Examination of Witnesses (Questions 1-81)|
MP AND MR
20 JANUARY 2009
Q1 Chairman: Good afternoon everybody,
and welcome to this public session of the Joint Select Committee
on Human Rights. The purpose of this session is to follow up on
our report on a Bill of Rights and Freedoms for the United Kingdom
and the Government's reply, and it is also our annual oral evidence
session with the Minister of Justice and Human Rights Minister.
We are pleased that we are joined by the Secretary of State for
Justice, Jack Straw MP, and Michael Wills MP, the Human Rights
Minister at the Ministry of Justice. Welcome to you both. Does
anyone want to make an opening statement or shall we get straight
Mr Straw: Except
to say that I am delighted to be here, why do we not go straight
Q2 Earl of Onslow: Will you be by
the end of the session?
Mr Straw: I always am, my Lord!
Q3 Chairman: I do not think it will
come as any surprise to you, Jack, that we would like to ask you
some questions about what you wrote in the Daily Mail and
what you meant by that. The Daily Mail suggested that you
were making a coded attack on the judiciary for the way they have
interpreted the Human Rights Act, and they described you as "one
of Westminster's most wily operators" and "the master
of the discreet stiletto". Is the Daily Mail correct
in interpreting your remarks about "frustration" in
the justiciary as a challenge to the judges or to the practical
consequences of the Act?
Mr Straw: Let me say the Daily
Mail article was entirely accurate in the way in which it
quoted me, just so we are clear. What I was seeking to do in this
article was to bring a better balance and understanding as to
why we had embarked on the Human Rights Act, what its benefits
had been and continue to be, but at the same time to acknowledge
the way in which in some people's eyes the Human Rights Act had
been held up, as I said in the article, as "a villain's charter",
and to get a wider hearing for the case for human rights linked
with responsibilities, which I am sure, Chairman, you will want
to come on to. I have religiously avoided, in your terms, "attacking"
judges and I do not regard what I said in this article at all
as an attack on the judiciary; far from it. Aside from the fact
that I took not one but three oaths when I became Lord Chancellor,
which I swore before the Lord Chief Justice, about respect for
the judiciary and, as it were, protector of their independence,
I happen to feel very strongly that there should be a mutual respect
between these separate and distinct arms of the state: the executive,
the legislature and the judiciary. I make the point that where
there is a connection in terms of ministerial responsibility that
is through me, but, as I say, I take my responsibilities very
seriously. That said I know that I saw in the letter from you
that you had picked up my comment that some courts will be "too
nervous" in respect, for example, of deportation of deportees
(I did not go into this in detail) with assurances. I think that
one can respectfully disagree with some of the specific decisions
without going into the detailed cases, and that is what I did
in that article. I also just remind colleagues here, if I may,
that I said in the article, and the Daily Mail was faithful
to what I said, that: "He is quick to defend what is arguably
one of the most far-reachingand many would say damaging
(according to the Daily Mail)pieces of legislation
introduced by Labour. He argues that the Act has suffered unduly
in the public's perception in the aftermath of 9/11 as Islamist
militants have used it with great success to avoid deportation.
It is an `Aunt Sally' often blamed unfairly for problems which
are in fact caused by other laws and judgmentsquite a few
of which he conveniently dates back to the Tories ..." but
I also, as I recall, expanded in that part of the conversation
on the fact that the principal difficulties with which the courts
have to wrestle, but not the only difficulties, in respect of
deportation with assurances go back not to the Human Rights Act
but to decisions of the Strasbourg Court from and including Chahal
which pre-dated this Government and pre-dated the coming into
force of the Human Rights Act by four years.
Q4 Chairman: Just to pick up that
point about removal of terror suspects to places of origin or
wherever, you put forward on behalf of the Government as an intervener
in Saadi this position and the European Court of Human
Rights threw those arguments out, so what did you hope to achieve
by raising that point?
Mr Straw: The very fact that the
British Government, with some other governments, took that case
to the European Court indicates that we have a disagreement with
the Strasbourg Court about the efficacy of deportation with assurances
and where the balance should lie. Let me just say this: no British
Home Secretary, and I have been a British Home Secretary, would
ever knowingly or negligently seek to deport somebody who was
at a risk of torture or death or inhuman treatment, and if the
Human Rights Act did not exist and the Strasbourg Convention had
never been ratified by us, that would still be the case, and were
a Home Secretary to get into that positionand I do not
think one wouldthen their survival before the House of
Commons and, as it were, the court of public opinion, would be
very short-lived. I think everybody has to recognise, including
those who strongly support the Human Rights Act, as do I, that
there is an issue of balance here and how we deal with people
who may have committed very serious offences within the jurisdiction
or overseas citizens whose presence here was not acceptable, how
we deal with those cases within the overall framework of not sending
people back to torture or death is a very difficult one. The argument
is not should you, as it were, override the purpose of, say, Article
3, but where does the balance lie.
Q5 Chairman: You talk about people
having committed serious offences. Presumably the way to deal
with those is to prosecute them, so the ones you are left with
are those whom you cannot prosecute because the evidence is either
inadmissible or inadequate to prove a case against them.
Mr Straw: You are also left with
what happens to them when they come out of prison and the same
Q6 Chairman: Going to the point you
made about torture, the Prime Minister in his speech to the Equality
and Human Rights Commission on the 60th anniversary of the Universal
Declarationand I think you have just agreed with thisin
talking about human rights said that "the prohibition against
torture was absolute".
Mr Straw: Of course.
Q7 Chairman: If that is the case
and we believe in the absolute prohibition where is the balance
that comes out of this because if it is an absolute commitment
then there is no balancing to be done?
Mr Straw: There is a balancing
not of whether there should be an absolute prohibition to people's
submission to torture or death; the difficult judgments arise
over whether such a risk is there in respect of sending back an
individual to a particular country. That is where the judgment
lies, or the balance if you like, which is about future risk,
and I think there is scope for a perfectly reasonable difference
of view between, say, that which has been taken by the British
Government (and a number of other governments; we are far from
alone in that) and for example the European Court.
Q8 Chairman: But if there are two
views is that not in itself an indication that there is a risk
that there could be torture. If a judge looking at a memorandum
of understanding as against a country's history in relation to
torture and comes to the conclusion that there is a risk, and
the Government comes to a different conclusion, the fact that
there are two possible views must in itself mean that there is
a risk of infringing the absolute prohibition against torture.
Mr Straw: I do not accept that
argument at all. I think it depends on the strength of the views.
I recall a similar but slightly different point in the case of
the issue of the deportation of Rachid Ramda to France. He was
the man accused of the bombings on the Paris Metro in 1995, and
he was held here on an extradition warrant for 10 years before
he was finally removed to France. The view that I took, and ultimately
the British courts took (but it took a very long time) was that
it was entirely safe to send him back to France, but there were
certainly two views about that. In the end we managed to persuade
the courts that the view that was taken on behalf of Ramda was
not a substantial one. On plenty of issues you have two views
and you then have to weigh up the strength of those views. Can
I just say this: as I said at the beginning, I happen to believe,
and I have made this clear in the Daily Mail, that the
Human Rights Act is an important piece of legislation. Query how
it will be seen in the future but I think it will be seen as one
of the most abiding pieces of legislation of this Labour administration
to date. I think it has produced many benefits, but it is also
the case that I am concerned, and I think many Members of Parliament
on all sides are, about the less than good press it has received,
particularly since 9/11. The purpose of my article was to try
and say to people (because you have got to do thisyou cannot
just get yourself into an intellectual ghetto), to say to very
well-meaning people, yes, we understand those concerns and then
perhaps to get people to go on from there to recognise that there
are benefits and it is not quite such a villain's charter, but
that is how it is perceived. If I may just make this point. I
claimed that people do not tend to notice when the Human Rights
Act actually does good in helping to defend individuals from unacceptable
abuse. I just give you one example, although one could query whether
it is unacceptable abuse: it passed with remarkably little comment
that the Daily Telegraph, which has not been right in the
forefront of defending the Human Rights Act, has as its owners
the Barclay brothers who have sought to take on a judicial review
in respect of my handling of my responsibilities and Michael's
in respect of the Channel Islands. When it went before the Court
of Appeal they won on one key point and lost on some others, and
I accepted that, but that was quite an interesting example of
entirely law-abiding people who may have been sceptical about
the Act making rather good use of it.
Q9 Chairman: Do you yourself think
that the Human Rights Act is a villain's charter?
Mr Straw: No, of course I do not,
and I did not say that.
Q10 Chairman: That is why I was putting
it to you because sometimes when people use the formulation "people
think ... they often mean themselves.
Mr Straw: Chairman, what is really
important here, and it comes on to what we are seeking to do in
respect of responsibilities, is to recognise that this Act has
not achieved the affection which I hoped for it. I would suggest
that the reason for that is because it was subject to a premature
and hard test because of what happened on 9/11.
Q11 Chairman: So the Daily Mail
article was an attempt at myth-busting?
Mr Straw: Yes it was, but it was
also an attempt to reach out to people. I am unapologetic about
the fact that I gave the interview and I have no criticism of
the way it was written up because we are all grown-ups here. If
we are concerned to extend a debate we have got to pick up where
people are. There is no point beating up on people because they
happen to believe it is a villain's charter or they have read
one decision which appeared to be slightly questionable and for
which the Human Rights Act was being blamed, as I say often and
in most cases unfairly. What you need to do if you are going to
have a debate with people is say, "Yes but ..." and
that was what I was seeking to do.
Q12 Chairman: I have several people
itching to come in but one last question from me about myth-busting
because we had your predecessor Lord Falconer here and we went
into a lot of detail with him about myth-busting, and we had our
own report on it and there was a report from the Department on
it, and very little actually seems to have come out the other
end. Can I put one particular case to you which Lord Falconer
was widely quoted on, but I do not recall reading anything from
you about it, and that was the attack by Paul Dacre when he called
the Human Rights Act "wretched" and made a vitriolic
attack on the judge for the particular way he interpreted it in
that context to do with the right to privacy. What did the MoJ
do to respond to Paul Dacre's speech?
Mr Straw: I do not think we issued
a press notice about that and we tend not to get involved in a
running commentary on disputes between one party and another to
court actions, otherwise there would be no end to it. I also said
in this article, and it is quoted and I had a very straightforward
conversation about that, that I recognise some of the concerns
about these judgmentsand they called it a libel judgment
but it was a judgment in respect of privacyand I suggested
that the time had come for a select committee of MPs to study
the issue. I understand that is exactly what is going to happen.
Q13 Chairman: But in your own response
to our Bill of Rights Report you said: "As part of the Government's
Human Rights Programme, the Ministry of Justice has led an initiative
to improve the capability of government departments to respond
to inaccurate or misleading media coverage ..." effectively
saying you were going to respond to misleading stories.
Mr Straw: You cannot respond to
Q14 Chairman: It was quite a big,
Mr Straw: It may be a big, well
publicised one but I am afraid I rest on the answer that I have
Q15 Dr Harris: You are quoted in
the Daily Mail as saying: "Jack Straw: `We will get
tough on human rights do-gooders.'" I put it to you would
it not be better to get tough on human rights do-badders, and
who did you have in mind, present company excepted?
Mr Straw: That is not a direct
Q16 Dr Harris: Are you saying that
was a misreport?
Mr Straw: It is not a misreport.
I would not suggest for a second that the Daily Mail had
misreported me. Where they quoted me they have quoted me accurately
and if you give an interview to the Daily Mail you expect
a certain amount of editorial comment within the piece, so I have
no criticism whatsoever of the interview because I think that
overall it gave a very fair flavour to what I was seeking to sayto
repeat myself, Dr Harriswhich was to recognise that there
are criticisms of the way in which the Act is implemented but
also very strongly to defend the Act itself.
Q17 Dr Harris: I do not want you
to repeat yourself. I am just interested who these do-gooders
are who you want to get tough on. Do you mean the judges? Wethe
Government I presumewill get tough on the judges?
Mr Straw: As I say, that was their
summary of where they thought I was. It was neither a direct nor
an indirect quotation.
Q18 Dr Harris: What do you think
they meant, the human rights industry, this army of lawyers?
Mr Straw: I was separately critical
of some of the claims industry, and I think that most Members
of Parliament are critical of the claims industry and the way
in which people's rights of action are sometimes abused and sometimes
these are wrapped in together. The legal professionand
this is in one sense above and beyond concerns about the Human
Rights Acthave got to be very careful in ensuring that
the kind of abuses which we have recently seen brought out before
the Solicitors Regulation Authority are dealt with not only by
the statutory authorities but also by the profession directly
through regulation and also culturally as well.
Q19 Lord Lester of Herne Hill: As
you know, I am in the unusual position of asking questions as
a poacher who has become a gamekeeper again!
Mr Straw: I think rather gamekeeper
who has become a poacher, if I may put it that way.
Q20 Lord Lester of Herne Hill: It
depends on how you perceive it. As you know, or do not know, like
Mr Justice Eady I was privileged to be attacked by the Daily
Mail, which I rejoice in personally, just after your interview.
Mr Dacre, and others like him in the tabloids and other sections
of the press, is worried about the Human Rights Act developing
into an enforceable right to personal privacy which means that
he and others could not trade in the kind of gossip and media
intrusions that perhaps they would like to. Your article gave
him the impression, it is pretty clear from his editorial, that
you would like to weaken the Human Rights Act, or tighten it up,
in order to make it less likely that the press would be restrained
when it comes to personal privacy. I do not believe that is your
position, but it is important for you to make clear today that
that is not your position because I think otherwise Mr Dacre might
think, quite wrongly, that what you have in mind is to weaken
the Human Rights Act from the point of view of victims and make
it easier for the press to make unwarranted attacks on personal
privacy. Would you mind clarifying the position on that?
Mr Straw: As you know, Lord Lester,
a good deal of the law of privacy had developed before the Human
Rights Act and it is based on a development of the law of confidentiality,
which is now informed by the Human Rights Act, but that is the
foundation of it. So far as this particular judgment, the Max
Mosley one I think, and I am having to choose my words with
care hereand I will mention what the note I have been passed
says in a secondI make no comment at all about the decision
to which the court came, but the behaviour which was the subject
of debate was something which I think most people would be very
Q21 Lord Lester of Herne Hill: I
was not asking you about that; I was asking about whether it was
your intention to seek to weaken the Human Rights Act in that
respect or not?
Mr Straw: What my intention is,
which is now actually happening, is that there should be a select
committee of MPs to look at the law on privacy. Legal systems
in common law countries above all are living systems. Sometimes
they require a nudge one way or the other by statute. There is
nothing wrong with that. We did that very recently following the
Davis judgment about the admissibility of anonymised evidence.
The Law Lords overwhelmingly on the basis of common law rather
than the Human Rights Act came to one decision and the House of
Commons on a unanimous basis decided to come to an opposite one.
None of these things is set in concrete and I repeat the point
that those of us, of whom there are two of us here, who are keen
to ensure that the legacy of the Human Rights Act continues and
thrives need to be alive to criticism and to respond to that criticism.
I am sorry, I do not always agree with Mr Dacre, still less he
with me famously, but I do not take your view about him or his
newspaper. It is a serious newspaper and it happens to represent
a large body of public opinion in this country. Whether you agree
with it or not is neither here nor there. It would be ridiculous
not to take note of that and then try to seek to respond to it.
Q22 Earl of Onslow: Secretary of
State, in your article it said: "He is `frustrated' by some
of the judgments which have encouraged voters to conclude that
the Act is `a villain's charter' which favours the rights of criminals
over those of victims". You said when you came in that you
stood by every single quote that you made, which seems perfectly
Mr Straw: Sorry?
Q23 Earl of Onslow: You said that
you stood by every single quote. Does that sentence in that article
mean that they have taken those quotes out of context because
it seems to me completely clear what you are saying, and I read
it absolutely accurately?
Mr Straw: I said at the beginning,
Lord Onslow, that I did not resile from what I was quoted as having
said. I did not at the time and I have not subsequently. I have
set out the reasons why I gave the interview.
Q24 Earl of Onslow: That sounds to
me an absolutely bog-standard "letter from Lord Rothermere
congratulating you on your views" line.
Mr Straw: That is your view; it
is not mine.
Q25 Earl of Onslow: It says it there
in black and white.
Mr Straw: Your Committee, Lord
Onslow, has already made some observations about this article,
which I must say I think the Daily Mail will be really
pleased that it has got this much attention but, equally, you
might like to draw your own attention to where I came to the key
point about the interview, which was defending the Act. If I had
come to a different view and had said, "I introduced the
Act but I have changed my mind", I could understand people's
concern, but at the risk, indeed the certainty, of repeating myself,
I say again I think that it was important to recognise where people
were on the issue and then to seek to respond to them. Could I
just say that Mr Wills had a point that he wanted to make in respect
of data protection measures and privacy.
Mr Wills: Just to reassure Lord
Lester in response to your concerns about the right to privacy,
as the Justice Secretary has said, there is a balance to be struck
here. We have made pretty clear how we want to strike the balance.
You will be aware of the original Human Rights Act, section 12,
which suggests that the courts have a particular regard to freedom
of expression, so that is one side of the equation. The other
side is of course we understand concerns about privacy, and that
is why we introduced measures to tighten up data protection and
penalties for misuse of data. I hope that will give you some reassurance.
Q26 Lord Lester of Herne Hill: I
do not need any reassurance. What I am anxious is that Mr Dacre
is under no misapprehension, as I think he is at the moment, and
I am glad you have corrected the position.
Mr Wills: He is also aware of
Q27 Dr Harris: Part of the role of
the Lord Chancellor in relation to the judiciary is set out as
"ensuring that the judiciary is supported in undertaking
its function to deliver justice independently". That is from
your Government's Court Service Framework Document from within
the last 12 months. Clearly the serious part of this article was
you criticising judges in the broad if you like for their decisions.
Are you now going to write to yourself in support of the judges
and tell yourself not to undermine them in this way? There are
other bully boys in government who can play that role but you
are the Lord Chancellor.
Mr Straw: This administration
as a whole, particularly since Gordon Brown became Prime Minister,
has been extremely careful about not criticising judges. I said
right at the beginning that I took the three oaths that I made
about protecting the judiciary very seriously indeed, and I have
followed those through. That does not mean that on an issue of
very great public interest that you are not sometimes entitled
to express a difference of emphasis. I do not take that as criticism.
If you take something which I know was picked up in your first
report where I was talking about the "nervousness" of
judges, that was not intended as a pejorative statement. You will
recall, Chairman, Dr Harris, that this was my point in longhand,
that the courtsand there is a lot of authority on thisput
themselves to what they have described as "particularly anxious
scrutiny" where there is an issue of returning a potential
deportee to a country or to a circumstance where they may be at
Q28 Dr Harris: Of torture?
Mr Straw: Yes of course. There
is no argument about whether they should or should not subject
the issue to particularly anxious scrutiny, so indeed does the
Home Office and the Home Secretary of the day. The issue, to return
to my first set of answers, is what judgments are there made and
whether particularly anxious scrutiny may in some cases be over-anxious
Q29 Dr Harris: That is a criticism
of being too nervous.
Mr Straw: It is not a criticism.
If every disagreement is a criticism then discussion becomes absurd.
You can disagree with people without criticising them personally
and have a difference of view from them.
Chairman: I think we have exhausted this
subject and we have a lot of ground to cover so I will bring in
Q30 John Austin: Moving on to the
Bill of Rights, there was a great deal of scepticism as to what
the motivation of the Government is in saying it wanted a Bill
of Rights and whether it is going to strengthen Convention rights
or be a diminution of Convention rights, but the Government has
said that it is enthusiastic about the bringing in of a Bill of
Rights and we have been promised the publication of a Green Paper
which would at least give us some idea of what the Government's
thinking and motivation is. The dates seem to come and go and
I wonder what the cause of the delay is and when we might actually
see the Green Paper?
Mr Straw: Can I first say, Mr
Austin, what we have talked about is a Bill of Rights and Responsibilities.
We have made it clearthe Prime Minister, Mr Wills, myself
and many others, and indeed this report acknowledged that in termsthat
we have no intention of resiling from the Human Rights Act. That
is the first point. In terms of the publication we aim to publish
the Green Paper before Easter. That is the programme to which
we are working. What is the cause of the delay? I saw some slightly
acerbic comments (not criticisms!) by the Chairman in respect
of this and why has it taken some time. It has taken time because
it is new territory and there are three aspects to it. One is
the extent to which a new document should seek to lay out and
encapsulate and summarise rights which citizens have, for example,
in respect of health and education and the environment, but to
do so in a summary form so that they would be part of a single
document. The second issue is the extent to which this document
should bring out responsibilities more clearlyresponsibilities
that we owe to each other and owe to the community. The third
issue is the extent to which all or any part of what would amount
to a new Bill could or should be justiciable. These are really
complicated areas and they are very important. I am struck that
the Netherlands is going through exactly this process just now
and I had a very interesting conversation last Thursday with the
Dutch Minister of the Interior. They have their equivalent to
the Human Rights Act embodied in their constitution and what they
are now raising is what they call a "Charter for Responsible
Citizenship", which tries to introduce a better balance culturally
and maybe legally (but they say it is culturally) into the way
people relate to each other. That is why it has taken some time.
If you are anxious about our direction of thinking, Mr Wills has
made a number of speeches about it and I have given three lectures
about it. I think the Committee has had them but if it has not
I am very happy to circulate them, they are quite big lectures
too in which I have tried to develop that thinking.
Chairman: We will come back to the issue
of responsibilities a little bit later.
Q31 John Austin: I was going to say
responsibilities is an issue which we might want to tackle later
on. You mention justiciability and I want to look at the area
of economic and social rights and the need for progressive realisation
of those rights. If you look at our evidence that we took when
we talked to the Constitutional Court in South Africa, there are
clearly some concerns that some politicians have about bringing
the judiciary into decisions about allocation of resources, but
is the Government really nervous about judicial intervention in
those areas of economic and social rights or will your Green Paper
actually spell out quite clearly that the Government is committed
to that progressive realisation?
Mr Straw: I think you have to
be extremely careful about that, really, really careful. I noted
in your report, Chairman, that you say in paragraph 8 that: "Resource
allocation decisions should remain primarily for democratically
elected decision-makers. We do not agree that any judicial role
in these areas inevitably means that decisions about the allocation
of scarce resources become less democratically accountable".
On the overall issue, who makes the decisions about resource allocations?
I do not just mean the big numbers but being quite specific. In
my judgment, in this system, it needs to be the House of Commons.
If you are asking me specifically, and let us just deal with the
situation in India about which I am more knowledgeable than that
in South Africa, you have got the Delhi pollution case which has
now been followed through in other parts of the High Court in
India, where after years and years of arguments by the politicians,
the Supreme Court in India ordered the removal of the filthy two-stroke
engines from the tuk-tuks, the three-wheeler taxis, and replaced
them by LPG. It has literally changed the environment in Delhi.
The High Court in West Bengal, to much fuss I might say, is in
the process of doing the same in respect of Calcutta. I understand
why there is that level of judicial activism in India, and there
is general public consent for it as well in India. I do not, and
they can speak for themselves, believe that the judiciary in this
country believe that that kind of decision in this country should
be made other than by democratically elected representatives,
be that at national level or at devolved level or at a local level.
Of course, in terms of economic and social rights there is often
now before the courts an issue of whether if X has certain rights,
is Y being unfairly treated? That will always be an issue of equity
before the courts in one area after another. On the overall issue
of should economic and social rights be more justiciable than
they are now, my view is no, but that does not mean that you should
not have a declaration of rights and responsibilities where you
set out in a single document that to which people are entitled
and that to which people owe an obligation. This raises a very
interesting point of philosophy. We have never said that rights
are contingent on responsibilities. Self-evidently you have a
responsibility to obey the law but that does not mean that if
you fail to obey the law when you go before the court you lose
all rights to a fair trial. That would be an absurdity and an
affront to democratic society. If you take, for example, the field
of parenting and education, as well as the state having responsibilities
to provide schools and so on parents have responsibilities to
their children. In the Children (Scotland) Act 1995 some of those
responsibilities are set out rather explicitly. What Ed Balls,
the Secretary of State, is considering is how you better set those
out. In respect of health, people have had very clear rights since
1948 and the establishment of the Health Service. What Alan Johnson
is now doing through his NHS Constitution is saying yes, you have
rights to health but you have also got obligations to keep yourself
healthy and not to waste other people's money. It does not mean
if you fail to meet those obligations the doctor will not see
you. What it does is seek to raise the nature of people's behaviour
and change people's behaviour not just by the blunt instrument
of the law. You have a balance there and within a particular instrument
some parts of it are directly justiciable, as they are for the
Human Rights Act, other parts could be interpretive, other parts
could be not justiciable at all, but it does not lose their force
because words have meaning and force whether or not they are justiciable.
Mr Wills: Just a couple of points.
Firstly, the phrase "progressive realisation" has got
a very specific context. It is not the only way in which justiciability
could be increased, for example. I think what we are looking at
here is a spectrum of justiciability. It is not that rights are
either justiciable or non-justiciable. There is, if you like,
a spectrum and at either end of the spectrum you have got fully
justiciable, directly enforceable rights in the courts and, on
the other hand you have got rights which are purely declaratory,
although even they may have some legal effect. There is a debate
to be had because at any point on that spectrum there are arguments
for it and against it, and that is of course what we want to see
reflected in the Green Paper. What we would like to see is a discussion
about where exactly, if at all, we should plant any new Bill of
Rights and Responsibilities on that spectrum of justiciability.
It is of course true that the courts already scrutinise government
decisions in all sorts of areas. There has been tremendous growth
in judicial review. This is already a current debate and what
we want to see is that taken forward. These are profoundly important
issues, as the Justice Secretary has said. It is not surprising
that it has taken some time for this Green Paper to emerge. This
is potentially a profound constitutional change and it is right
that it should be deliberated on properly within government and
then there should be a proper public discussion about this matter.
Q32 John Austin: A lot of the cases
have not been about rights of service or rights of access. Many
of the healthcare cases have been whether public authorities have
acted reasonably in their discretion. On things like asylum seekers
you have denied access to healthcare for say refused asylum seekers.
Would that be justiciable?
Mr Straw: It has been the subject
of many proceedings. We can have a debate if you want about how
we treat asylum seekers, but I just say that there is a reason
why asylum seekers go through any number of countries where they
could and ought to claim asylum before they get to the United
Kingdom and that is because we are a decent country. All of us
have got long lists of cases of asylum seekers and on the whole
these are people who have been through a whole series of appeals
and whose appeals have been found to be quite unmeritorious. I
think we are entitled to take fairly firm action in respect of
those people and we do.
Q33 John Austin: But we can expect
something on social and economic rights in your Green Paper?
Mr Straw: You certainly can.
Q34 John Austin: When it comes.
Mr Straw: Along the lines that
I have been raising.
Q35 Chairman: Before I bring in Richard
Shepherd I would just make our position clear as a Committee:
we are not arguing for direct enforceability of social and economic
rights. We have suggested that there should be public sector duty
for the progressive realisation of those rights. Perhaps you could
confirm whether or not you see that as a justiciable issue or
not and secondly, for the interpretive power of the courts when
interpreting other legislation to give effect to those rights,
all other things being equal.
Mr Straw: If you do not mind me
saying so, this exactly begs a very large set of questions which
is why it takes time to develop a Green Paper when you are getting
people to think about it almost for the first time. As I say,
on this critical issue of where do the rights of elected representatives
and their responsibilities end and the duties of the court come
in, I think we have to be very careful indeed about moving away
from what voters expect of their elected representatives and handing
over duties to the courts. I may say, and there is plenty of authority
for saying this, that the senior judiciary are on record as sharing
that view, and that was certainly the view of Lord Bingham when
he made that speech on the rule of law where he talked about the
limits of judicial review.
Chairman: I do not think we would disagree
with the support of that position, as we said in our report. Richard?
Q36 Mr Shepherd: I think this area
is a profoundly constitutionally important issue that affects
Bills of Rights. In fact it divides, and I am not with the Committee
on its report, as you can imagine, and we are seeing an alliance
here that is concentrating on progressive advancement of social
and economic rights which to me is a matter of political policy.
What I was going to say is that this country is not unfamiliar
with a Bill of Rights. We had one of course in 1689 and it echoes
through the American Constitutional amendments and in fact the
very language of it is employed in part in the European Convention
on Human Rights. I just wanted to quote something to you because
I think it will elicitat least I hope it will elicityour
responses. This is a summation on our own original Bill of Rights
of 1689 by Elizabeth Wicks, and I quote her because she was a
pupil of Professor Feldman who was the first legal adviser to
this Committee and is considered a very considerable constitutional
expert and is now at Cambridge University. These are the concluding
words on it. She says: "The value of the rights and liberties
of individuals is the third fundamental to the revolution settlement
[ie the Bill of Rights]. The revolution was fought to protect
liberty and the concept takes a central place in the settlement.
The true value of liberty has been forgotten, however, as the
plethora of documentation of rights has increased. The liberty
which the people reserve from their government is untouchable
and encompasses many modern civil and political rights. This idea
of liberty is fundamental to the UK constitution and should be
recognised as a continuing restraint upon governmental abuse of
power. The first true Bill of Rights would be much expanded and
improved over the centuries, but it remains the first clear signal
that the constitution must serve to protect the people from sovereign
power. The fundamental ideas of a limited constitutional monarchy,
a supreme and limited Parliament and individual rights and liberties,
were introduced to the English constitution over 300 years ago
and, although the legacy is an imperfect one, these ideas still
endure in the constitution of today". It is this muddle that
we get into when we start saying that that which government cannot
absolutely give an undertaking to accomplish, the social and the
economic rights (and we now hear there is a third division of
rights, environmental rights), is the divide in this argument,
it seems to me. A Bill of Rights is essentially about the liberty
and freedom of the citizens and it is through the democratic process
and protecting the democratic process to advance all those causes
that this Committee has become a plaything for special interest
groups. That was my statement that was added at the end of it,
but I think that is the fundamental distinction that the Government
has to grasp, as does my Party, and I do not see a Bill of Rights
this side of a general election.
Mr Straw: You will certainly not
see legislation this side of an election. As Mr Wills has said,
this has to be a long process. It is fair to say that the incorporation
of the Human Rights Act into British law took a very long time.
Indeed, I think the first Bill on this was brought forward as
a private Member's bill to a raspberry from both front benches
by a man who happened to my former head of chambers, Sir Edward
Gardner, who later became the Member of Parliament for South Fylde.
That was in 1987 and it was 11 years after that before the Human
Rights Act was incorporated. Mr Shepherd, I, too, happen to believe
that the constitutional settlement, aka the Glorious Revolution
of 1688-1689, is absolutely fundamental to our constitutional
arrangements today. So much of what we take for granted in our
liberties goes back to that settlement and the nearly two centuries
of conflict, including the English Civil War of the 17th century,
which preceded it. The author is right to bring out the importance
of liberty. What, however, is the case is that I think it became
clear that simply saying that liberty is what Parliament says
it is was a necessary but not sufficient protection for liberty.
If I just give you one example: not when I started at the Bar
because by that stage the scales were falling away from people's
eyes, but when I started as a law student in the mid-1960s, the
view was taken that we were remarkably good to defendants in police
stations and they always got a fair hearing and that Dixon
of Dock Green was the way the police behaved, and we did not
need a statutory provision to protect defendants in police stations
or to require them to be released if there was no charge because
this was all dealt with under the Judges' Rules, which was some
generalised statement of protection which had no proper or explicit
authority. Anybody who knew how the police operated in those days
knew that Dixon of Dock Green was one of the world's greatest
fictions, and a smokescreen for what was going on. It took a whole
series of terrible exposures in the 1970s and miscarriages of
justice before we ended up with a proper detailed statutory scheme.
You can criticise the Police and Criminal Evidence Act and the
Royal Commission in between, but I happen to think that people's
liberties, including their freedom from arrest and their freedom
from oppressive action in police stations and so on, required
a greater description and backing by statute law. No-one disagrees
with that. There are plenty of other examples and of course
Q37 Mr Shepherd: We are agreed about
that. There is no dispute on what you are saying there.
Mr Straw: What I was going to
say was it was not so much what those who framed the Bill of Rights
had in mind, but in the 19th century through Dicey we developed
a view that people's rights were defined negatively, but it was
never appropriate to define them positively, and I think we have
learnt in recent decades, not least because we are now a much
more heterogeneous society than we were, that you have got to
define rights in a positive way as well.
Q38 Mr Shepherd: There is a very
clear distinction. Of course time has changed, modified and amplified
the rights that were set out in the Bill of Rights by subsequent
legislation and so on, but they are rights, they are affirmative
and they are within the justiciable process and therefore they
are statute. The original Bill of Rights is no more than a statute
and that is all you are doing. We are repeating or reinforcing
each other's argument on that point. I do not know there where
therefore you are trying to drive.
Mr Straw: If I may say so, nor
you me, if you see what I mean. I think we are probably more or
less in the same place.
Mr Wills: May I comment on that.
First of all could I say thank you for making sure that those
very stirring words are on the record of these proceedings.
Q39 Mr Shepherd: That is the heart
Mr Wills: I think there is a profound
philosophical debate about the scope of liberty and what those
rights are. I am not sure I would necessarily agree with your
characterisation of this Committee. I think there is profound
philosophical debate about the nature of those freedoms and I
think you have just alluded precisely to it. I think the Justice
Secretary was also alluding to that and that is, crudely, the
distinction between freedoms from and freedoms to and those positive
freedoms. This is a continuing debate and people will come down
on either side of it. That is precisely the sort of debate we
want to have as a Government. I think the Prime Minister would
certainly agree with what you said about liberty; he has made
speeches where he referred to it as the "golden thread"
that runs through our history.
Q40 Mr Shepherd: As did Rumpole!
Mr Wills: I am not sure that was
the source of the speech, but this is precisely the debate that
we need to have because it is a profound debate and people will
come down on different sides of it and what the scope of it should
be, but that is what we are in the business to do; have that debate.
Earl of Onslow: I wanted to say, Justice
Secretary, that the Committee was not quite as united as it would
appear to be by its report. I and one other member took a much
more, for want of a better word, chez pardue view than
other members. It was completely amicable but we both came to
this same view completely independently that what a Bill of Rights
is there to do is to restrain executive over-exuberance, to put
it at its mildest, and the responsibility of everybody in this
room is to do nothing else but obey the law, and if you do not
obey the law you accept the consequences. The question of how
you carry out policy has been in the hands of the House of Commons
solidly since the House of Lords said that it did not want to
have anything to do with taxation in 1340, or something like that,
and the only way the government can work, as you know much better
than I can, is when it pays the bills, and the only way it can
get the money to pay the bills is from the House of Commons. That
is the absolute total core of our constitution. There was certainly
in this Committeeand it is not as Richard Shepherd decided
ita deep and fundamental difference between John Austin
and myself. I respect his views but I think that they are profoundly
wrong, and because this Government on terrorism legislation, on
SOCPA, on civil contingencies and on fraud juries has in effect
gone against what I would have thought was set out quite beautifully
in those words that not only is a Bill of Rights very necessary
but it is necessary to restrain and stop the Government's nasty
habits and it is also necessary to support the Human Rights Act
rather than undermine it. That is a declaration rather than a
Chairman: Can we have questions from
Committee members rather than statements as we are here to question
Q41 Earl of Onslow: Does the Justice
Mr Straw: In parts, Mr Chairman,
not in other parts, as Mr Wills indicated. My Lord, by your declaration
you get to the heart of a whole series of arguments but if I may
respectfully suggest it is perhaps better for us to be asked specific
questions about this. Of course it is correct that people need
to have rights against the potential of an overweening, over-energetic
state; of course that is true. There is then an issue of how they
enforce those rights and in the area of justice, which everybody
understands, those are enforceable through the courts, but there
is a grey area where through judicial review a lot of executive
decisions which are not directly related to the judicial system
are better enforced by individuals and, as Mr Wills and I both
said in response to Mr Austin, there are other areas where we
believe it is very sensible to have a Bill of Rights to be declared
and also responsibilities to be asserted, but not necessarily
for those to be directly justiciable, or at all.
Q42 Chairman: Can I give you a specific
example of a social and economic rights issue over the question
of housing. Would you agree with the basic premise that it is
right in principle that lenders should be able to sell a property
which is somebody's home without first having to persuade a court
that it is fair and reasonable in all the circumstances to evict
somebody? There was the case at the beginning last year of Horsham
Mr Straw: I am very familiar with
it and it is a clash between a section of the Law of Property
Act 1925 and a section of the Administration of Justice Act.
Q43 Chairman: For those who are less
familiar with it, what happened was the High Court held that lenders
were entitled to sell properties without having first to go to
court, following a single default on a mortgage payment. The purchaser
can then get a possession order against the borrower, ie the mortgagee,
the resident, as a trespasser because they no longer own the property.
Mr Straw: I have read the law
report and I went into it in great detail and I am very concerned
about this and, Chairman, there is a lacuna
Q44 Chairman: Let me finish the question.
The question is: is that not a good example if you had an underpinning
right to housing of guaranteeing the procedural safeguards to
make sure that nobody is turned out of their house without a court
Mr Straw: It depends because under
the European Human Rights Convention people have a right to their
property. My own view is that what the public and Parliament want
is a situation where people cannot be evicted from the home that
they are living in and in respect of which they have a mortgage
without an explicit court order. There is not an ambiguity; there
is a clash between two statutory provisions. This was used in
the Horsham Properties case by the mortgagors of some right-to-let
properties where they got an order for sale over the heads of
the individual tenants. It was slightly different but, anyway,
just on that specifically, where the law has ended upand
it is not the court's fault, it is because we have got two sets
of statutory provisions which are going in the opposite directionsis
not satisfactory and we are urgently looking at making it satisfactory.
Q45 Chairman: The point I am putting
to you in the context of social and economic rights is if you
had an underpinning right to housing then that could inform on
an interpretive basis those decisions.
Mr Straw: It might be able to
is the answer. It might also however lead us into just as an ambiguous
position as we are at the moment. As I say, dealing with that,
because the courts are themselves faced within the Convention
explicitly with people's right to their property, I think there
is a more sensible way of doing it and simply to have a statutory
Mr Wills: Can I just add because
I think it is a very important point of principle as we go forward
in discussing this issue that you have just raised, Chairman,
obviously there is a problem here and it needs to be resolved,
but embedding this in a Bill of Rights and Responsibilities is
not necessarily the only way of resolving it. I think that is
what the Justice Secretary has just said. The underlying point
of principle is very important and as we go forward in discussing
this I think it is quite important that the discussion takes place
on the basis of constitutional principle rather than of individual
Chairman: Of course and I was using that
as an example but we should move on. Edward Timpson?
Q46 Mr Timpson: Can I take us to
the role of responsibilities in any future Bill of Rights.
Mr Straw: Please, yes.
Q47 Mr Timpson: You just started
to touch on the details of what the Green Paper may have in it
in respect of responsibilities in terms of the responsibility
of parents towards children, the NHS Constitution, and responsibilities
towards the nation's health. Bearing in mind we now know that
it is a matter weeks until the Green Paper is upon us, can you
be more precise about exactly where you mean responsibilities
will be, how you are going to define it, how far-reaching it will
be so that we have got something tangible when we think about
responsibilities in any future Bill of Rights?
Mr Straw: Mr Timpson, I am sorry
that I cannot anticipate the Green Paper, which is essentially
what you are inviting me to do. What are we seeking? Let me say
what the objective is from this exercise: It is to get away from
what I have described in a couple of lectures as a "commoditisation"
of rights where people see rights, as it were, as free goods which
they draw on when it suits them but they do not recognise that
with rights there are balancing (but not contingent) responsibilities
and obligations and that with freedoms there are duties. Society
cannot operate unless as well as people drawing on their rights,
which inevitably involve not only obligations by the state but
usually obligations on other people, they have to show responsibility
to others, in biblical terms to respect their neighbours' rights,
which involves responsibility. There are people who say if you
do not make this justiciable, or additionally justiciable, because
there is quite a lot of balancing language within the European
Convention and therefore on human rights, it is meaningless. The
very fact that we are at long last having a debate about this
illustrates that it is actually quite sensible. The examples which
I used were tangible. I would certainly find it useful when I
am discussing it with some of my constituents when they come to
see me to assert their rights to say, "Yes but in the same
document, the Bill of Rights, it also reminds you that you have
got responsibilities and I am not absolutely certain that you
are showing quite the level of responsibility that would be expected
of you in this situation". We need to say it anyway but I
think it would be helpful to be able to refer to it. As I say,
in terms of rights and responsibilities in respect of children,
people for sure have rights against the state, which is rights
on which they draw in terms of education and so on, but parents
have very clear responsibilities, which is something we try to
get across in very specific terms within the framework of the
law and through measures like parenting orders. Ed Balls is anxious
to bring that out, and I think he is quite correct to do so. In
health there is the development of the NHS Constitution and in
that people have rights to a wonderful health service but they
have also got responsibilities to themselves, interestingly, about
their own health and to take care of their own health as well
as not to waste the resources of the Health Service because by
wasting the resources of the Health Service then they were denying
other people's rights. It is to stimulate that debate. I see Dr
Harris sucking his teeth.
Q48 Dr Harris: Will smokers be in
breach of the Bill of Rights?
Mr Straw: This debate is not about
being in breach of the Bill of Rights, Dr Harris. We are not talking
about denying people. I made it very clear that we are not saying
that people's rights to healthcare are contingent on them showing
responsibility, but we are trying to create a societyand
society depends on thisin which there is a greater level
of responsibility and we need to raise these issues. I saw you
sucking your teeth at this suggestion but we have got to bring
out this debate. I think it is really, really important.
Mr Wills: I want to pick up a
couple of things that the Justice Secretary said in response to
this. First of all, I think the context of any potential future
Bill of Rights and Responsibilities is that it will be in part
aspirational. We have talked a lot about justiciability but what
we are doing possibly with it is codifying existing rights and
existing responsibilities, including responsibilities to obey
the law for example.
Q49 Earl of Onslow: But you do not
need to write down that it is your responsibility to obey the
law; it goes without saying.
Mr Wills: Sometimes things which
people think go without saying actually need to be said.
Earl of Onslow: Are you really saying
that you have to write down that we must obey the law otherwise
people do not know about it?
Q50 Chairman: That is probably the
only justiciable part of responsibilities. Most of the things
you are talking about could not possibly be justiciable whereas
some of the existing political rights are justiciable. You cannot
qualify those legally justiciable rights like a right to a fair
trial by a non-justiciable responsibility, can you?
Mr Straw: Let me, if I may, intervene
on Lord Onslow's point. Lord Onslow, we may have different perspectives
about this but certainly when I go round prisons and I am canvassed
by prisoners about their rights, and they are often conscious
of their rights, as well as listening very carefully to their
complaints and dealing with them where I think they are justified,
I also like to refer to their responsibilities, and, as Mr Wills
said, this is in many senses aspirational but it will change the
terms of a lot of debates if we can refer to people's responsibilities
directly. I also say to you, Chairman, that although this is,
like most analogies, not a direct one, I was reflecting overnight
on the development of the law of equity because the common law
was very clear that people either had rights or did not have rights
and if they had rights they could enforce them and if they did
not have rights they could not enforce them, and that actually
led to a good deal of injustice. The Chancery Courts developed
the law of equity which was very much a balancing exercise where
people's own behaviour, which is encapsulated in the maxims of
equity, was considered as part of the overall judgments by the
court as to what remedies should be offered. We take that for
granted in the law of equity but it has been fundamental to the
development of English law and been a gift to the rest of the
world. I was not around in a very draughty Westminster Hall as
the Chancery Courts have gradually tried to move inch-by-inch
to these concepts, which is what they had to do, but what we are
seeking to do, if you like, is a similar exercise. Maybe in 30
years' time some maxims of rights and responsibilities will be
taken for granted and they will be easily quoted and, if they
are, I think we may see behind those words some changes in the
way people relate to their neighbours.
Mr Wills: Can I just add to this
point. Firstly, I think we should be clear that in the existing
Human Rights Act and the European Convention there are responsibilities
inherent, and on occasion explicit, and it would be reprehensible
of us if we move forward with a new Bill of Rights and Responsibilities
and not reflect what is already inherent and perhaps to make it
more explicit. The reason fundamentally for that is that if we
are going to codify existing rights and set out fundamental freedoms
that people can enjoy, this is a profound constitutional document,
and Mr Shepherd very rightly drew attention to the continuing
importance of something that took place over 320 or 330 years
ago (my arithmetic very quickly). These are profoundly important
documents and surely we should be codifying all of those rights
and freedoms and those responsibilities which we owe to other
people. They are not contingent upon each other, just to repeat
Q51 Dr Harris: I understand the responsibility
to respect the rule of law and indeed to respect the rights and
freedoms of others which you have just been talking about but
you have just raisedand it was your own exampleaspirational
ones like your responsibility to yourself in respect of health.
I hope I am being at least as accurate as the Daily Mail
in quoting you back. Are you really saying that you want to find
smokers, which is the best example because there is no safe responsible
dose of smoking, or obese people in aspirational breach of a government
or parliamentary proclamation? Is that really going to add much?
Mr Straw: Dr Harris, if you look
at the NHS Constitution, which has already been promulgated, that
contributes to the drafting of this Green Paper on rights and
responsibilities, you will see there are statements that sayI
have had a note to say that the NHS Constitution is formally to
be launched tomorrow so I am ahead of myself!
Q52 Dr Harris: It is in the grid
so it counts!
Mr Wills: Successive governments
have been spending millions of pounds explaining to people that
smoking is irresponsible to themselves and to their families.
Q53 Dr Harris: Health education,
yes, but is it for a Bill of Rights and Responsibilities?
Mr Straw: That begs the question
which instrument you put it in but certainly I thinkand
you may say this is rather prosaic but it is rather less prosaic
if you are a doctor at the end of thisthe specifics would
be in a generalised Bill of Rights and Responsibilities, but for
example patients' responsibilities on keeping appointments, on
treating NHS staff with respect, on contributing to their own
health, and getting across to people not that they will be denied
healthcare if they are smokers or they are obese but getting across
to people their very clear responsibilities for contributing to
their own health care, I think is really important; I just do.
Mr Wills: Because the consequences
of them acting irresponsibly in such fundamental matters as their
own health are not limited to them themselves or even to their
own families. The consequences, as the Justice Secretary has already
said, spiral throughout society because of the cost of this and
it is precisely because people have those fundamental rights that
those costs are there which is why we should have responsibilities.
Chairman: I think we need to move on.
I think the way you have described the development of the law
of equity for the lawyers amongst us gives us a better idea of
where you are coming from. I think that was a very helpful expression
of what you are about. Edward, you have another question.
Q54 Mr Timpson: I want to move on
to the process of consultation but just before I do I want to
get a clarification of exactly where we stand on having a Human
Rights Act and having any future Bill of Rights and Responsibilities
because essentially we have got two separate instruments there
which, bearing in mind that one of the reasons behind looking
at a Bill of Rights is that there is a confusion perceived amongst
the public as to what the Human Rights Act means for them, how
are they going to be able to sit side-by-side as two separate
instruments? How are we going to get any legal certainty when
you have those two instruments almost competing against each other?
Mr Straw: They are not designed,
Mr Timpson, to compete against each other. I have certainly said,
as has Mr Wills and the Prime Minister, that we are not intending
to do anything which undermines the Human Rights Act or its incorporation
of the articles that are incorporated, still less to denounce
the Convention. However, if you look at the Human Rights Act,
it made a selection of those Articles which are incorporated,
and it incorporated some of the Articles but did not incorporate
others. For example, it did not incorporate the Article in respect
of remedies. Also in sections 12 and 13 it provided guidance to
the courts, for example in respect of the media which, as Mr Wills
has already made clear, we made a concession to the media in terms
of remedies that could be available, and to the churches and other
religious organisations, just a tilt on the tiller as to how they
might interpret the competing claims in respect of freedom of
expression and freedom of worship. Let us say we ended up with
a new instrument out of this, its building blocks so far as enforceable
rights were concerned would be the Human Rights Act and the Convention,
but it would start off as a non-justiciable document and there
will be other statements within it that will not be justiciable.
You have to move at a pace which the British public will accept,
not jam this down people's throats. It is really very important
if you are going to do this. That is one of the reasons why we
have had stability in our constitutional arrangements in this
countrybecause politicians have shown leadership but they
have not taken the public to the point where they break away from
our constitutional arrangements. There would be other articles
within it which dealt with wider issues of economic and social
rights, which would not be justiciable, and then this whole issue
of responsibilities. I do not think there is any clash there.
If you do not mind me saying so, I think there would be a greater
clash if a policy which is suggested by some people in your Party,
which is that you should stay within the European Convention but
repeal the incorporation of those articles and have your own Bill
of Rights and Responsibilities, because you would end up in the
situation where the British courts have (assuming they can detach
themselves from all the jurisprudence that has built up within
their own system ) to apply themselves to this British Bill of
Rights which directly had nothing to do with the European Convention
but because we are still within the Convention the Strasbourg
Court could then much more frequently than they do at the moment
overrule and collide with what the British courts and British
Parliament is doing, which I think is certainly a recipe for confusion.
Mr Wills: Just so that we are
absolutely clear, we will build on the Human Rights Act. There
is no question of changing it, so that legal certainty remains.
What we are opening a debate about is how we build on it, as the
Justice Secretary said in his speeches.
Q55 Mr Timpson: But you are moving
forward on this on the basis that there will be no legal ambiguity
between a future Bill of Rights and the current Human Rights Act?
Mr Straw: Of course.
Mr Wills: Sure, sure, yes.
Q56 Mr Timpson: Can I move on to
how we go about consulting over any future Bill of Rights. You
have spoken a lot today, Secretary of State, about wanting to
reach out to the people. I think you have got to bring out the
debate. You will be aware that in Australia they have just begun
their own consultation process, the National Human Rights Consultation,
which is being conducted by an independent committee, and they
will then report back to the Government who will then take their
advice and move the matter forward, which would be consistent
here if the ultimate decision were to be made by Parliament. In
terms of involving the public and having as wide-ranging a debate
as possible about the future of any Bill of Rights and Responsibilities,
that would seem to be a sensible way forward, so why is it that
there is some caution coming from the Ministry of Justice about
any future community consultation conducted by an independent
committee as opposed to it being done in the way that the Government
Mr Straw: Can I say that I do
not dismiss the idea of having an independent body to do this
but it is a balanced argument. I have thought about it a good
deal. I do not speak for the way that the Australians are doing
it because although there are many similarities there are many
differences, and we have different constitutional traditions.
My view is that one is most likely to build up the political consensus
with a small "p" if this process is owned by government
and this place. I would just say that if we had left the incorporation
of the European Convention to a specialised body my betting is
that we would still not have a Human Rights Act because that is
the way that government and this place works. If you want to make
progress I think you have to have people who are engaged in the
argument here and ultimately it would be for this place to decide.
At the heart of the argument you must have government engaged
as well because it would have been the easiest thing in the world
if you were able to have some expert committee and you were going
to get some experts to produce a report, and then you think this
is all very difficult or others around government will say it
is all very difficult, that it then it gets left on the shelf.
I am not saying that never happens in this Government but some
make that allegation. It does happen, it is a truth. The other
thing I would say is that we have got the Equality and Human Rights
Commission and they will have an interest in this. There is another
observation I would make. Before the great reforms and the development
of select committees which took place in the early 1980s under
Norman St John-Stevas as the Leader of the House, it was very
frequent that faced with an issue like this government would agree
that there should be a Royal Commission. It was the only way of
getting these things examined. Over the last nearly 30 years we
have developed a very strong system of select committees with
a lot of expertise and a lot of members take a close and assiduous
interest in the work of select committees. I think that Parliament
is now equipped (and that includes this Committee) to do this
kind of work and to lead this kind of debate in a way that perhaps
it was not 30 years ago.
Q57 Mr Timpson: Because this is such
a fundamental and constitutional decision that is being made there
has to be the greatest level of public confidence in what is being
Mr Straw: I agree.
Q58 Mr Timpson: I think it is fair
to say that other government consultations where there has been
a degree of public involvement but not a widespread level of public
involvement in many respects have been seen as either a sham or
as not being a proper consultation, if I give a slightly less
confrontational edge to that. By going down the independent committee
route, by engaging as many members of the public as possible in
coming together with a document that is an advisory document for
the House here to consider, and where the ultimate decision will
still be made, does seem to me, and I suspect to other members
of the Committee as well, to be a much greater prospect of getting
the public and cross-party confidence that is necessary in order
for something like this to be carried through, not just by this
House but by the whole of the country as well.
Mr Straw: Chairman, I do not rule
it out, but I have expressed my anxieties here, which is that
if an independent committee working in the way you suggested could
produce all those benefits, that is the upside. The downside is
that it could be seen by those who do not want to do anything
as a means of kicking it into touch. Rather long experience tells
me that there will be people around who might treat it in that
way rather than the reverse. It could be that as a result of the
Green Paper and the discussions it would start the beginnings
of a political consensus with a small "p" and that you
did then have a vehicle for taking it forward.
Mr Wills: I think we would agree
on the objective which is to secure broad public consent to such,
and it must be well set out because otherwise this would not endure.
Any profound constitutional instrument such as a Bill of Rights
and Responsibilities is only worth doing if it is going to endure
as long as the 1689 Bill of Rights. It will only do that if it
secures public consent and that will only happen if the public
broadly feel ownership of that process. We agree with the objectives.
The only question really is how we best secure that within a reasonable
time-frame, and on that we are open.
Mr Timpson: Talking about time-frames
I will stop.
Q59 Lord Morris of Handsworth: I
wonder whether I could take us down to a more mundane level of
conversation. It is about administration, an area for which the
Justice Secretary has responsibility and the Committee have rights
of expectation. I think it was June 2007 that we published a report
on human rights judgments which made a number of recommendations
about how the Government should co-ordinate its response to adverse
judgments on human rights and the provision of information to
Parliament. We had what we believe was a legitimate expectation
for a response to the recommendationsand for ease of reference
I have a copy herebut up to August of the same year 2007
we have not received a reply to these recommendations and we were
wondering what is the delay in respect of what is happening to
Mr Straw: I am sorry there was
a delay. I have actually signed off the response and if there
are specific judgments, Lord Morris, you are concerned about I
am happy to offer an oral response to these now. Our record overall
is pretty good. We take our obligations very seriously. We are
due to publish it very quickly.
Q60 Lord Morris of Handsworth: So
we are wrong in assuming that there just might have been some
disagreement with, say, the Foreign Office for example?
Mr Straw: I do not think there
has been actually and I cannot think why there should be, not
least because the Foreign Office has shared responsibility with
my Department for the Council of Europe and the European Convention,
but some of the cases that were of concern to the Committee fall
within the Foreign Office's remit,.
Chairman: We will come back on issues
in particular cases but the recommendations in that report that
we were particularly concerned about were systemic ones on how
the government operates and deals with human rights issues.
Mr Straw: We have responded to those.
Q61 Chairman: That is what we have
been waiting for for 16 months.
Mr Straw: And you should have
had an earlier report
Q62 Chairman: So we are going to
get that imminently?
Mr Straw: You are.
Q63 Chairman: By February?
Mr Straw: I have signed it off,
is the answer. There was an issue about whether we published it
yesterday but I was told that this Committee did not want it to
be published yesterday.
Q64 Chairman: It is winging its way
to us, is it?
Mr Straw: It is winging its way
Q65 Lord Morris of Handsworth: We
have got a guarantee. But why has it taken so long?
Mr Straw: I am afraid to say that
the delay has a rather prosaic not to say dismal explanation which
is that it should have been dealt with more quickly and it was
not and I apologise for that. But was there any conspiracy or
argument between other government departments or anything else
behind it? So far as I know, absolutely not.
Lord Morris of Handsworth: We will hold
you to the February recess.
Chairman: We hope it is tomorrow. Lord
Q66 Lord Lester of Herne Hill: Secretary
of State, as you rightly said, the UK has a good record of complying
with the judgments of the European Court of Human Rights. It has
an extremely bad record in the case of Hirst v United Kingdom,
the prisoner voting rights case. I want to remind you of the background
briefly, which is the judgment was in 2005, it was speedily implemented
by Cyprus and by Ireland, who gave postal votes very quickly even
though they were not parties. In Hong Kong a judgment on 10 December
which said that it was unlawful to exclude prisoners from voting
in Hong Kong is to be implemented by the Legislative Council within
eight months. You carried out a consultation which we thought
would lead to legislation or an immediate order or whatever. You
are now carrying out another consultation. Lord Bach has not been
able to tell me when it will begin or when it will end at all.
The suspicion is that what you are seeking to doand I am
sorry to put it in this adversarial wayis to delay it until
after the next election for fear that the tabloid newspapers would
crucify the Government. What I would like to know from you is
how you think you are complying with your international obligations
to abide by the judgment binding on the UK by prevaricating in
this way and exactly what it is now that you propose to do well
before the next general election? Finally, the Scottish position,
as you know, in Scotland the exclusion has been held to be unlawful
there and there has been a declaration of incompatibility. We
are talking about very large numbers of prisoners in Scotland,
Northern Ireland, England and Wales, often in prison for rather
minor offences (I am not talking about the serious ones) and you
propose to do absolutely nothing, as far as I can see, between
now and the election in terms of abiding by the judgment, so could
you tell us exactly what it is you are going to do?
Mr Straw: We do take our obligations
seriously and we do meet our obligations, Lord Lester. Why has
this taken some time? First of all, the European Court in Strasbourg
said that it was outwith the Convention rights for there to be
a blanket ban on convicted prisoners voting. It did not provide
a very specific remedy for that, except to say that we needed
to qualify that restriction. What we have been consulting about
is how we meet the obligations in the best possible way and we
raised a series in the first consultation. We are about to embark
on the second consultation. Why is this difficult? Most of the
obligations which are imposed by decisions in the Strasbourg Court
are obligations on the executive, and where that for example involves
the liberty or freedom of a particular individual, for example
Chahal, then they are swiftly implemented because they
involve an executive decision. Other cases are rather easier to
pursue. If you take the more recent judgment of the Strasbourg
Court in Marper, which was about the collection of DNA
evidence, whilst what is in the statute was declared to be to
some degree outwith the Convention rights, I believeand
I read the judgment through very carefullythat there will
be a way through and that it is possible to find a consensus which
meets the will of both Houses of Parliament and establishes a
more satisfactory system. The difficulty we have gotand
there is no secret about thisis this is an issue of prisoner
voting rights on which both the main parties have had a very clear
position, which has not been the subject of any significant controversy
whatsoever within their parties, that when people are convicted
and sentenced to prison they lose their civic right to vote. This
is a very unusual situation where the European Court is saying
one thing but this is not changing the law, it is not within the
gift of the Government, it depends on Parliament. If Members of
Parliament decide they are not going to accept what the European
Court says then they will not accept it. What we have been seeking
to do is to identify the best possible way of meeting the obligations
under that decision and to do so in a way that shows respect and
achieves consent for that decision, and I happen to think that
that is sensible and it recognises the unusual reality of this
Q67 Lord Lester of Herne Hill: Why
is it that in Cyprus, in Ireland and in Hong Kong they find ways
of dealing with this promptly? Why can you not decide as a matter
of policy that certain kinds of offencesterrorism and perhaps
other serious offencesshould not entitle people to vote
but in the generality of the prison population they should be
in the same position as many other countries? Why can you not
introduce a remedial order? You say it is in the gift of Parliament
and not government but it is for government to introduce either
a remedial order or an amendment to legislation, not for Parliament
to do so. What I am suggesting to you is that when the Committee
of Ministers at their next meeting come to look at UK compliance
with Hirst, they will read what you have just said and
they will think that the United Kingdom is in gross dereliction
of its obligations, which is not desirable for our international
Mr Straw: I do not accept that.
Lord Lester, if I may say so, if you were in my position you would
also wish to have a care for the view taken by both of the largest
democratically elected parties in this country. I am afraid I
cannot speak for the political class in Cyprus or Hong Kong or
wherever else it was; my knowledge does not extend that far. What
I do know, not least from my time as Foreign Secretary, is that
time and again there were issues which did not feature on our
political radar at all which were huge issues of controversy in
other EU Member States and vice versa. This is an issue on which
both main political parties agree. I cannot ever recall there
being a debate in the Labour Party except when there was a proposition
by another party which came out at a Labour Party Conference to
say we were against voting rights for prisoners. There has been
no debate in the Labour Party and I do not think there has been
ever in the Conservative Party either. We have to meet our obligations
but we need to do it in a way which achieves consent as well as
meeting in full our obligations. You beg the question essentially
of where and how you draw the line because Hirst did not
lay down any precise prescription about which prisoners should
or should not be able to vote. They simply said that a blanket
ban was unacceptable. What we are having to do is look at which
categories of prisoner should be able to vote and, for sure, it
would not include those convicted of very serious offences, but
what is a maximum prison sentence which would be acceptable, and
then whether within that maximum, or you could say outwith it,
you give discretion to the court about how that is administratively
enforced as well. There are other issues because I think it would
be wrong if somebody happened to have a prison in their constituency
and the prisoners were registered to vote in respect of their
prison address that that could influence the result of an election.
There are those issues as well. That is the same explanation that
we will offer to the Council of Ministers. I also rely on the
fact that this has been an exception, for good reason, to what
is, in my view, a pretty exemplary record.
Mr Wills: There are practical
issues as well. If prisoners are allowed to vote there is then
the issue of putting them on an equal footing with other voters.
Other voters have not a right but an expectation of access to
parliamentary candidates so that they can judge them first-hand.
What implications does that have for prison and prison access
at a time when the Prison Service is already very stretched? There
are a lot of practical questions as well as principle questions
that have got to be addressed and they have got to be got right.
Chairman: I think we need to move on
now. Lord Dubs?
Q68 Lord Dubs: You will be familiar
with the case of the two Iraqis who were handed over to the Iraqi
authorities on 31 December. These two Iraqis were accused of the
murder of two British soldiers and the European Court of Human
Rights said they should not be handed over until the court had
considered whether these two men came under the European Convention
on Human Rights. By handing them over to the Iraqi authorities
it seemed to me to be breaching two important related principles:
one is we should not be in breach of decisions by the European
Court of Human Rights; and the second is that we should not hand
people over to jurisdictions where they are liable to be given
the death penalty. Would you care to comment?
Mr Straw: Yes I would. I think
the decision which the Defence Secretary made following the decision
of the Court of Appeal was absolutely correct on this. There was
not an enforceable injunction from the European Court, as I understand
it; it was an indication by them. There is not an edited law report
of the decision which the Court of Appeal made on 30 December
but I have here the transcript of what Lord Justice Waller and
Lord Justice Laws had to say about it. The situation was this:
it was effectively impossible to comply with what the European
Court was apparently asking in this indication it was wanting.
Even if it had been the case that we were exercising jurisdiction
over the appellants within the meaning of Article 1 of the European
Convention, which the Court of Appeal found explicitly we were
not: we were holding those two prisoners under an agreement with
and under the authority of the Iraqi Government which expired
the very next day. The very next day we would have had no authority
whatsoever to hold them, still less to bring them to the United
Kingdom. These were Iraqi prisoners in Iraq. We were holding them
on behalf of the Iraqi Government. If we had not handed them over,
the next day our right to hold them would have ended and the Iraqi
Government would simply have arrested them. What the interim indication
failed to take account of was the reality of the situation. The
Court of Appeal was absolutely explicit that the United Kingdom
could not exercise jurisdiction over the appellants within the
meaning of Article 1 of the European Convention and I think, if
one reads the transcript, they were dismissive of any suggestion
that the European Convention extended to prisoners in a third
country quite outside the Council of Europe. We were holding them
on behalf of that country by agreement with that country which
agreement ended the next day. It would have been an absurdity.
There is no way that we could have implemented that indication
(not an injunction) from the European Court because we lost all
authority over those prisoners the very next day. Lord Justice
Laws said on page 149 in the transcript: "In short, the United
Kingdom will have no colour of legal power whatever after 31 December
to do anything other than to return the appellants to the order
of the Iraqi High Tribunal". That was the reality.
Q69 Lord Dubs: I do not want to get
into a tangle with you about the status of the decision by the
European Court of Human Rights. At the very least there is a certain
amount of ambiguity. They said we should not hand them over.
Mr Straw: But what would the effect
of that have been? They were not in our jurisdiction, it is not
about keeping people within the United Kingdom pending a court
decision. This was, frankly, an absurd situation in which the
British courtsthey did not use that wordmade it
clear that we had no power whatever to hold them after midnight
on 31 December. So what would have happened? We could not bring
them here; we had no power to bring them here. Why would the Iraqi
Government have allowed us to bring them here, what possible grounds
would they have had to come here, they had no grounds. The Court
of Appeal had found that Article 1 of the ECHR did not apply so
we would have had to unlock them the next day.
Mr Wills: Also it would have been
unlawful for us to retain them. It would have been unlawful.
Q70 Lord Dubs: Can I just put one
point. We could have done one other thing which is what we do
with extradition cases to the United States; we seek an assurance
that anybody extradited to the United States liable to the death
penalty will not be executed. We could have sought such an assurance
from the Iraqi Government.
Mr Straw: I think various assurances
of that kind were taken. Lord Dubs, what you are failing to recognise,
if you do not mind me saying, is that there is a complete distinction
between an individual held within this jurisdiction who is plainly
subject to the Convention and the Human Rights Act and somebody
who we are holding on behalf of another government in a jurisdiction
completely outwith the Council of Europe where the Court of Appeal
has confirmed it is outwith the Council of Europe. Moreover at
page 148 Lord Justice Laws refers to an earlier decision which
shows "that an obligation of this kind to return persons
to the host state has to be respected, albeit that the holding
state in question is subject to ECHR obligations, unless to return
the appellants would expose them to a crime against humanity".
We were bound by that decision, being the decision of this Court
of Appeal. Then he went on to say: "Neither the death penalty
generally nor the death penalty by hanging is shown to be a crime
against humanity nor an act of torture". I am very happy
to share this copy of the transcript with the court.
Q71 Chairman: We are not a court!
Mr Straw: With the Committee,
Q72 Dr Harris: Before you start criticising
Mr Straw: So far as the British
Government is concerned, I am told in my notes here that we received
assurances from the Iraqi Government that the two appellants,
Mr Al-Sadoon and Mr Mufdhi, would be treated humanely when they
are transferred to Iraqi custody and indeed both Secretaries of
State concerned, that is the Secretary of State for Defence and
the Foreign Secretary, consider these assurances to be credible.
We have also received assurances that United Kingdom objections
to the death penalty will be taken into account during the trial
at the Iraqi High Tribunal.
Q73 Chairman: But we had held these
people since 2003 and the Iraqis asked for them in December 2007.
Why did we leave it right to the very last minute to make a decision
about this? On the jurisdiction issue, is that not precisely the
issue that the European Court on Human Rights would have decided
onbearing in mind it was an interim decision so why are
you relying on the Court of Appeal rather than the European Court
of Human Rights?
Mr Straw: So far as the time-scale
is concerned, Chairman, I am afraid you will need to seek a memorandum
from the Ministry of Defence because I am not up on the detail
of the timescale. It was an indication from the Registry not a
decision of the Court and it is very important just to make that
clear. I suspect if the point had been able to be argued they
would have recognised the impossibility of doing what they asked.
It simply was not possible to do what they asked. What were we
supposed to do, bring these people back when we had no legal power
to do so and when the legal power to detain them in Iraq expired
the next day?
Q74 Chairman: If the Court of Appeal
had decided the other way
Mr Straw: Happily the Court of
Appeal did not decide the other way because the Court of Appeal
recognised the reality of the situation and the legality of it,
Q75 Lord Lester of Herne Hill: I
will be corrected if I am wrong by somebody behind you, if not
by you, you said just now that it was an indication from the Registry
but my understanding was that it was a Rule 39 letter. If it is
a Rule 39 letter then a Rule 39 letter can only be issued on the
authority of the President. If that is right, it is considered
now as a matter of general practice completely wrong and undermining
the authority of the Strasbourg Court to disobey a Rule 39 letter.
What it seems to me has happened hereand I will be corrected
if I am wrongis that we have disobeyed a Rule 39 letter.
Italy did it and got into trouble for that and we have now done
so. It is another example where we have a very fine reputation
for abiding by the judgments where we have done something very
wrong because, as the Chairman has said, the court would swiftly
have decided whether you were right or wrong about jurisdiction
instead of which we pre-empted and disobeyed a Rule 39 letter.
Am I wrong about the Rule 39 letter?
Mr Straw: I think it is Rule 39
but I have not seen the indication itself. Lord Lester, I just
say againand this was the point made by the Court of Appealthe
Defence Secretary was not acting without lawful authority. We
had it from the Court of Appeal of this country in two respects:
one was that the United Kingdom was not exercising jurisdiction
over the appellants within the meaning of Article 1 of the ECHR;
and the second was that we had no alternative but to return these
people to the custody of the Iraqi High Tribunal. It was also
an unprecedented situation. Essentially in that indication what
we were being asked to do was something which was not possible
for us to do. That was the point that Lord Justice Laws was making.
If you do not mind me saying so, before we go on with extravagant
comments about us doing something which was contrary to what the
European Court asked us to do, it was not possible to do that.
No-one has been able to disagree with my point that the next day
we would have had to simply unlock the door and they would have
been arrested at the door of the prison.
Mr Wills: I was going to ask whether
Lord Lester agrees that it would have been a breach of international
law for us to retain them?
Q76 Lord Lester of Herne Hill: I
do not know and the reason I do not know is because I do not know
what the European Court would have decided, nor do I know, but
the Foreign Office legal advisers have a view on it, whether one
could have said to the Iraqi authorities, "Look, we are in
this difficult position, we have a Rule 39 letter, we therefore
say that we must at the moment abide by that international obligation
to comply with Rule 39. We are in a conflicting situation and
therefore this has got to be sorted out". Instead of which
we jumped the gun in the sense that we did not allow the Strasbourg
Court or the Iraqi authorities to resolve this difficult problem.
I am not saying it was not a difficult problem, but surely I am
right in saying that we disregarded not just an indication but
a Rule 39 letter, which is like an injunction?
Mr Wills: It is our understanding
that the legal advice that was given was that we would have been
in breach of international law and heavily criticised for being
in such breach had we retained them.
Lord Lester of Herne Hill: I follow that
but the other breach is of a Rule 39 letter.
Chairman: We had better move on. Let
us hope the two do not get executed. We are well over time now
but I was going to ask you to take one further issue.
Q77 John Austin: In response to Lord
Morris earlier on you gave reasons for the delay in responding
to our report on adverse human rights judgments. We also in 2007,
earlier than that, published a report on the meaning of public
authority. We should have had a reply on that in May 2007, almost
two years ago. That report contained 47 explicit recommendations
to the Government concerning contracts, procurement, and in November
2007, more than a year ago, Mr Wills told us that we would get
a reply soon. I wonder what Mr Wills means by soon and can we
expect a reply before the February recess?
Mr Wills: I understand the concern,
Mr Austin. As the Committee will be aware, we have been vigorously
engaged in dealing with the issues thrown up by this particular
case. In the normal process of events we would have responded
well before now but what has actually happened is that events
have moved on considerably. As you know, we have dealt with the
specific circumstances of the YL case already through the
Health and Social Care Bill in the way that we said we would when
I last discussed this with the Committee. We said that we would
tackle it if we possibly could. Ministers and officials from this
Department and from the Department of Health have spent a lot
of time dealing with that particular issue. We recognise that
there are still issues to deal with within the scope of the Human
Rights Act and we are proposing to deal with them. We are launching
a consultation. As I am sure you will understand, this is dependent
on how we move forward with the Green Paper on the Bill of Rights
and Responsibilities because there is a clear connection between
the two. Given all that, it seemed to us that we should perhaps
address this issue when we had a little bit more clarity about
the continuing process of the Bill of Rights and Responsibilities.
However, I am very happy
Q78 John Austin: There could have
been an interim report.
Mr Wills: I was just going to
say I am very happy, notwithstanding what I have just said, if
the Committee would like to have an interim response with all
those caveats around it, forgive me but they have to be there,
then of course I am happy to produce something, and I think we
can do that quite quickly.
Q79 Chairman: I think that would
be helpful because a lot of the issues were not directly relevant
to the Bill of Rights but simply recommendations on good practice.
I am surprised that we have not had a formal letter asking for
an extension. How long before you can give us an answer?
Mr Wills: Without wishing to horrify
the officials, let us say before the Easter recess. Can I just
stress the fact that we will have to take into account, and we
will obviously take into account, the specific recommendations
which are contingent, but I think the way we move forward from
now will be so contingent on the Green Paper that we cannot pre-empt
that publication either, as the Secretary of State has already
said. That will be before Easter so if you want a rapid response
it will inevitably be rather vaguer. If you are happy to give
us a little bit more latitude on this we will be able to produce
a more considered and full response. Perhaps we can be in touch
about the exact timing of it.
Q80 Chairman: One very specific question
about SOCPA relating to protest around Parliament, which was contained
in the draft Constitutional Renewal Bill, which seems to have
suffered a bit of slippage; has there been any discussion in the
Home Office about raising it in one of the other bills?
Mr Wills: The answer is yes there
is continuing discussion with the Home Office about how exactly
we move forward on this.
Q81 Chairman: So we will see something
Mr Wills: Depending on the Home
Office and how they are proceeding on this we would hope so.
Chairman: We have a number of issues
that we have clearly not got time for today so we will write to
you about those. Thank you very much. The public session is adjourned.