Examination of Witnesses (Questions 20-39)
JONATHAN SHAW,
MR RICHARD
TIMM AND
MS SIMMY
VIINIKKA
18 NOVEMBER 2008
Q20 Lord Lester of Herne Hill: What
I do not understandif I mayis that in the Governance
of Britain Green Paper for which the Prime Minister is responsible,
there was a lot about the importance of a more transparent and
democratic system for scrutinising treaties. I do not understand
the fear within Whitehall apparently that if you now come out
with what you are proposing it will affect our rights of course
and the extent to which the rights conferred by the Convention
to be enjoyed by we, the peoplethat is what it is about.
I do not understand why you do not consult "we the people"
about that as well as the devolved administrations in Scotland,
Wales and Northern Ireland. Surely they are the prime people that
you should now be consulting at an early stage?
Jonathan Shaw: We have arrived
at our decision on the interpretations and the reservations through
that discussion with colleagues in those administrations. We have
had discussionsit is not fair to say that we have had no
discussions with disabled people or their organisations; we have
had that, and we have received the advice from the Commission
and the advice from Equality 2025, a body that we have set up
of disabled people to provide us with that advice. It is not fair
to say that we have operated in a silo, divorced of any discussion
with disabled people or their organisations. What I attempted
to do in a candid way is to provide the Committee with the process
that we have gone through in order to arrive at where we have.
It is not fair to characteriser this that we have had no discussion
with disabled people.
Q21 Lord Dubs: There are discussions
going on between Westminster and the devolved administrations
all the time on a whole range of issues.
Jonathan Shaw: there are.
Q22 Lord Dubs: I am not aware that
they are all couched in this secrecy, and quite a few of them
can be done openly. I do not understand the need, otherwise a
lot of our relations with devolved administrations would have
to be altered, would they not?
Jonathan Shaw: I had some experience
of working with devolved administrations in my previous job, and
some of those discussions were below the line in order to develop
joint thinking in order that both sides were happy and to avoid
a public dispute that could then lead to very firm positions,
opposite positions, and then the goals that we seek to achieve
were reduced. So it operates at different levels. I repeat, it
is not reasonable to say or a fair reflection on the way that
we have carried out this process to say that we have not had discussions
or sought the advice of disabled people and their organisations.
Q23 Lord Dubs: I think you said a
few minutes ago that you would be ready in the spring to publish.
Jonathan Shaw: Yes.
Q24 Lord Dubs: Would there be an
advantage in publishing in draft what you have in mind now, so
that people, organisations and parliamentarians can all look at
this and consider what it is you are doing rather than simply
producing it at the lat minute when it has all been finalised.
Surely, it would be in keeping with the policy of publishing draft
bills and so on for your reservations to be published in draft
form now?
Mr Timm: We hope to publish an
explanatory memorandum, which will provide an opportunity for
each of the departments to give their detailed reasoning as to
why we want the interpretations or the reservations ahead of parliamentary
scrutiny, Lord Dubs.
Q25 Chairman: Presumably you are
only going to publish an explanatory note at the same time you
publish the ratification?
Jonathan Shaw: That would be my
understanding.
Q26 Chairman: To come back to Lord
Dubs's question, why can you notif, like we do for all
sortsthe Home Office can publish the Immigration Bill in
draft in advance, why can you not publish your reservations in
advance so that people can think about it beforehand?
Jonathan Shaw: These reservations
are where government departments have arrived at through this
process and they will be subject to parliamentary scrutiny with
a detailed explanatory memorandum, but I will reflect on the point
that you have made, Chairman.
Q27 Lord Lester of Herne Hill: Is
that what you mean when you say, "subject to parliamentary
scrutiny"? Parliament has no power, does it? It is not like
a bill.
Jonathan Shaw: No.
Q28 Lord Lester of Herne Hill: If
you, in exercising your prerogative powers, decide on the terms
of ratification and reservations and so on, all that Parliament
can do is to express its views, but you have in the end absolute
power. Is that not therefore why we need to know what you are
considering at an early stage to try to persuade you that some
of what you are thinking might be altered?
Jonathan Shaw: Hopefully that
is part of this process, Lord Lester, and obviously we will come
on to discussing the few reservations and the interpretation that
there is. Obviously, I will have to justify the Government's position,
and there is a whole series of committee stages that we will go
through.
Q29 Lord Morris of Handsworth: I
have a general observation from what you have said The Committee,
and indeed those with disability who would benefit from ratification,
will draw some conclusion; and from what you have said you are
leaving a conclusion behind that it is either lack of commitment
on the part of the Government or lack of leadership. Which is
it?
Jonathan Shaw: I do not think
that is fair at all, Lord Morris. I refer to a number of the practical
steps that this government has undertaken to improve the lives
of disabled people, and we have also set out our ambition of equality
for disabled people into the future. Signing the Convention we
take extremely seriously, and when you look at the various articles
and measure that against the policies and the commitment and the
money ...
Q30 Lord Morris of Handsworth: What
is important today is not so much what you fail to have done in
the past but those with disability and the Commission will be
interested in the future, the commitments that you can offer as
to what you will now do and the Department will do as of today's
hearing.
Jonathan Shaw: As I keep saying,
I am happy to hold my hand up, and where we haveyou say
"failed"and perhaps we have not achieved what
we might want to in certain aspects of policy, but I think we
have achieved a great deal, not least employment levels, which
are a 10% increase under this Government with programmes such
as Access to Work and Pathways to Work, under which many hundreds
of millions of pounds are put into. That is a statement of our
commitment. There are further resources now and going forward
into the future, as you said.
Q31 Mr Timpson: Can I just pick up
on the time when you say ratification will take place and try
to understand a bit more about trying to get some transparency
into the reasons why we have to wait even longer than we originally
anticipated! You have spoken about trying to put together advice
and also having discussions, and I see those as two very different
thingsseeking advice from people and having discussions
with people. When you spoke about advice and told us about the
Commission and Equality 2025, are you still seeking advice, or
have you sought advice? Have you had further meetings to seek
advice? Where are you, so we understand why we have this further
delay?
Jonathan Shaw: The delay is because
we had those detailed discussions with colleagues across departments
and devolved administrations, and we have been working through
areas of policy. My predecessor, Anne McGuire, worked tremendously
hard and was absolutely committed to this Convention and signalled
to the Committee in her letter in May that there were areas where
we might seek reservations on cultural services, for example,
and independent living as another example. I am pleased to say
that we have worked through those and there are not reservations
on that, so that is an example of some of the work that we are
undertaking. We want to see as few reservations as possible, and
so that is why we have been getting on with that job. We seek
the advice of the Commission, and we appreciate that advice in
order to inform our discussions with other Government departments
and the devolved administrations. Of course, Equality 2025 that
we have set up, made up of disabled people, provides advice for
other Government departments as well, and they are cross-cutting
organisation that we have set up. So we receive advice and have
discussions about that advice and consider it before we reach
a decision. Ultimately it is for Ministers to make decisions.
Q32 Mr Timpson: As we sit here today,
are you at the stage where you are starting to write up this memorandum,
and are you at the stage of writing up your draft, or are you
still having discussions and seeking advice?
Jonathan Shaw: The final domestic
affairs rights round needs to be undertaken, so there is some
process within Government for things to be absolutely final. Of
course, any views that we are seeking between now and then we
will obviously take account of. I go back to the point that it
is not fair or reasonable to say that we have not received advice
or had discussions with disabled people or their organisations.
Q33 John Austin: I apologise for
being late. I accept what you say. I think enormous progress has
been made on issues of equal rights and particularly on the disabilities
issue. I think all of us round this table share your view that
we want to see no reservations, but as few reservations as possible,
but you appear to be on the defensive and you talk about the discussions
with other departments and I recognise that other departments
may have particular issues on particular subjects, but it would
be much to your benefit and the Government's benefit if those
discussions were much more open, if the people sitting behind
you knew the precise nature of the difficulties that some of the
departments have on some of the aspects, and what those reservations
are, and if there was much more open debate. It does appear that
we cannot have that open debate.
Jonathan Shaw: I can see why you
are saying that I am on the defensive, because I am being accused
of certain things, so I have to defend my position as I see it.
Q34 Chairman: Do not take it personally.
Jonathan Shaw: No, I am not taking
it personally; it is a very important point, and I am enjoying
the debate because this is an issue of such magnitude, one that
I take seriously, and I enjoy it because I am proud to be the
post-holder that will seek to ratify at this Convention. When
I said to Mr Timpson, Mr Austin, that there were examples of where
we flagged to the Committeethe Committee has that material
and we have had an exchange of correspondence, or my predecessor
didthat cultural and independent living would be areas
that we would seek reservations on. So I am not defensive in saying
we have worked through those. We have achieved your aspiration
to have no reservations, and ours, to have as few as possible,
so we have worked on that. so rather than perhaps being defensive
I should be proud of our achievementand indeed I am.
Q35 Mr Sharma: Mr Shaw, what steps
have you or your predecessor taken to try to persuade individual
departments that reservation or imperative declaration may not
be necessary?
Jonathan Shaw: Yes, well I think
it is an important point that we emphasised. We have had discussions
and I am not averse, and certainly my predecessor would not have
been averse, to twisting a few arms when necessary, but we would
not twist arms in public; we would have those discussions with
colleagues in private. We would not have these disagreements in
public because that is not the way that collective Government
does its business. We have sought to provide advice through the
Office of Disability Issues and the excellent work of Equality
2025 to other departments, and we have seen the elimination of
cultural services and that of independent living; but in that
work, as I said in my opening statement, what it has done is thrown
up the issue of benefits appointees and power of attorney. It
has not worked all one way.
Q36 Mr Sharma: Can you explain why
the Home Office are pressing for reservations or based on their
existing immigration reservation to the Convention for the Rights
of the Child (a reservation which the Home office has already
agreed to remove)?
Jonathan Shaw: Yes, they have
agreed to it, and I think the Home Office would not say that their
desire to have a reservation is related to that of the Convention
for Children. It is essentially about immigration and particularly
public health, where the Home Office may wish to screen individuals
entering the country, or they may wish to do it in the future.
That is something that I think all Member States would seek to
want to do. I believe that all Member States have the power to
impound an aeroplane, for example, if they had a concern about
the passengers' public health. Obviously, that has to become a
paramount issue; you could not have people getting off the plane
who had a particular disease that is going to cause the general
population to be affected.
Q37 Dr Harris: That is a slightly
different issue from screening because there is clearly a threat
to public health in that case; whereas screening, for example
for TBthere is not a shred of published evidencethere
may be some secret evidence of coursebut there is no published
evidence that screening programmes offer any protection to the
public health, and therefore it would not be motivated by public
health but for other reasons. Are you saying that the Home Office
is seeking room for manoeuvre to bring in screening arrangements
that are not related to protection of public health on a clearly
proportionate level, because you look at the evidence when you
look at proportionality, do you not?
Jonathan Shaw: I am sure that
the intention of the Home Office will be to have a proportionate
level. Their policy will be proportionate and it will be for a
public health interest. When we publish the explanatory memorandum,
the Home Office department will be able to provide the detail.
Q38 Dr Harris: But you could reassure
the Home Office, could you not, that they do not need a reservation
if it is to take action that is to protect public health and is
proportionate? As you say, all companies would need to do that
with SARS, for example; they would not need a reservation.
Jonathan Shaw: It is about what
the Home Office may wish to do in events unforeseen in the future.
As I say, they will be able to explain in detail their reservation
when we publish the explanatory memorandum. It is for departments
to determine, just in the same way it is for devolved administrations
to determine whether or not they have reservations. It is the
job of my Department and my officials to provide advice and discussion
about areas where they might want reservations; but, as I say,
the Home Secretary has made clear to us that that is where she
wishes to have a reservation.
Q39 Chairman: This is pretty unsatisfactory,
is it not, because what is going to happen is that you have discussed
this behind closed doors with the Home Secretary? The Home Secretary
has come to the conclusion she wants a reservation. No matter
how unreasonable the reservation may appear to the outside world,
if it were consulted and put its views forward, you accept what
the Home Secretary says even though you are Minister for Disabilities
and you may not be arguing for this. It is then published as part
of the final document for presentation to Parliament without any
opportunity for amendment, discussion, or debate, as to whether
or not the reservation is justified, or in particular that it
could be removed. This comes back to our earlier line of questioning.
Is it not better for that reservation to be published in draft
first so that there can be discussions as to whether in fact it
is justified? Evan Harris has just given you an example of why
that particular one, frankly, is wrong because it would apply
to every single thing that could be ratified because you have
the same powers. Would it not be more sensible to publish it in
draft form first to enable those discussions to take place with
civil society and the NGOs and indeed with relevant parliamentarians
before presenting the final document on a take-it-or-leave-it
basis because when it does come as you are proposing so far, it
is a "take it or leave it" document, no matter how unreasonable
under detailed scrutiny it turns out to be, or how reasonable
it may be?
Jonathan Shaw: As I said earlier,
I will reflect on that advice from you, Chairman. The Home Office
have said that they firmly support the objectives of the Convention,
but they wish to avoid any possibility of there being a conflict
now or in the future between measures that might need to regulate
entry into the UK in the interests of protecting public health
on the one hand and our international obligations on the other.
That is the only reason they are entering this reservation.
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