Joint Committee on Human Rights Minutes of Evidence

Examination of Witnesses (Questions 460-479)


21 MAY 2008

  Q460  Chairman: Can you enforce it?

  Mr Straw: They are indeed enforced. I had the right to clean air by people living around a bone works very actively enforced because they were being poisoned by the pollution from this bone works in the middle of Blackburn. It is how you enforce it that is the question. Environmental rights are slightly different in terms of conception. I am not ruling these things out. They are not currently under active consideration but you may well come up with a better answer than we put forward.

  Q461  John Austin: I do not want to go into the whole area on the policy of failed asylum seekers but if you have whether it is the right not to be destitute or the right of access to health treatment, if that is linked in some way to a qualified process or a responsibility, then you have denied the absolute right.

  Mr Straw: Some of these rights are in any event. You cannot just claim rights for schooling because you land up in the country. We lean over backwards in respect of children, but in rights to healthcare the British taxpayer rather objects to health tourism which arises because we do not have an insurance-based system in this country and we have taken active steps to deal with it. It does not mean that healthcare is confined only to British citizens. Most of my constituents earn a lot less money than I do. I do not see why they should have to pay for healthcare which should be properly the responsibility of the individual or their own country.

  Q462  John Austin: We are not referring to elective healthcare; we are talking about people being destitute or starving.

  Mr Straw: No asylum seeker or anybody else is denied emergency care in this country. To my certain knowledge, and no doubt to yours, the range of healthcare that asylum seekers need is no different from anybody else's. That runs into the separate issue of ethical responsibilities of the medical profession because they would never leave somebody destitute just because they did not have a passport or something.

  Q463  Lord Bowness: I do not seek to disagree with what you have said, but you said in answer to the Chairman's question about destitute people well of course there have to be some exceptions and you referred to the lady who asked you for some money and you have talked about the maintenance of the sovereignty of Parliament with which personally I would agree. I am trying to see how all this works when you produced your Bill of Rights. If it is going to have any resonance with people it cannot be qualified at every turn. In fact, if there have got to be exceptions, and I suggest you are probably right, and if you are going to maintain the sovereignty of Parliament, are you not just making some sort of broad assumptions of the kind of things that would be in a Bill of Rights? Are you not every time you have a Bill that deals with immigration, asylum, the police, the armed forces, you are going to have to have something in the act which exempts certain bits and pieces of it from what will presumably be broad statements in the Bill of Rights?

  Mr Straw: I do not think so. I draw on the parallel of the Human Rights Act. A lot of these issues came up when we were preparing the Human Rights Act. There was this question of bills coming through the system which may or may not be consistent with Convention rights. I had a lot to do with the Bill but the basic architecture of the Bill, particularly what became Section 4, to achieve this very elegant and important balance between the courts and the sovereignty and Parliament was not mine. It was the First Parliamentary Counsel and the officials but I do claim credit for what became Section 19. Under Section 19 the minister responsible for a bill does not have to certify that the bill is consistent with the Human Rights Act but he has to say whether or not it is consistent and it means there is a proper process of examination. I once signed a certificate to say it was not. I cannot remember what it was about now but it was not consistent, or at least I did not think it was. We are not under a kind of international obligation to the bill to the extent that the British Bill of Rights and Responsibilities adds to the Convention or is in different areas, but there may be a case for saying we extend Section 19. When ministers bring forward legislation it would be handy if Parliament could be informed whether in the judgment of the Minister it is consistent with what is there or not. It is then for Parliament to decide whether to legislate but useful to know on one side or another where the minister sits. Michael and I have been doing this exercise now for a long time and we are conscious of the risk of parody here just to the degree that the Human Rights Act can be turned, and was by some people who asked what on earth are we doing this for. We will not be able to finally win the argument until it has happened. We are very anxious indeed that there is substance here but not substance in a way that breaks open key tenets of our British constitution, like the sovereignty of Parliament or the right of the executive to make proposals to Parliament about resource allocation. I think we can, as well as not ignoring the importance of aspiration within a legal instrument, we can do something really rather important in terms of building up British people's sense of additional rights to which they are entitled and the responsibilities that go with them.

  Mr Wills: I think what lies behind your question, Lord Bowness, is a perception that somehow we are going to bring in new rights and that will create new challenges and therefore to meet those new challenges we somehow have to neuter the original intention of bringing in the new rights, if I understood you correctly. As we embark on this process there will be all sorts of people who argue from particular perspectives that we do need new rights and it is not necessarily our view. Where we are on much firmer common ground is that when people look at this whole terrain I think most people would agree that we certainly need a new awareness and consciousness of rights and responsibilities and a new understanding of what they will be. I think there is a way of looking at this which would not necessarily bring into play the sorts of concerns that you were raising. The second point I want to raise is that a virtue of this process on which we embark could be to bring greater clarity to the respective roles of the various arms of the constitution. As the Secretary of State has said, we believe that parliamentary sovereignty should be just that. That is the ultimate arbiter of our constitutional arrangements and nothing we propose to do will threaten that if we have anything at all to do with it. That is fundamental. Nevertheless, the courts do take a view on these things. There has been an increase in judicial activism and it could be a virtue of this process that Parliament sets down clearly where it thinks the boundaries are in certain areas in the process of good administration, for example. There are lots of virtues to this process other than in the sort of area that you have been discussing where many people would say there was considerable virtue but others would have considerable concerns as well.

  Q464  Earl of Onslow: I think we really ought to always remember that there is no way that parliamentary sovereignty can ever be enacted against because one parliament says it is rubbish, all that will happen is the Sovereign calls a new parliament which says no it is not rubbish and that goes back to Anglo Saxon times and thank goodness for that. That seems to me a core issue. To go to the destitution point, surely you could get round this one by saying all people should be treated equally? In other words, if you have a social parliamentary tax system which allows people to be destitute, then okay destitution is all right, but because we do not have it and you say people should not be destitute, it therefore comes into the estopping of a government allowing somebody to be destitute unless an act is passed specifically to do it. The more you put in social and economic rights—this is where I know that the Chairman and I do not always agree on this—that is entering straight into policy. It is a policy to have a national health service. One day it may be that we will provide health in a different way and that is for the electorate to decide. You cannot say we will have a national health service because that will be taking away from the sovereignty of Parliament. That is why I feel very cagey about social and economic rights, but I feel very strongly about stopping old bossy boots in the Cabinet. Every Cabinet Minister gets this habit of being a bossy boots; it is in their bones.

  Mr Wills: There are exceptions.

  Mr Straw: You are right but we are not going down this road of having directly enforceable generic rights of equal treatment, for example. That would be a piece of primary legislation of the British Parliament and there is absolutely nothing to stop the British Parliament later from saying—it does this all the time with more prosaic stuff—later we assert that this right which is in the British Bill of Rights and Responsibilities which, after all, is just an ordinary standard act of Parliament, can be modified for these purposes in this way. The reassurance I would give you is that because these rights we are talking about, economic and social rights, are not covered by the Convention or its jurisprudence, the British Parliament has, in practice, as long as we remain in the Convention, freer rein over these things. It can change them if it wants and I, like you, think that a fundamental reason why our democracy for all its warts works and also why people have not had to resort to violent revolution is because this Parliament is sovereign and people can change the government. I say this to people in Blackburn when they may be complaining about the European Convention, if you have a party that stands on a platform and says we are going to come out of the Convention, we are going to renounce our membership of the Council of Europe and we will take our chances about what that means for membership of the European Union, if that is what they have said they are going to do, that is their right.

  Q465  Baroness Stern: In your Memorandum which you sent us you said that the purpose of a Bill of Rights and Responsibilities is "to ensure that the system works better to protect the individual against the powerful", which sounds really good.

  Mr Straw: It is really good, Baroness.

  Q466  Baroness Stern: Who did you have in mind when you talked about "the powerful"?

  Mr Straw: People running public authorities who have power in that area.

  Q467  Baroness Stern: That is a really helpful answer. It is the answer I wanted to take me into where I am going to try and take you next. Do you include the concentrations of private power that now exist in the globalised world?

  Mr Straw: It is a good question.

  Q468  Baroness Stern: I did not write it. It is a very good question.

  Mr Straw: You obviously have good clerks. There are certain rights in the Human Rights Act which relate to the exercise of these rights by public authorities. This Committee, and indeed the Government, would wish to see that where they are exercised by individuals or private corporations they are nonetheless subject to the Human Rights Act. That runs into the whole area of YL. It is not the purpose of this Act to impose particular rights and responsibilities to deliver directly on private individuals or corporations because it has implications. However over-weaning a large private multinational X may be, they do not have the power of the State, especially not big states like the United Kingdom. They are also of course the subject of the domestic law in which they find themselves and also all sorts of international instruments.

  Q469  Baroness Stern: In this Memorandum you talk about citizens having "mutual obligations" and you refer to the Bill of Rights and Responsibilities and you have already said this today "giving people a clearer idea of what we can expect, not only from the State, but from each other." You liken this to the notion of "horizontality" which is recognised in the South African constitution. Would you think that a British Bill of Rights and Responsibilities should follow the South African example by imposing a duty on courts to develop existing private law rights, where possible, to give remedies for breaches of rights committed by private power?

  Mr Wills: I certainly think we are going to learn from the South African constitution in this process without any doubt. We need to focus on where these rights are located and they are primarily for the individual against the State. There are all sorts of other problems about the concentrations of power in our society but we do have other remedies for it. The state is not powerless and Parliament is not powerless against these concentrations of power and we act all the time in all kinds of ways to do just things. We protect agency workers, for example, against some of the great forces of globalisation which can be very destabilising, just to take one current contemporary example, but this primarily has to focus on the protection of the individual against the State. That is fundamental. Where you may be going with this is about definitions of how we should define the scope of the State because as public services are contracted out there is a question about the definition of public authority. I do not want to pre-empt you but I do not know if that is where you were going?

  Q470  Baroness Stern: I was about to move in that direction to say that there is this issue of the YL case and public services provided by private providers. Tomorrow we shall make a little progress on that when the amendment is put forward on the care homes in the Health and Social Care Bill, but that is only about care homes. It leaves the larger issue untouched. I understand that the larger issue is going to be part of the consultation you are having on the British Bill of Rights. How do you justify putting that in with this broader consultation about a new Bill of Rights when I understand that it was always the intention that the Human Rights Act should cover public services provided by a private provider?

  Mr Wills: That to my understanding was the intention of Parliament and the Government at the time. You will recall when I last appeared in front of this Committee in an informal circumstance that I did undertake, and as you know at that meeting there was a great deal of anxiety about the effect of the YL case. We have always made it clear that we share that concern and we wanted to find a way to put this right. There was a very widespread sentiment at that meeting that, rather than get it perfect, rather than try and deal with all the complexities of what it means to be a public authority, which I will come back to in a moment, that we should get on with it, we should not delay and I recall that I did give an undertaking saying that if we could find a workable solution that could be brought forward within a proper legislative framework quickly we would do so and that is precisely what we have done. We have moved with great speed. It was not very long ago that I appeared in front of you and we have an amendment with a great deal of trouble and extraordinarily good work by the Ministry of Justice and also the Department of Health. They have done a huge amount of work trying to resolve very problematic issues and have come up with something that we believe is workable which, as you rightly say, is very narrow in scope, it deals with a very specific problem and we think it will deal with it and we brought it forward with great despatch—that is what we said we would do and we have done it. We also accept that there is a wider issue and what the YL case has thrown up is a wider issue to do with the definition of "public authority". It is not easy to resolve. Everyone wants to resolve it. There is no issue between us on where we want to end up. We want to end up at a proper definition which covers contracted-out public services in a way that Parliament originally intended but we must be certain we are not going to end up with unintended and perverse consequences. There are real issues here. We have to take the whole of government with us. The Secretary of State said right at the beginning that we are moving forward on the basis of consensus, rightly and properly with something that is important. This is very important that we do so and we will try and do it with all political parties as well. That is the basis on which we are moving forward across the piste here. Any constitutional change as far as possible ought to be consensual in basis. There are issues around this definition. We want to take it forward in the context of this. We are going to consult on this and what it means and I am sure we will be back in front of you, God willing, to discuss this further. Please do not have any illusion that we do not take this anything other than extremely seriously. We did move with great speed on the particular circumstances of YL and we will continue to move as quickly as we possibly can on the broader issue as well.

  Q471  Chairman: When you were Home Secretary in 2000 you gave a list of the sort of things that you thought were public authorities like housing associations, nursing homes we have been talking about, charities like the NSPCC when they are doing enforcement activity. Our concern is, going back to your original answer to me, that we are not going to row back from the Human Rights Act; that this sort of discussion gets us nervous that what is actually being done is rowing back from the original intention of the Human Rights Act that all these bodies would be covered. There is a formulation that I have put in my Private Member's Bill, which so far does not seem to be getting very far, as to how this can be resolved.

  Mr Straw: Absolutely not. We made a deliberate decision in the Human Rights Act not to do what we did in the Freedom of Information Act, where there is simply a designated list of what is a public authority. You are either in the list or you are not, full stop. It can be amended but that is how it works. For the purpose of this Act it was left at large for I think very sensible reasons that if a body was exercising duties under this Act it was a public authority for these purposes. You have a better memory or better files than I, Mr Chairman, but you are dead right that I said those things and I believed them and I still do. It is a question in the light of the YL case how you go from where you are to where you want to be. In a quite different context, if you have an adverse decision from the most superior court in the land, it is sometimes quite complicated to put the clock back. I just give you the example of Pleural Plaques where there had been settled law for 15 years that Pleural Plaques did itself give rise to cause of action and compensation. It goes to the Law Lords and they decided last October that it does not. You cannot suddenly snap your fingers and say we are going to put the clock back from 17 October last year to the law as people thought it was on 16 October. It is strange but it is true. It is much more complicated than that.

  Q472  Chairman: Pleural Plaques is quite complicated as I remember from my previous life. The formulation that we have come up with in my Bill is to look at factors that go to something being a public authority or not, but in the interim these issues are coming up all the time with legislation going through Parliament, for example, would the Government support the amendment that we are suggesting to the Housing Bill to make housing associations public authorities for the purposes of the Human Rights Act in the same way that we do with care homes in the Health and Social Care Bill?

  Mr Straw: These are questions which are under active consideration at this time. One of the reasons why the chemistry in these decisions changes if you get an adverse judgment is, let's say that everybody had assumed that housing associations were indeed subject to the act and that had been endorsed by the court because we were quite deliberate when we passed this that it would be a matter of decision by the courts on that. If that had happened then housing associations would just have to get on with it. When it appears that the opposite has happened, then government departments get twitchy, they say there will be resource costs and people start from a different status quo. That is the difficulty.

  Q473  Earl of Onslow: My concern is I was approached by the minister and it is my amendment now to the Housing Bill—on my way here I was stopped in the passageway and asked would I go and see the Minister after the recess to discuss this very point. She is going to be armed with 853 civil servants and I will argue my case as to why it should go in, so we will see what happens.

  Mr Straw: Looking at Section 6(3): "A public authority or court of tribunal and (b) any person certain of whose functions are functions of a public nature."

  Q474  Chairman: It is not easy to follow.

  Mr Straw: No, it begged a question; that is the problem. It does not exclude institutions not set up as public bodies with a capital "P".

  Q475  Chairman: How can there be resource implications? If you think something applies and have worked on the basis that it does apply and then you say it does not apply there are no resource implications because you are working on the basis—

  Mr Straw: That is a very good question but I promise you that at the moment there cease to be resource implications but when you try and change it people say there are and to a degree there are; that is the problem.

  Mr Wills: It is not resource implications alone. There are other desirable policy objectives which colleagues in other government departments are concerned about. When this happens, as the Secretary of State says, when we get these decisions clearly people look at it all again. One thing we have got to do is to produce some certainty into this area because what we know from the YL case is that very vulnerable people have been rendered very anxious by the result of this particular court judgment and what we must do is be certain that we are going to produce something that will endure and provide certainty.

  Q476  Chairman: We certainly want to see a comprehensive solution to it all, but more importantly in the interim having all these things going on all the time where you need to pick them off as you go along otherwise they may be left there.

  Mr Straw: I understand that. There are a lot of people around who would prefer that this set of institutions was not subject to the Human Rights Act. When the courts say they are not, they say very good.

  Q477  Earl of Onslow: When you said that colleagues come up with these rabbits out of a hat which have suddenly grown since the YL case, could you tell us what some of these rabbits are and what shape they are? How long are their ears and what colour they are and so forth?

  Mr Wills: I do not think they are rabbits as such out of a hat.

  Q478  Earl of Onslow: They did not exist when they thought the law was what it was before, did they, so suddenly they have grown?

  Mr Wills: They may well have existed. They perhaps were not quite as present in the consciousness of some of our colleagues.

  Q479  Earl of Onslow: What are they? Can you give us an example?

  Mr Wills: If you will take my word that they exist and that they are real animals, we are trying to resolve it as quickly as possible. I would be perfectly happy to come and share some of the problems with you.

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