this is the conversion I had originally because Parliament was not doing its job. They are tools to make people do their jobs and you were saying just now, "Surely we should do something about ... .", I am sorry I cannot remember.

  Mr Clarke: I said why do we not legislate on nursing homes.

  Q265  Earl of Onslow: Yes, that was it, and I interrupted and said, "But you have not". That is what gets those of us who are libertarians, in the oldest sense of the word, because Parliament lets these things happen.

  Mr Clarke: Parliament does not get invited to legislate. Let me be plain, I am not coming out in favour of new legislation on nursing homes but say this Committee advocates new legislation on nursing homes, the Minister consults a bureaucracy which is very, very close to people who own nursing homes, work in nursing homes, represent those in nursing homes, with great respect there will be a tremendous consultation which will be responded to by people who say, "The nursing home movement in this country is a fantastic contribution to human welfare", and it does require quite a long process before legislation is brought forward to make a real difference to the way nursing homes are run. It is amazing when you are a minister in these individual areas that sometimes your bureaucracy, certainly most of the lobbies you work with, constantly bombard you with the need for more surveillance, more information, more data and more protection against dreadful newspapers who try to claim there is some deficiency in the system for which you are responsible. That is why we get so little reforming legislation. If the Government brought forward a Bill on nursing homes designed to raise nursing home standards and to stop the abuses of individual residents, scarcely a Member of Parliament would dare to speak against it and nobody would vote against it; it would be in favour of motherhood. It is the bureaucracy in the system which makes it slow to bring these things forward.

  Q266  Chairman: We have made a lot of progress in getting the Government to legislate on YL, but by focusing on nursing homes we are missing the point about what the YL case is actually about, and what it is about is the applicability of the Human Rights Act to public services delivered by privatised contracted-out services in the broadest sense. To resolve the issue we have to make a decision ultimately whether we think it is right that if services are continually being privatised, contracted out, the people who receive those services suddenly lose the rights they have to enforce those rights against the organisation delivering the services. We have talked about this particular aspect, there is a whole series of other things which are affected which came out of the debate we had.

  Mr Clarke: But if you are going to be able to sue your gas company on some new basis beyond contract or beyond the ordinary law of tort, should that not be as a result of a new piece of legislation and not because some judge has suddenly decided to interpret the Human Rights Act in a way which goes in your favour?

  Q267  Chairman: But this goes beyond that, this is actually looking at the general applicability of the rights rather than the specifics.

  Mr Clarke: Yes. Your supermarket database, if you are worried about that, does it not need a Bill on supermarket databases not a judge struggling to decide what your human rights are about what a database should have on you and who they should sell it to?

  Q268  Lord Morris of Handsworth: Can I try to clear up in my mind the positions that Ken and Henry take. You said, Ken, at the outset that you were not persuaded we needed a Bill of Rights and your response is that we should leave it to Parliament, on the other hand we have Henry's paper which demonstrates that Parliament is not really working. So between the two situations the problem still exists; some problems still exist. Could I ask whether you think the human rights model of protection gives sufficient importance to the role of Parliament? Would you want to see the role of Parliament strengthened in order to ensure that human rights, which you passionately believe in, are in fact protected?

  Mr Clarke: I said I am not persuaded, which is less strong to my mind, because I have gone through the same process as Lord Onslow of being persuaded that things were correct which I was previously against. I understand the feeling Parliament is not satisfying Henry Porter so I therefore fall back on the argument that parliamentary reform and the strength of Parliament's ability to scrutinise the executive would be my preferred route. I think you should ask Vernon Bogdanor to decide what is the key argument. It is the balance between the Bill of Rights and therefore a judicial review, particularly if the judiciary have been given the right to override legislation and so this legislation is contrary to this entrenched Bill of Rights, which some people would argue, and whether—and I am not a pure parliamentary democrat because I accept that Parliament can commit excess—normally the parliamentary process should suffice.

  Professor Bogdanor: I wonder if we are not being perhaps slightly geographically and historically parochial in our arguments here. It seems to me the onus might be on those who think we should not have a British Bill of Rights to argue why it is that the rights which were created in the 1950s are just the rights we need now and no more. We all of us think, I suppose, that society has changed enormously in nearly 60 years, why are the rights which people drew up in 1950 exactly the sort of rights we need now and no more? That seems to me historically the parochial argument. The geographically parochial argument is that we are in such a small minority amongst countries where our rights depend upon the discretion of Government and Parliament. The judges can do more than say, "Your rights have been infringed, there is nothing we can do about it, but we hope that Government and Parliament will put things right." So far Government and Parliament have put things right but there is perhaps no reason why that should continue indefinitely. We are in a very small minority of countries which have not fully incorporated the Convention.

  Q269  Lord Bowness: Supporters of the European Convention will say that it is not frozen in the early 1950s, surely the courts interpret it in the light of the jurisprudence of the courts? I put it to you, is it entirely fair to say it is frozen at that point in time?

  Professor Bogdanor: It is not frozen in that sense but it is frozen in another sense that there are certain rights which now occur to many of us, such as for example rights connected with the environment, which were not thought of at that time. There is also an argument, and obviously it is a very controversial matter, about the right to health care but I am sure people can think of other rights as well—the information society sort of questions which Henry Porter has raised—people did not consider those very seriously in 1950—why should they have done, they did not seem to pose such serious problems then. But we do live in a very different sort of society now. I would like to repeat what I said earlier, that if the framers of the Convention, which included British Conservative lawyers, were here today they would probably imagine a wider set of rights than were in that Convention which was good for its time but of course society advances.

  Q270  Lord Bowness: Chairman, forgive me, I asked the question and I should not challenge the answer but, if you are going to include those sort of matters, do you not get into the same difficulty that the framers of the Charter of Fundamental Rights got into, whereby including principles as opposed to the Convention rights means they have to virtually make all principles subject to national laws? Yes, the environment might well be a great issue that people would want to see mentioned, but you can hardly have it on the basis of something universal across the piece as a principle. It would either have to be subject to national laws or, in our case and the case of 26 other countries, possibly European Union laws on the environment, but it would be on laws produced by some legislative process rather than a statement of principle in a document.

  Professor Bogdanor: Yes, indeed, it would be a standard which Member States of the Council of Europe would be expected to conform to. I happen to think that is a very good example for those in favour of a British Bill of Rights because obviously the right to environmental protection depends upon certain duties being fulfilled by numerous people and organisations. So that would bring out one point, that rights involve correlative duties and responsibilities. Many are talking about a Bill of Rights and Responsibilities; in areas that does not make sense, but I think it perhaps does make sense in the area of the environment.

  Q271  Lord Morris of Handsworth: My understanding of your position, Professor, is that our rights are not to be frozen in the 50s, 60s, 70s, or whatever period in time. Would you therefore support the possibility of amending a Bill of Rights, were we to have one, to make it much more flexible in order that it could in fact represent social attitudes or infringements of human rights at a particular point in the future?

  Professor Bogdanor: Certainly it ought to be amended but not I think by the normal parliamentary process.

  Q272  Lord Morris of Handsworth: What law would you use then if you support an amendment?

  Professor Bogdanor: I think it might be reasonable to say that the House of Lords should have an absolute veto over amendments, as it does over extending the date of a general election. If one did not have that provision it would be possible for a temporary majority in the House of Commons to alter the Bill of Rights for purely political purposes which obviously one wants to avoid. But my proposal would depend I suppose on retaining the current House of Lords, a non-elected House of Lords. We give the House of Lords power to stop the Commons extending the period between general elections beyond five years—the Lords has an absolute veto—and that is a kind of constitutional long-stop. So perhaps that kind of constitutional long-stop would be appropriate to prevent the Bill of Rights being amended by the normal parliamentary process, and that would emphasise its importantance as a constitutional document.

  Q273  Baroness Stern: Could I come in and ask something about responsibilities because you did mention this in your answer before last. I know that Henry Porter thinks the idea of a Bill of Rights and Responsibilities is a bad idea, and I understand that Kenneth Clarke thinks it is "platitudinous and bizarre"—is that right?

  Mr Clarke: It is a perfectly sensible debate to have but it tends to become a platitude because everyone accepts one's rights in society carry with them certain duties and responsibilities, it is not a great original insight which is being claimed by people who are suddenly making themselves philosopher kings on the subject at the moment.

  Q274  Baroness Stern: Could I ask Professor Bogdanor, who did say—at least I thought I heard you say—maybe there is something in this idea about rights and responsibilities, in the sense it could apply to the environment? Do you think it would be appropriate to have any responsibilities in a British Bill of Rights and do you think there is a connection between, "You will only get your rights if you are good with your responsibilities"?

  Professor Bogdanor: It seems to me that all our rights depend upon others discerning their responsibilities. For example, if I have a right to freedom of speech, you and others have a responsibility not to interfere with my exercising that right. The point I was making about environmental rights is that this is a situation where the correlative responsibility is absolutely obvious. As you suggest in your question, the issue of rights and responsibilities has been taken much further in two different ways. The first is to try to answer the problem of social cohesion, and there I agree with Kenneth Clarke very strongly that a Bill of Rights and Responsibilities makes no sense, it is confuses what can be achieved by the law with what we need to achieve by social and political means; the problem of social cohesion is very complex. As to the other point, that our rights should depend upon our responsibilities, that cannot be correct. I think the former Lord Chancellor, Lord Falconer, said that there were only two criteria for our having rights, the first was that we were human and the second was that we were here in Britain. Obviously some people who are here in Britain are not citizens but they have rights just as much as citizens, so I think the suggestion that rights should depend upon responsibilities argument is a very poor one. Some people have implied that, that if you are not a responsible citizen you do not have any rights, and that I think is quite mistaken.

  Q275  Earl of Onslow: I think actually it is all right to be irresponsible but take the consequences if you are.

  Mr Clarke: I think you have a right to do whatever you want until Parliament and the law forbids it, in any free society. You are open to criticism if you exercise your freedoms in a way which makes a thorough-going nuisance of yourself, and it is up to Parliament to do something about it if a lot of people are doing it. I think it is dangerous if people start saying that people do not have human rights in a society unless they demonstrate they are behaving responsibly in some other way. For welfare benefits, of course, you should lay down rules and say, "It is perfectly open to Parliament to agree the rules which say you are not entitled to the benefits if you won't do this to qualify for it", but to dress that all up in human rights' language I think is a mistake and I agree with Professor Bogdanor. The whole question of how do you get a society to feel mutual obligations to each other and get people to behave in a responsible way, whilst appreciating they should not take for granted all the rights they have, is not something I would either legislate for or litigate about.

  Q276  Chairman: Can I come back to the issue of social and economic rights which we did not fully explore? Perhaps I can ask Professor Bogdanor to start with. I think Ken's view is, if they are aspirational there is no point having them, to summarise, but if you look at the South African constitution they have very, very tightly constrained justiciability of rights which are subject to resource implications. So there is a degree of justiciability but it is very, very difficult in the way it is phrased. Albie Sachs said to us, "There is nothing wrong with aspiration and a country without aspiration is a country which does not really think about its future", or something along those lines. Do you think there is a role for social and economic rights if they are properly worded and constrained in a similar way to South Africa?

  Professor Bogdanor: I accept that one should not put aspirations in a Bill of Rights, that a Bill of Rights should be concerned, to refer to an earlier question by Lord Bowness, solely with what is justiciable. Within that limit, I think one can require a certain minimum from Government in the modern world in social and economic matters and there already is, as I said earlier, one social right in the Convention, which is the right to education. No one supposes that this gives you a right to a certain sort of education or a certain standard of education. Principle for a very minimal floor, and I cannot see why by analogy the right to health-care, for example should not also be there. I cannot see the force of the argument that social and economic rights as a matter of principle are not suitable for inclusion in a Bill of Rights.

  Q277  Earl of Onslow: On this issue of right to education, what is education? Does it mean at the age of 6 you can count to three, or does it mean that everybody has to be a professor of nuclear physics by the age of 30 or a professor of law at Oxford? How do you define education and how do you actually make it, as Mr Clarke says, justiciable?

  Professor Bogdanor: This is a matter for the courts and there is a large case law I believe on this issue. The only point I was concerned to make was that it does not seem to involve insuperable difficulties. Obviously no one suggests that everyone has a right for example, become a professor of nuclear physics by the age of 30, but I think one can rely on the judges to interpret this sort of issue fairly sensibly.

  Mr Clarke: It has never actually been used, as far as I am aware. I am not aware of any litigation because everyone has a state education system and nobody seems to have used it, but on health they might. Do I have a right to demand homeopathic treatment—that would be a very controversial case.

  Chairman: If we look at how South Africa has done it, they seem to have squared the circle quite well on health, but that is going into a lot of detail we have not got time for today.

  Q278  Mr Sharma: What kind of consultation should there be about a British Bill of Rights?

  Professor Bogdanor: That is an extremely difficult question to answer because of course the danger is that the consultation is purely amongst the articulate. I believe that the Government is thinking of adopting a procedure which was used in British Columbia over the electoral system whereby a random selection of people is to be brought together in some sort of convention to consider what they regard as the essentials of a British Bill of Rights. I am not convinced that is necessarily the right solution but I find it difficult to think of anything which would be more suitable. There obviously needs to be very widespread consultation and not just amongst interested pressure groups and the articulate. The great danger is consultation only amongst the articulate, and one has to try and secure an institutional solution which will enable a very large number of British people to be involved in the arguments and to feel they owned a British Bill of Rights. This is perhaps a part of citizenship education. Your question is fundamental but very difficult question to answer!

  Mr Clarke: I would have the ordinary consultation. I think it is quite important to consult on it. I am afraid I think that normal consultation, of which I approve, tends to get a not-completely-representative set of responses but as long as you realise the responses you are getting are from articulate interest groups—and actually there are not any particular vested interest groups in this area—the response you get back tends to cover a range of issues. I would be very dubious about citizen's juries and random selections, particularly if they are going to start debating Britishness and what British values are and how British society should be made to recognise British values more. I do not have excessively patronising or scornful views of public opinion, I usually agree that the public are more intelligent than either their politicians or their journalists and if you talk it through for a bit, people begin to get a hang of what you are talking about, you tend to get more sensible ideas than the first reaction. But this is a very dangerous area. As far as the press is concerned, there is a section of the press for whom the mention of human rights tars somebody as being a wet, liberal, hopeless character who is failing to stand up for British interests in society, and there is no point in encouraging that too far.

  Mr Porter: I agree with that. It is astonishing how the reputation of human rights, the thing which guarantees us all our freedom, is so denigrated. It is one of the most astonishing turn of events in these last ten years. You can blame the papers—I get large numbers of emails when I write a column and you get some of this in the emails and it is fascinating to respond to them and say, "Why do you think this" and just go through the motions of explaining it. I do believe in consultation. I was at a dinner in Hay-on-Wye at the book festival, the literary festival, last year, and the dinner was set up by the Guardian to discuss human rights and the Bill of Rights particularly, and in that room were a number of very distinguished people—Lord Bingham, Sir Martin Rees, the Astronomer Royal, Simon Schama, the historian, the head of the British Museum, and so forth, and I was very struck by how at 1 o'clock in the morning there was a really fascinating discussion of what should be in a Bill of Rights. If you put a group of individuals like that together to form some kind of proposal you can then push it out to the public—and I would include in that group lawyers as well as scientists and writers, scientists particularly who understand where we may be going. I certainly do believe in, first of all, educating people about the possibilities, what might be in a Bill of Rights, before you ask them for their opinion, so you have something to which they can react.

  Q279  Mr Sharma: What sort of body should be established to consider the range of options and make recommendations to the Government and Parliament?

  Mr Clarke: A Select Committee is not a bad start! I would not set up a special body. In recent years everybody has been very fond of setting up expert studies and having reports as a basis for government policy, the present Prime Minister is very fond of that method of proceeding but although he has had some very distinguished people advising him I have always had a strong suspicion that the conclusions they supposedly reached were pretty well determined before the process started. In practice I do not think any Government will completely let loose control in the end of the first draft at least of anything which gets canvassed, but I think they should listen to Select Committees and indeed groups of people at 1 o'clock in the morning at book festivals wherever they are.

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