Examination of Witnesses (Questions 460-479)
THE RT
HON JACK
STRAW MP AND
MR MICHAEL
WILLS MP
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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