Work of the Committee in 2008-09 - Human Rights Joint Committee Contents

Examination of Witnesses (Questions 1-81)

RT HON JACK STRAW MP AND MR MICHAEL WILLS MP

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 into questions?

Mr Straw: Except to say that I am delighted to be here, why do we not go straight into questions?

  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-reaching—and 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 judgments—quite 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 position—and I do not think one would—then 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 issue arises.

  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 Declaration—and I think you have just agreed with this—in 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 this—you 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 judgments—and they called it a libel judgment but it was a judgment in respect of privacy—and 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 every comment.

  Q14  Chairman: It was quite a big, well-publicised comment.

  Mr Straw: It may be a big, well publicised one but I am afraid I rest on the answer that I have just given.

  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 quotation.

  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 say—to repeat myself, Dr Harris—which 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? We—the Government I presume—will 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 profession—and this is in one sense above and beyond concerns about the Human Rights Act—have 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 here—and I will mention what the note I have been passed says in a second—I 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 uncomfortable about.

  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 reasonable.

  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 these measures.

  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 courts—and there is a lot of authority on this—put 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 risk.

  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 scrutiny.

  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 John Austin.

  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 clear—the Prime Minister, Mr Wills, myself and many others, and indeed this report acknowledged that in terms—that 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 clearly—responsibilities 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 elicit—at least I hope it will elicit—your 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 of it.

  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 Committee—and it is not as Richard Shepherd decided it—a 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 question.

  Chairman: Can we have questions from Committee members rather than statements as we are here to question the witnesses.

  Q41  Earl of Onslow: Does the Justice Secretary agree?

  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 Properties—

  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 order?

  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 up—and it is not the court's fault, it is because we have got two sets of statutory provisions which are going in the opposite directions—is 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 amendment.

  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 cases.

  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 society—and society depends on this—in 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 myself.

  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 raised—and it was your own example—aspirational 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 say—I 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 think—and you may say this is rather prosaic but it is rather less prosaic if you are a doctor at the end of this—the 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 country—because 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 has proposed?

  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 done.

  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 recommendations—and for ease of reference I have a copy here—but 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 that?

  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 to you.

  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 Lester?

  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 do—and I am sorry to put it in this adversarial way—is 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 believe—and I read the judgment through very carefully—that 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 got—and there is no secret about this—is 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 particular decision.

  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 offences—terrorism and perhaps other serious offences—should 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 reputation.

  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 courts—they did not use that word—made 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, sorry.

  Q72  Dr Harris: Before you start criticising us!

  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 on—bearing 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, too.

  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 here—and I will be corrected if I am wrong—is 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 again—and this was the point made by the Court of Appeal—the 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 soon?

  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.

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Prepared 15 January 2010