Examination of Witnesses (Questions 360
- 379)
TUESDAY 14 JULY 2009
MR MICHAEL
WILLS MP, IAN
LUCAS MP, LORD
MALLOCH-BROWN
AND MS
CARMEL POWER
Q360 Chairman: There is also the
suggestion let your thousand flowers bloom, which is also talked
about. Bearing in mind that he is not going to finish his final
recommendations until 2011—another two years yet, and no
doubt there will be lots of arguments afterwards—is there
not a case for saying that the UK should take earlier action,
if only in those areas where state action has been pretty weak
so far?
Lord Malloch-Brown: Across a lot
of areas of activity, which are essentially touched on this, the
Kimberley Process on Diamonds, the different Transparency Initiatives
and security in human rights in conflict areas, the UK is already
a real leader and I think what Ruggie is trying to do is to find
a conceptual framework which ties all of this together. But it
is not as though we are standing still and waiting; we are doing
a lot in these different areas.
Q361 Chairman: The next question
is for Ian. Supposing Professor Ruggie comes up with ideas, suggestions,
proposals, recommendations that British businesses do not like,
are you going to fight for Ruggie or are you going to fight for
British business if they resist what he comes up with?
Ian Lucas: We have strong principles
in this area as a country, as a government and as a Department
in terms of the commitment to human rights, which we are trying
to take forward with business already through improving corporate
responsibility and improved work with business, and we certainly
see the benefits as an individual government working with UK businesses
to improve their practices generally right across the globe. It
seems to me that Professor Ruggie's course at the moment appears
to be sitting squarely in accordance with UK Government policy.
So I think the work that we are doing as an individual country
will help the Ruggie process and take it forward. I cannot predict
what he is going to say at the end of the conclusions, but I would
be surprised if it is at complete variance with the way that we
are approaching matters.
Mr Wills: I would not necessarily
agree with your verb, Chairman. Fight is not necessarily what
is going to happen here. We believe that it is very strongly in
business interests to engage with this agenda. The evidence is
that many of the companies that we are looking at in the Private
Sector and Human Rights Project are actively engaged already,
as Ian said. They may call it other things like corporate social
responsibility and so on, but we would hope and to a large degree
expect this to be a cooperative venture where we can work together
in promoting this agenda.
Q362 Chairman: Can I come back to
you, Michael, because a lot of Ruggie's work has been viewed in
a national context. Do you think what is coming out of this new
policy framework has relevance to businesses working within the
country?
Mr Wills: I think there will be
almost certainly implications for what we do domestically and
we would want to look at that, and that is why we have set up
the Private Sector and Human Rights Project in the first place.
It is an across departmental initiative and a very wide range
of departments are already involved in it, and I am sure it will
feed into this.
Q363 Earl of Onslow: Mr Lucas, you
may find this a slightly odd question coming from a Conservative
hereditary peer who is in the process of about to defend American
trade unions but we have had evidence, certainly from Tesco—they
were all fine words and buttering parsnips to start with—that
they were really being anti-human rights in resisting the unionisation
of their shops in the United States, and the same I was told outside—not
on the floor of the House but other people have written about
it—resisting unions in South Korea. I slightly got the impression
that they were making all the nice noises to us, but when it was
convenient actually not to be quite as good as they were pretending
to be they did not come up to scratch the whole time. Am I being
unfair from your experience and if I am I am quite happy, but
if I am not what will you do about it?
Ian Lucas: I do not know the detail
of the particular circumstances of each individual case that you
are talking about, but I would say that with a company like Tesco's,
which has a reputation to maintain, that a Committee of this nature
raising an issue of the type that you have just described is a
very serious matter indeed, and a very compelling actor upon its
behaviour in the future will be the fact that you have raised
it in Committee on the basis of what you have said, that they
did not raise satisfactory explanations and their approach to
the issues has not satisfied the Committee. I think that will
be something that would and should be of concern to companies
generally when that conclusion is reached and I think we should
not underestimate the impact that can have upon the behaviour
of a multinational company like Tesco.
Chairman: They promised us a supplementary
memorandum to deal with the points that were raised.
Q364 Lord Dubs: This is for Michael,
please, if I may. Some time ago, Michael, you agreed with us that
the meaning of a public function in the Human Rights Act 1998
needed to be clarified—and I am sure you expected this question
to come sooner or later and it is coming sooner—to reinstate
the intention of Parliament that private providers providing public
services would be covered by the Act. This was so important, you
argued, that it must be included in the wider constitutional debate
about a Bill of Rights for the UK. That consultation has been
and gone and your submission to this inquiry treat the issue as
one creating only "marginal uncertainty", which is a
bit at variance with what you were saying to us earlier. The question
is, is the Government backtracking on the scope of the Human Rights
Act now that the voter-friendly issue of care homes has been dealt
with?
Mr Wills: No, no we are not. Just
as a point of fact, the consultation on the Green Paper on rights
and responsibilities has not come and gone, it is about to begin
in earnest. However, having said that—I do not want to create
more uncertainty—we have decided that because of the way
in the end the Green Paper turned out, and I think I have already
said this to your Committee in closed session, it was not appropriate
to bring the two things together; that because we did not want
the Green Paper really to be a discussion about the Human Rights
Act—we are proud of the Human Rights Act, we do not resile
from it but we do not think it should be an issue for debate any
more, we think it has proved its worth—therefore bringing
a question about the scope of the Human Rights Act into the context
of the Green Paper we thought was to mix chalk and cheese. So
we have committed to launching a separate consultation. The immediate
mischief from YL we dealt with, as you have alluded to.
It does not mean that we think that there is not a strong case,
because we think there is a strong case for dealing with the wider
question about scope. It is obviously very important. We are ready
to launch a consultation. However, as the Committee will be aware,
the case of Weaver is going through the courts at the moment
and until we see that is definitely concluded and we do not know—we
are digesting the most recent court judgment of Weaver—how
this is finally going to conclude and until then I am afraid we
just have to hold fire. I am sorry that this creates even marginal
uncertainty but it is an important issue which is not going to
go away and we are committed to exploring it and I think that
any government is going to have no choice but to engage with it.
Q365 Lord Dubs: That is very helpful,
thank you. In the meantime, are you aware how many government
departments have had similar issues come before them, possibly
leading to litigation, about the scope of Section 6(3)(b) since
the YL case was decided?
Mr Wills: I cannot answer that
off the top of my head but let me try and find out for you and
I will write to you.
Q366 Chairman: I think also the number
of times they have faced amendments from the floor of either House
to try and clarify it as well would be helpful.
Mr Wills: I am sure that someone
somewhere is making a very careful note of these requests.
Q367 Chairman: When I raised this
in the Westminster Hall debate the answer was "soon"
and when I raised it on my Bill last Friday or whenever it was—the
Friday before—the answer was "soon". Nobody is
being very clear about "soon". If you are saying you
are waiting for the outcome of Weaver, which looks almost
certain to go to the House of Lords, that means another year.
Mr Wills: It may well mean that,
we do not know.
Q368 Chairman: A year is not "soon",
is it?
Mr Wills: I think it depends on
your timescale, with respect. When you look at how long these
great constitutional matters can take and how long it took to
pass the Human Rights Act, I think we are moving with proper dispatch.
It is completely open to us to say that we do not think there
is an issue here, but we have not said that. We are not opening
ourselves up heedlessly to this debate. I could have come to you
right from the beginning and said, "Look, we will deal with
this in this way and actually we do not think it is an issue;
we accept the House of Lords' judgment in YL and that is
an end to it." But we have not said that. All the way through,
when I said in evidence to your Committee—again I think
it was in closed session—you will recall that I said if
we could find a way of dealing rapidly with the mischief caused
by YL we would do so, and we did so. And in exactly the
same way we will embark on an investigation, a proper consultation
on the scope because we do recognise that these are important
issues, but we will do it as soon as we properly can do so, and
while Weaver is still not concluded we have no idea of
what the courts are going to decide on Weaver. This could
have been concluded by now in which case "soon" would
have fallen more within your definition rather than a geological
definition.
Q369 Chairman: Is it intended to
intervene in the Weaver case? If it goes to the Lords will
you intervene in the Weaver case?
Mr Wills: I think we have to digest
the judgment. It is very recent and we are still looking at it;
and it is not a matter for this Department, as you will understand.
Q370 Chairman: The overall point
about it is this: the initial response to this inquiry was that
the law is very clear and it is all very peripheral, but I think
we have demonstrated that is not the case. The Weaver case
goes to the heart of public housing in the sense that housing
associations are becoming increasingly the main providers of social
housing now and that is a very fundamental issue that affects
the lives of millions of people potentially, so it is an important
issue. The point about the G4S case, the transport of immigration
detainees, very fundamental human rights issues there. So they
are very, very profound issues and whilst we agree with you with
the approach of sorting out the YL case straight away,
that was on the understanding, which I think we all had at the
time that the rest would be looked at relatively quickly, and
now we are a year on and not much progress.
Mr Wills: Of course we want to
do this as quickly as we possibly can but there are all these
issues—and integrally tied up with the Green Paper—that
bring into play every single Whitehall department, for the reason
you say, that they are fundamentally important and affect the
way that every department does business—all these issues
do. Sadly, Whitehall does not make these decisions in three weeks.
You may wish that they did so and others may wish they did so
but they do not and often there are very good reasons for taking
time and having a proper cross-government deliberation—not
just discussion but deliberation—on these profoundly important
issues. We need to get it right and there are different views
on this issue about what getting it right actually means. There
are valid differences of opinion on these matters and they need
to be serviced, discussed, deliberated upon and agreed upon within
government. All governments operate like this and generally it
is prudent for them to do so.
Q371 Chairman: But three years to
make your mind up is an awful long time.
Mr Wills: With great respect,
it is not three years to make our mind up.
Q372 Chairman: It is since YL.
Mr Wills: It is since YL,
but we have dealt very swiftly with the immediate issues raised
by YL. The wider issues, which we have always accepted
needed to be dealt with, are complicated. I have just explained
in answer to Lord Dubs that originally our plan was that we should
incorporate the investigation into the scope of the Human Rights
Act into the Green Paper, which is now published; however, in
discussions on that we made a judgment that we did not want to
put the Human Rights Act into play because we thought that would
be destructive to the Human Rights culture in this country and
we thought that it would raise unnecessary and unwelcome question
marks about the future of the Human Rights Act, which is something
we are proud of and we think should be a fixed part of our constitutional
arrangements. We do not want that brought into question; that
was a judgment we made. When we made that judgment then of course
we had to look again at the question of how we best consult on
the scope and we have to take into account the interaction with
Weaver. The world is not a tidy place, I am afraid, and
we have to take account of it and it would be a mistake to get
this wrong.
Q373 Earl of Onslow: Just arising
out of that question, Mr Wills, I thought that when the Human
Rights Act was passed it was assumed that YL meant not
what the courts found it to be, so why do you have to go discuss,
discuss, discuss, discuss on something which I thought had been
agreed and you thought had been agreed in 1999 when the Human
Rights Act was passed?
Mr Wills: When you go back ten
years and ask people what they thought they had agreed sometimes
you get different answers. I am certainly quite clear about what
I thought I was agreeing to when I voted.
Q374 Earl of Onslow: So 1999 you
did not think—
Mr Wills: Sorry. People have different
views about this and, as I say, there are different views about
what the scope of the Human Rights should be—valid views
but they just happen to be different. That is the world and we
have to try to bring people to common understanding and we need
to know exactly the terms on which we are consulting and then
we need to consult. But at the moment, as I have explained to
you, there have been these two issues that we have had to deal
with: one was the scope of the Green Paper, and I have just explained
why that was an issue. You may say that we should have drafted
the Green Paper more appropriately right from the beginning and
that all my colleagues should have agreed with that initial draft.
I hold my hand up; I am sorry that we did not, but there it was.
Once we had that we then had Weaver and we have to see
what the courts say about this. We have to digest the judgment
and I think probably you would expect us to reflect on the judgment
and then make a decision rather than making a decision without
reflection. I hope you would think that.
Q375 Earl of Onslow: Let us move
on. In your submission to this inquiry you say, "Where necessary
government departments, after consultation with small businesses
and their representatives, should also provide information and
guidance on best practice." What guidance and support are
departments currently providing and can you give us some examples?
Ian Lucas: We have a broad policy
of supporting small businesses, indeed all businesses, through
the corporate responsibility agenda that we have. We want businesses
to adhere to the wide guidelines that we see applying not just
in the UK but beyond that. So we have, for example, adherence
to the OECD guidelines for multinational enterprises and voluntary
principles on human rights and security. We have support mechanisms
within government to assist business in developing their human
rights consciousness, if I can put it that way, so that they perhaps
take into consideration matters of dignity, respect and human
rights that they might not previously had considered as being
within their remit, and we think that that is an important part
of their role.
Q376 Earl of Onslow: How much uptake
by small businesses is there of this advice and how actively is
it promoted?
Ian Lucas: I mentioned the 2006
Companies Act earlier on, which is a statutory mechanism for making
companies address these issues within the approaches that they
have. I think that increasingly businesses are aware that they
have corporate responsibilities. Even in the short time that I
have been in post I have become aware of the commitment of businesses
in discussions with me to their corporate role, and also the perception
of their corporate role and responsibilities. It is important
that they are seen to do the right thing. As someone who ran a
small business myself, I think that one of the most important
aspects of any business is reputation within the community in
which you operate, and that is true whether it is a town or whether
it is a country or whether it is a global reputation. One of the
best ways that you can improve your reputation is to show yourself
as a company that has consciousness of the environment in which
you operate; that does things beyond its normal commercial remit
to assist the local community and to be seen to be behaving in
that way. I think that brings a commercial benefit as well as
doing the right thing, and that is a perfect solution as far as
I am concerned.
Mr Wills: Can I just add a couple
of points to that? I think that the CBI also provide guidance
in various forms, but part of the scoping research that we are
doing as part of the Private Sector and Human Rights Project will
actually investigate whether there is a need for further guidance
to businesses to better integrate human rights into their businesses.
So we are actively looking at this as part of this project.
Q377 Earl of Onslow: You say, "The
government believes that it is good practice for companies to
use the Human Rights Act as a framework in their business policies
and practices". Could you explain how and any examples of
good practice that you might want to give us?
Ian Lucas: The Human Rights Act
sets out fundamental principles that within the UK we would have
hoped for a number of years to have been adopted by business.
I think it is a useful reference document in terms of identifying
the rights that are central to our democratic culture within the
UK. It is a useful benchmark, if you like, from which to move
forward. We also need to look at ensuring that business takes
those rights much further forward and commits to the local area
in which they operate. I have very often encountered good practice
by business in their local communities working local communities
and taking forward individual projects for which they secure great
benefit.
Earl of Onslow: Do you intend to publish
the responses to your survey in full in order to allow for more
effective scrutiny of its results?
Q378 Chairman: This is the Ministry
of Justice survey.
Mr Wills: We are still not halfway
through this project and I am sure we will publish, but I cannot
tell you now until we have finished the project. We will certainly
be publishing something and will want it to be as open and as
transparent as possible.
Q379 Earl of Onslow: Has your scoping
exercise told you anything new on this so far?
Mr Wills: Yes. As I say, the conclusions
are still emerging but what is clear is that there is the desire
and ready engagement with the businesses taking part in this to
participate within human rights and, as I said earlier, they do
not always articulate it in human rights terms. But what is becoming
clear is that this is potentially fertile ground.
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