UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 112-i

HOUSE OF LORDS

House of COMMONS

MINUTES OF EVIDENCE

TAKEN BEFORE

JOINT COMMITTEE ON HUMAN RIGHTS

 

 

WORK OF THE HUMAN RIGHTS MINISTER

 

 

Wednesday 2 December 2009

RT HON MICHAEL WILLS MP and MR EDWARD ADAMS

Evidence heard in Public Questions 1 - 93

 

 

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Oral Evidence

Taken before the Joint Committee on Human Rights

on Thursday 3 December 2009

Members present:

Mr Andrew Dismore, in the Chair

 

Bowness, L.

Dubs, L.

Falkner of Margravine, B.

Morris of Handsworth, L.

Onslow, E.

 

Mr Virendra Sharma

________________

Witnesses: Rt Hon Michael Wills MP, Human Rights Minister, and Mr Edward Adams, Head of Human Rights Division, Ministry of Justice, gave evidence.

Q1 Chairman: Good afternoon, everybody. Welcome to the Joint Select Committee on Human Rights evidence session with Michael Wills, who is the Human Rights Minister at the Ministry of Justice. We are looking at the work of the MOJ Human Rights Minister. We will be joined shortly by Edward Adams, who is the Head of Human Rights Division at the Ministry of Justice. Do you want to make any opening remarks, Minister?

Mr Wills: If I may, Chairman. As I am not standing for re-election this will be my last session with you, I think.

Chairman: You never know!

Q2 Earl of Onslow: Will Lords Bowness, Morris and Onslow be seeing you again, do you think? Are you expecting elevation?

Mr Wills: Certainly not!

Lord Dubs: Some of us would like that.

Q3 Lord Bowness: It is not that bad!

Mr Wills: I do not think I have done anything to deserve that. Thank you very much for this opportunity. I think it might be helpful if I just set out briefly what has been happening over the last year. A lot of the work is continuing what we have been doing already and really this is just an update on what I have said in previous sessions. We are committed to embedding a human rights culture throughout Whitehall, and that work continues with the Senior Human Rights Champion Network that meets regularly at a senior level in the Civil Service. We think it has been successful as an enterprise so we are now seeking to replicate that throughout the United Kingdom's inspectorates and regulatory bodies. We have set up a forum, which is going to be co-chaired with EHRC, to provide leadership on embedding human rights within those bodies as well. We are reviewing the human rights guidance that we make available to public authorities to ensure that it is reaching the right people, is effective and up-to-date. As you know from my last appearance here, we continue to work on the private sector in human rights and have now published the scoping study that we discussed in our last encounter. We are now working with EHRC to make sure that dialogue continues. I think also, as this is what I think will be my last appearance in front of you, I would like to share with you what has happened, and it is a tribute to the officials primarily, I do not think ministers can take much credit for this. It is a tribute to the officials that my impression is, and I would welcome your impression as well, we have made quite considerable progress on legislative issues. I know in the past there have been issues about the quality of information provided and we have now made some really significant progress in this area. There are very large amounts of information provided by Government on the human rights implications of Bills, including in the Explanatory Notes. All Bill teams now receive individual support from officials in the Ministry of Justice to make this happen. I hope you will agree that there has been a significant improvement in this and I would just like to place on record my view that has happened and also my thanks to all the officials who make this happen day in and day out. As I say, ministers can claim little credit for any improvement, but the officials can do so and I would like to pay tribute to them. Finally, I would just like to draw the Committee's attention to the fact that we have begun, not with a lot of publicity, the exercise of deliberative events that I may have spoken to you about before on a possible Bill of Rights and Responsibilities. This has looked at this from various aspects, but essentially there have now been five regional events which have consisted of 100 people selected randomly but to be demographically representative of the population as a whole, and they have been broadly representative in that way, to deliberate, to discuss three main areas largely focused on a statement of values which the Prime Minister has committee to, which could form part of a preamble to any new Bill of Rights and Responsibilities. Quite a lot of time was spent on a Bill of Rights and Responsibilities: should we have one; what will it consist of; how will it be enforced; all questions that are very familiar to this Committee. At the start of each of these sessions the group were polled on key questions and then they had six hours of deliberation and were polled at the end of it. We are still digesting the results of all these events but we will be posting them and will be happy to write to you with the details of the results. If Members of the Committee have any particular questions on this I would be happy to address them as best I can. We have then had two further events which have been reconvened events, in other words they consist of a large number of the people who took part in the original events, to discuss these questions further having had the chance to reflect on them. There will be one further event in the New Year and then we will take stock and see where we are on this. The headline is that there is a real popular appetite, judged by these events at least, to discuss these issues and a very significant majority in favour of having a new Bill of Rights and Responsibilities. I should say we have made it clear throughout that this would not be a replacement for the Human Rights Act but in addition to it. With those remarks, I conclude my opening statement.

Q4 Chairman: Thank you for that. The first thing I would like to talk a bit more about is what you have just mentioned, the national debate. You said 100 people were involved, was that 100 at each of the five events or 100 in total?

Mr Wills: 100 at each event.

Q5 Chairman: What do you think you have learnt from these discussions?

Mr Wills: We have learnt that such deliberative events are very valuable, that people appreciate taking part in them. They have demonstrated the wisdom of crowds. People have engaged very vigorously and sceptically with all the issues. There is a real appetite for such a Bill of Rights. We are still digesting the results. There is a pretty strong appetite for entrenching in some way economic and social rights, although quite a wide range of opinion about how far they should be entrenched. I should say we need to be very careful about drawing too many general conclusions from this. As I say, this is demographically representative but we have to be careful about this and I would not want firm conclusions to be drawn politically and administratively from these events. They are a start of the process and reveal something that the Committee I know will be aware of, that these are very complex and difficult issues. The idea that the Human Rights Act is unpopular when people look at what it means I think is wrong and, therefore, as we look at the debate which will undoubtedly intensify as we come towards a General Election I do not think anyone need have any fear about robustly defending the Human Rights Act. I certainly will not have any such doubt.

Q6 Chairman: It has not come up with the same view that the EHRC findings did from their survey that 42% of people think it is all about criminals and terrorists?

Mr Wills: No. What happens when people think about these things rather than responding to one question is they come up with a very sophisticated answer and understand the importance of human rights. Of course people are worried by those sorts of stories in the press. In each event we went through a sort of myth-busting exercise with them asking them about certain stories that had appeared in the press, some of them true, some of them not true, as a way of getting them to engage about what human rights actually means as compared with the way they are perceived.

Q7 Chairman: How do you see taking this process forward? You have mentioned the follow-up meetings, but engaging with a few hundred people is not really selling it to the public at large. How do you think you can take it forward into the wider public arena?

Mr Wills: I do not want to speculate at the moment because we have got to digest the statistical evidence. That will be available fairly soon and I would be happy to come back, assuming I am still here, early in the New Year to discuss specifically going forward. Realistically, the next few months are not going to be taken up with the Government's view of a Bill of Rights but with the Opposition's version of a Bill of Rights which should, in their view, replace the Human Rights Act. There is quite a profound division between the Conservative Party and both the other main parties. I do not wish to speak for the Liberal Democrats, but my understanding is that they, like us, believe that the Human Rights Act is good legislation and should not be repealed. That is a political divide and certainly as a minister I shall be engaging very vigorously with the Conservative policy which I believe is profoundly mistaken.

Q8 Mr Sharma: You have partly answered that the Leader of the Opposition has made a statement that one of their pledges is the replacement of the Act. Is there a danger of the debate degenerating into a General Election fight about how best to replace the Human Rights Act?

Mr Wills: I think there is a danger. I am not trying to be politically partisan about this, but this is very irresponsible politics and, if I may, I will explain to the Committee why I think that. This is not a genuine division between the parties on ideology or values and there are, of course, differences between political parties, things like the size of the state and so on, and that is fine, but this is irresponsible politics. It is irresponsible because the Conservative Party have made it clear that they want to incorporate in some form the European Convention on Human Rights. If they wanted to de-incorporate that is fine, and if they wanted to resign from the European Convention that is their choice, but they would be profoundly mistaken. They do not want to do it, they have made it clear that they will incorporate, but in doing so and saying they are going to scrap the Human Rights Act they are raising expectations in sections of the media and the general population who wrongly, in my view, nevertheless believe the Human Rights Act is profoundly flawed legislation.

Earl of Onslow: Minister, the temptation to go Tory bashing is even quite strong in some of us Tories, but is it really necessary on this? I quite understand your point but we are actually asking you what your views are.

Q9 Chairman: I am chairing the meeting. I think it is fair for the Minister to put his point of view.

Mr Wills: And then by all means attack me on it! It is fair to say that in all the appearances I have made before this Committee I cannot remember a time that I have steered into politically partisan terrain.

Earl of Onslow: This is why I am surprised at your present behaviour.

Q10 Chairman: He was asked a question and he is allowed to answer it.

Mr Wills: If you will allow me to finish my case you will see it is not so much a politically partisan case, it is more a constitutional case, if I may. The point that it is irresponsible is that in practice expectations have been raised which will not be fulfilled. That is the point about this. If you incorporate the European Convention in some form or another you are going to get all the issues under that bit of legislation as arise under the Human Rights Act and nothing that an Opposition spokesman has said gives any reason to doubt that will be the case. The problem that you have got, as you rightly say, Mr Sharma, is we will have what in the end will be a sterile debate. There will be a debate about this, undoubtedly, but it will be sterile and it will do nothing for the democratic trust of the British people in their politicians. In the end, if there is a Conservative government and they do this, three or four years down the line they will end up in exactly the same place as we are and the task for all responsible politicians who believe in human rights and want to remain signatories to the Convention and incorporate the European Convention in some form of domestic legislation is to make the case for these rights and promote a human rights culture among everybody because that, in the end, protects the individual against the state and all responsible politicians actually want that.

Chairman: Do you want to put a different point of view?

Q11 Earl of Onslow: No. My difficulty is I happen to agree with the Minister. I think we would be wrong to scrap the Human Rights Act and I will say so to my party quite loudly. Whether they will pay a blind of notice to me or not is a totally different question.

Mr Wills: They certainly will not pay a blind bit of notice to me!

Q12 Lord Bowness: Minister, I am not sure that this question really is going to advance matters very far because it tends to refer to the debate which you have just been talking about with Mr Sharma. Perhaps I can put it this way: the Shadow Secretary of State made some statements in the autumn about Essex Police not being able to name and shame, and without going into the rights and wrongs of that, or whether he should or should not have said it, I think the response to that by the Secretary of State for Justice was to dismiss it as Tory "spin". I suppose my question to you is would it not be better for ministers to answer those sorts of statements by a detailed and factual response to establish why something is not a myth, if indeed it is not a myth, rather than perhaps politicising the whole thing still further?

Mr Wills: Yes is the answer to that. I am not saying that to criticise my boss because I do not know the circumstances in which he said that. All I can tell you is in all my experience of working for him he is meticulous in providing evidence, as you would expect from a former barrister, for everything that he says. You are absolutely right, of course ministers should engage. This should not be a matter for party political debate, I agree. We should engage with the evidence, with the facts, and where policy needs changing we should change it.

Q13 Lord Bowness: Are you able to give us some evidence of where Government ministers in particular have actually embarked on this? My recollection is, and, Chairman, you will correct me if I am wrong, that we produced a report not so long ago when either Mr Straw or Lord Falconer were suggesting that a review of the Act might be necessary to counter the effects of some of the decisions which had been made. I think this Committee took the view that it was just bad implementation and interpretation of the Act and not a case where the Act needed amending. We made the point at that time very clearly that these sorts of myths were like straight bananas in Europe, if you let it be said often enough people start to believe it.

Mr Wills: We try wherever we spot any misrepresentation of the way the Human Rights Act works to counter it. I write letters to the newspapers, our press office ring newspapers to try and educate them about this and ministers make speeches all the time, not that they get reported very much. We do go out and about saying these things. It is hard to quantify the impact of this. My impression is, even over the last two, two and a half years, that the kinds of misrepresentations in the press are declining. I think the Media Trust have just put out a report by Jon Snow, and I am probably paraphrasing here, where he read the foreword and he said something like, "It's hard to overestimate the degree of ignorance among the press about the Human Rights Act". That is largely correct. My impression, however, is that it is getting better, that every time we ring up and correct the myths about Dennis Neilson or gay pornography or whatever it is, there is just a little bit less of it next time. It still comes up from time to time, but we try to counteract it wherever we can and will go on doing so. It should not be party political. The substance of all the main political parties agree on a necessity for having some protection for human rights, they agree that there should be incorporation in domestic legislation and there should not be a party political divide about this, these rights are too precious and too important for that.

Q14 Lord Morris of Handsworth: Minister, in Australia the National Consultation on a Bill of Rights for Australia has recently recommended that Australia should have its own Joint Committee on Human Rights. What role do you see for Parliament and parliamentarians in any future human rights settlement, whether under a Bill of Rights for the UK or otherwise?

Mr Wills: It is not really for me to say, with respect, what Parliament should do. I think ministers have to be quite careful about that.

Q15 Lord Morris of Handsworth: You do have a point of view.

Mr Wills: I do have a point of view.

Q16 Lord Morris of Handsworth: Share it with us.

Mr Wills: I will give you my personal point of view. Personally, I think the sort of scrutiny that the Joint Committee provides, the way we are held to account, not only by this Committee but by others, is very valuable for us and I would like to see that continue. Where we go beyond that, forgive me, I should not trespass on constitutional grounds but I am happy to share my views privately on another occasion.

Q17 Earl of Onslow: From your perspective as Human Rights Minister, is the EHRC doing enough to fulfil its human rights mandate? It has come in, not unreasonably I think, for a certain amount of stick recently. As you know, we have been hearing evidence about it.

Mr Wills: Yes.

Earl of Onslow: To this particular member of the Committee it appears that its senior ranks are split all over the place and it seems to be malfunctioning, but I may be speaking out of turn. That is the impression I get.

Chairman: We have not finished taking evidence on the whole issue yet.

Q18 Earl of Onslow: As my Chairman rightly reminds me we have not finished taking evidence yet, but the first evidence is very strongly along those lines.

Mr Wills: As you will be aware, my Lord, I am not responsible ministerially for the governance of the EHRC, so if you will forgive me I will not address myself to that. For that, you will have to address GO ministers. However, in answer to your first question my answer is no, I do not think they are doing enough to promote human rights and the Human Rights Act. We have made our views clear on that. We will encourage them to carry on fulfilling their statutory duties to do that, but I have to say we were disappointed in their response to the good report that was produced earlier this year. It is too full of aspiration and too light on what I would call concrete goals that can be delivered within a specified timeframe. We are actively working in good spirit and in good faith on all sides with the EHRC to add some meat into that particular offering.

Q19 Earl of Onslow: Can you give us some examples of the chops and sirloins which you are wishing to add to this?

Mr Wills: I think we can indicate in broad outline that we would like their strategy to be more specific, more detailed and to set out clear timeframes within which their objectives are going to be delivered. Beyond that, this is a matter for them. They are independent, and should be so, and they should work in that spirit. What we do want to see is some detailed engagement with the issues, and I am afraid we have not seen that yet, but I am confident that we will. We have expressed our views at official and ministerial level and my impression is that the EHRC are actively engaged in addressing our concerns. Although we are disappointed up until now, I am confident that we will cease to be disappointed in the very near future.

Q20 Chairman: Just building on that, we had this inquiry into human rights by the EHRC that took a year effectively. Do you think that was a useful exercise? Do you think it taught us anything we did not already know?

Mr Wills: The inquiry?

Q21 Chairman: Yes.

Mr Wills: Personally, I thought it was a very useful exercise. I gave evidence to it and was impressed by the questioning and thought it was a useful exercise. It went into a lot of areas that needed to be gone into in public service delivery and the impact that human rights can have on that. I thought it was a useful exercise, yes.

Q22 Chairman: What was new that came out of that that has not already come out of work that either you or we have done, for example?

Mr Wills: There was nothing that was revolutionary about it or in some ways unexpected but, nevertheless, to have distinguished thinkers looking at this systematically over a period of time taking a wide range of evidence and pulling it together was a very useful exercise. We may look at it and think, "Well, I knew that already and I knew that already", but to bring it altogether in what was a fairly authoritative, thoughtful piece of work was very valuable, I think. I am not sure that I would agree with any implication that having distinguished, thoughtful people deliberating on these things and coming up with conclusions is not valuable; I think that is always valuable.

Q23 Chairman: Perhaps we can look at some of the conclusions. Some of the conclusions and recommendations are pointed at the Government. What are you doing to consider those and implement them, if you agree with them?

Mr Wills: We do not agree with everything, but we are considering them very carefully and moving forward as I have already suggested we are going to move forward.

Q24 Chairman: How are you taking it forward? Give us some examples.

Mr Wills: We have certain responsibilities in promoting human rights and, indeed, in defending the Human Rights Act. We, the Government, taxpayers, are spending a lot of money on the EHRC to fulfil its statutory duties: to promote human rights and the implementation of the Human Rights Act. We expect them to do that. When you point the finger at Government, that is fair enough, and we are doing what I have said we are going to do, but as part of the process that Lord Onslow referred to we now need to make quite clear that we expect the EHRC to do their job on this. That is where I think the focus should be. We will do our job and will continue to do our job in the way that I have outlined, but I would not want any attention to be deflected away from the proper role and function of the EHRC on this.

Q25 Earl of Onslow: Something has come to my notice recently and I have got a motion down in our House on Monday on the operation of the Proceeds of Crime Act which originally the Government said that either a policeman or customs officer or anybody else who is named by the minister, and nobody noticed this third clause was particularly broad and allowed the Government to put another 25 people down, I think. That is not the exact point I am raising because that is going to come up in the debate. In the Statutory Instrument it said, "We do not have to comment on this from a human rights point of view". My interpretation of human rights is the gross increase of the power of the state should be resisted. How do you answer that? I accept it is very technical and it has taken me three days to get my head round the whole thing.

Mr Wills: I am afraid I will have to write to you about that, my Lord, I am just not sighted at all on that.

Q26 Earl of Onslow: I understand that, but it is an important point.

Mr Wills: On your fundamental point of principle about the onward encroachment of powers by the state, of course they must be resisted.

Earl of Onslow: On the Statutory Instrument it said ---

Q27 Chairman: Hang on. It is very technical and detailed and it is not his Department.

Mr Wills: I will write to you, I am afraid I am just not sighted on it.

Chairman: It is a Home Office issue. It is a question you should have asked yesterday.

Earl of Onslow: I know, but I had not done my homework yesterday.

Q28 Mr Sharma: Minister, it is generally not clear what is the division of responsibilities between the EHRC and the Government, for example who counters media myths about human rights. Do you think more should be done to clarify the respective responsibilities of the Government and the EHRC?

Mr Wills: No, I do not think so. They are actually clear, although, as with all these things, always in Government there is going to be blurring around the edges. As you will be aware, the Ministry of Justice is responsible for the Human Rights Act itself, the legislation, the development of Human Rights policy generally and we provide advice throughout Whitehall on the application of the Human Rights Act and, indeed, the European Convention on Human Rights and do all the other things that I have already outlined. The EHRC has a statutory duty to promote equality and human rights and has, as it were, the lead responsibility for promoting the culture of human rights, which we have discussed on several occasions as being fundamental. Inevitably, ministers cannot remove themselves from that work of promoting culture, but we are politicians and we are tainted goods really and our ability to be able to persuade people outside is always going to be limited. It is far better that this work is led by an independent body and independent non-political figures who, better or worse, are more likely to command credibility and do a better job of promoting that culture. It is not to say that I will not stand up vigorously and do what I can, I will, but it is better that the EHRC take the lead on this and, as I have said - I am trying to avoid a cliché - are now stepping up to the plate.

Q29 Mr Sharma: What sort of dealings do you have with the EHRC and do you meet Trevor Phillips regularly?

Mr Wills: I do meet Trevor Phillips regularly and I will continue to do so. I met the Human Rights Commissioner regularly and now a new one has been appointed - an excellent appointment if I may say - I have asked to have a meeting with her as quickly as she is available; and I will continue, I hope, to meet her regularly. I very much hope that she will want to do that and I certainly do.

Q30 Chairman: What input did you have into the reappointment of Trevor as Chair? Did you discuss it with Harriet and Maria?

Mr Wills: It is not my responsibility.

Q31 Chairman: So you had no input at all into Trevor's reappointment?

Mr Wills: No; but nor would I expect to. This is not our ministerial responsibility.

Q32 Baroness Falkner of Margravine: It is interesting you say that. You must have a view on the appointment of the Commissioners, surely? Or is that not your responsibility and you therefore do not take an interest in who is appointed?

Mr Wills: I have a view on everything I am afraid to say, and of course I take a keen interest in it but I have no ministerial responsibility for it.

Q33 Baroness Falkner of Margravine: Do you articulate your view in any sense to Trevor Phillips or others in terms of the appointments?

Mr Wills: No. The first I knew about whom the new appointee was was when I was informed I think 24 hours beforehand; but I would not have expected to have any input either.

Q34 Baroness Falkner of Margravine: I was referring to the Commissioners - forgive me if there is a misunderstanding. Eight out of the 15 Commissioners, the board, are new. Did you have any discussion of criteria and express any views in any sense on who they were?

Mr Wills: No.

Q35 Baroness Falkner of Margravine: But you would have your view on them.

Mr Wills: As I say, I am afraid I have views on everything and in this particular case on the appointment my view is that it is an excellent appointment and I was delighted and I would have said that if I had been consulted, but I was not. Nor would I expect to have been; I would not expect to have been consulted and I was not consulted.

Q36 Baroness Falkner of Margravine: I think I am slightly confused!

Mr Wills: Sorry.

Q37 Baroness Falkner of Margravine: It may be my fault; I am new to this Committee and I am also new to this inquiry, forgive me. I am actually talking about the number of new appointments.

Mr Wills: I am the Human Rights Minister; I do not have responsibility for disability or anything else - I am Human Rights. So the previous Human Rights Commissioner resigned and a new one was appointed. In that process I was not consulted and I would not have expected to have been consulted but I think that the lady who was appointed is an excellent appointment. That is my personal view.

Q38 Baroness Falkner of Margravine: I find it rather curious that you see human rights, which surely is a cross-cutting theme, in terms of the Equality and Human Rights Commission as very narrowly defined. I would have expected the Ministry of Justice to take a position overall on the suitability or otherwise of Commissioners per se, and not just the Commissioner who wears that particular hat. But can I move on - I will accept what you say, and perhaps other people will come in - and suggest that there are eight members of the Labour Party out of 15. There is one Liberal Democrat but there does not seem to be anyone who we can identify as Conservative. Would you accept that the Equality and Human Rights Commission perhaps looks like it is captured by one particular political group? And even if it is a perception with which you do not agree, would you accept that people might rightly have that perception?

Mr Wills: On this I have to confess my ignorance. I am just not aware of the party political complexion of the Commissioners. Speaking from memory I have no briefing on any other of the Commissioners. Just to go back to that particular point, government does sometimes look fairly arbitrarily divided up, but it just is; and, as it so happens, responsibility for the EHRC corporately falls to the GEO; it does not fall to the Ministry of Justice. It could have fallen to the Ministry of Justice perfectly logically, and perfectly logically it could have fallen to the GEO and the decision was taken not by me that it should go to the GEO, and that is where it is. So I only get briefing on the Human Rights Commissioner. As far as I am aware I was not told whether or not she was a member of any political party and I do not know. I just do not have the knowledge that you have on this. I am sorry; I should have but I do not. In terms of is it a good idea to have cross party people involved - of course; and the broader the political base for independent bodies like this the better under all circumstances always. It is not always possible and I have no idea how the selection process was conducted, whether it was, as it were, party political blind, which it might have been - I just do not know.

Q39 Baroness Falkner of Margravine: I do not think it would have been.

Mr Wills: I do not know. I can find out and I am happy to come back to you about the process but as a matter of broad principle what you are saying - and I would agree with - is that these appointments should be party political blind; there has to be a degree of expertise and experience in the particular areas. It may so happen that what emerges out of that process is a particular skew to one political party or another.

Q40 Baroness Falkner of Margravine: In the spirit of lessons learnt from this are you perhaps likely to suggest to your colleagues in the government equalities office that they may perhaps be slightly more open to this kind of information and knowledge and perhaps act to counter these perceptions because human rights, of course, is the ownership of all citizens and not just a particular creed or ideology.

Mr Wills: As you have just discovered I am shamefully ignorant about the selection process so I had better inform myself before I make any further representations on it, but I will inform myself.

Baroness Falkner of Margravine: Thank you.

Q41 Lord Morris of Handsworth: Minister, you will be aware that the Supreme Court has refused permission to appeal in the case of Weaver. Can you now set out the government's timetable for action in respect of clarifying the meaning of public authority under the Human Rights Act?

Mr Wills: As you know this has been a continuing subject of great interest to us and indeed to you and others and clearly this is a very difficult issue for us. My understanding is that the Supreme Court indicated, although they refused leave to appeal in this particular case, that they are anxious to get an early opportunity to these issues. As you know, we have said that we will go out to consultation. I have explained on previous experiences here why we have not yet done so; the whole history of the Green Paper on rights and responsibilities and, I am afraid, the inevitable ins and outs of all this. I think given that the Supreme Court has made it clear that they want to have a look at it - and clearly if that happens and I assume that it will happen - at the earliest opportunity, which I think is the wording they have used or something similar, that could have a huge impact on this. This whole debate was sparked off by a decision of the Law Lords in YL and we must assume that if they look at this area again that whatever they rule will equally have a huge impact and I think it would be imprudent and hasty to go out to consultation until we have a better idea of what was going to come out of that.

Q42 Lord Morris of Handsworth: Has the Department received any representations since the decision of the Supreme Court?

Mr Wills: We were certainly aware of it and I am not sure. Edward, have we received any representations?

Mr Adams: I do not know of any representations that we have specifically received, no.

Q43 Chairman: Can I just come back to this? Has the government now effectively abandoned the original intention as expressed by the then Lord Chancellor when the Human Rights Act was enacted that it should apply to private bodies performing a public function?

Mr Wills: No, we have not abandoned that at all, although we have been trying as a result of our continuing work on this to fathom out what exactly Parliament intended at the time - it is not as clear as it might be, I have to say. As I have said to this Committee before there is a clear issue here and I know, Mr Chairman, that you and the Committee equally take a very strong view that that is the case and that this needs to be resolved one way or the other so that there is clarity here. It is in no-one's interests that a lack of clarity should persist. But for various reasons we have not been able to get to a point where we can bring that clarity with any certainty and in all honesty I think it is going to be a long process whatever happens. It is certainly going to continue long past my time in Parliament.

Q44 Chairman: It has been a pretty long process so far since the YL case and of course the ones before YL when it all started to unravel. So why is it taking so long to form a view on an issue which is actually relatively straightforward when you think about it? The question is: if the government, if a local authority, if a health service commissions services that it is statutorily required to provide from a private body to provide those services, for whatever reason - privatised or contracted out - why should not the people who receive those services have the protection of the Human Rights Act as against the provider? A simple question.

Mr Wills: I agree with you that it has taken a long time. I am afraid I do not agree with you that it is a simple process - it is not; it is very difficult.

Q45 Chairman: What is complicated about it?

Mr Wills: I would refer you to the judgment in YL, which was a three to two split, so the extremely learned Law Lords who are far more intelligent, sophisticated and knowledgeable about the law than I am certainly did not find it relatively simple or straightforward.

Q46 Chairman: But it is for Parliament to decide, is it not? The Law Lords' job is to interpret the law and it is for Parliament to write the law.

Mr Wills: I was going to go on to remind the Committee of the reasons that it has taken this particular government, this particular minister the time that it has taken. You will recall that the original intention was to include as part of the consultation on the Green Paper on rights and responsibilities a consultation on this ---

Q47 Chairman: Actually the original intention goes back before that. When I first introduced a Private Member's Bill I was promised a solution by Christmas and that was three years ago, four years ago?

Mr Wills: Yes. I was referring to this government under this Prime Minister with this Human Rights Minister, which does predate your Bill.

Q48 Chairman: I was talking about your predecessors, I suspect.

Mr Wills: I know but I am answering for myself. I am sure that they would be delighted to come back and answer for them as well but I am answering for myself and, as you know, I have not sat on my hands on this particular issue; I have done what I felt I could do to try to advance it. In the particular case of YL we did deal with the mischief that we felt was created by that and we dealt with it as pretty expeditiously as we could. I gave that commitment to your Committee that we would do that and we did do that - I did do that.

Q49 Chairman: I fully accept that the specific problem created by the YL case in relation to care homes was dealt with.

Mr Wills: And dealt with expeditiously.

Q50 Chairman: And I would not argue with that. The issue is the wider application of the generality. We have just seen another case in Weaver where it has all had to be argued through again and there will be more and more and more of them.

Mr Wills: I was trying to explain - and I have explained on previous occasions. As I said, the intention was that we would include the consultation on how we should define public authority and with great respect this is not quite as simple as it seems. There are all kinds of different ways of approaching it; the Freedom of Information Act approaches it one way and there are lots of different ways that this could be approached. Lawyers will find lots of different ways to define it and each of those ways actually have consequences. We have to be very clear about an issue which is (a) as important as this, and (b) as far reaching as this that we do not create unforeseen consequences, perverse consequences which no one would actually want.

Q51 Chairman: Like what?

Mr Wills: If I may finish the point? That requires a consultation which is going to be far longer and deeper than the usual statutory Cabinet Office of 12 weeks. How we do that is a matter for debate as well. My original intention, just to answer one of your previous questions, was that we would consult on this in the context of the Green Paper. As it turns out we made a judgment - I made a judgment shared by my colleagues - that we did not want the Human Rights Act to be a subject for deliberation for the reasons that I mentioned earlier, and I will not upset Lord Onslow by going back to them. But we made that decision, as I have explained to the Committee before. This meant that we had to have, as it were, a stand-alone consultation and that is still our intention. However, it is also the case that the legal context is shifting. The mere fact, in my view, that the Supreme Court has made this indication, and although they refused the right of appeal in the case of Weaver none the less specifically said that they wanted an early opportunity to consider this, tells me that we would be wise to wait for them to do so because it could have a dramatic impact on the nature and scope of the consultation and, indeed, the nature and scope of any eventual decision. It is not easy. I understand your impatience, Mr Chairman; I do understand your intense frustration and impatience and if I was sitting where you are sitting I would be even more frustrated ---

Q52 Chairman: Is this not putting the cart before the horse?

Mr Wills: ... but things are not sometimes that simple or tidy - I wish they were, but they are not.

Q53 Chairman: I have yet to hear what is complicated about the issue other than it is complicated. Give me an indication of one of the complications - just one.

Mr Wills: What we want to make sure about, for example, is that we do not have perverse consequences.

Q54 Chairman: What?  Give me an example.

Mr Wills: I was just about to go on and give you an example. What I was going to say was that we are talking here about the provision of public services. We have to make sure that there is no perception that the provision of public services would be rendered more difficult, more expensive for the provider by bringing it within the ambit of the Human Rights Act. It is my own view, strongly, that the application of the Human Rights Act and, profoundly so, the principles of human rights of dignity and respect improve the service delivery of public services, and therefore it is a good thing; and the evidence that we have, some of the evidence that the Department has produce and others show that that is the case. So I am not worried about this myself, but I am not the only player here and we have to be extremely careful that rightly or wrongly, accurately or inaccurately we do not discourage providers of public services from continuing to do so. For example, the other complication is, with all respect - and I know you are a distinguished lawyer, Mr Chairman - all the legal advice I have had is that actually defining this in a way that is not subject to perverse consequences and does not give rise to endless litigation is quite complicated.

Q55 Chairman: Baroness Hale pointed the way and that was picked up in the last version of my Bill.

Mr Wills: I will happily study it again and I am very happy to write to you about the issues that it gives rise to.

Q56 Chairman: Before I bring colleagues in, does it not actually amount to this: that what is going on is basically you are pandering to the private sector here who are worried about that somehow they are going to have these appallingly heavy duties on them which is yet another myth that the government has failed to bust?

Mr Wills: I have just tried to say that whether you think that people are mistaken or not will transpire in the course of time. What we have to make sure about is that provision of public services will not be disrupted or interfered with in any way. That is one of the issues; it is not the only issue. What we are actually talking about here is a process point - not a point of principle or anything else. The real reason right now is to do with what the Supreme Court has said. I have no idea when they will be able to look at this case but it will be in the near future. Even if they did it tomorrow and we were clear about what their view was this process of consultation is going to take some considerable time, I am afraid. It is going to long outlast me. I understand your impatience but I think everyone is going to need to be a little bit patient for a little bit longer.

Chairman: I have to say that it sounds to me like prevarication.

Q57 Lord Morris of Handsworth: I wonder what the difficulty is because there are two principles here. One is to provide a duty and the other is a service user or consumer rights. Why it is taking so long for some sort of basic guidance to be issued defies understanding.

Mr Wills: There are several issues here. The first is the scope; how we define public authority is more complicated than it might seem. The Freedom of Information Act does it in a very simple way because it designates it; it says, "This is". The Human Rights Act takes a different view and it is a view that is subject to interpretation by the courts and the courts have interpreted it in a way that was actually frankly a surprise to government. That is what has happened. Maybe it should not have been a surprise but it was a surprise and that has created consequences. When you look at legislation we should always - we do not always but we should - make sure that we know what the consequences of legislating any particular area are. Of course, private sector providers are going to be worried about extra burdens put on them; it is not unreasonable of them to be worried about this. Having run a small business myself I am very conscious of all the strains and pressures on providers of services. It is not something to be deplored, it is just a fact of life; it is the way that they are and all of us would be if we were in their position too - and I have been in their position and I was like that. It does not mean that we cannot legislate because they are worried about it, but what we have to make sure is that we do not worry them so much that they stop providing services. We can demythologise it but we have to be careful how we do this. We do not want to see, as I say, the delivery of public services interrupted. There are a large range of government departments who have a large range of views about this and all of that has to be taken into account and we will move forward on this. I just cannot ---

Q58 Chairman: So when do you expect it to happen?

Mr Wills: With all respect, Mr Chairman, can I just finish the point and then I am happy to answer the next question. I just cannot tell you when.

Q59 Chairman: Are you seriously expecting the private sector providers who contract government or local authority services to go on strike because the human rights are not applying to them?

Mr Wills: I have no idea.

Q60 Baroness Falkner of Margravine: I should declare an interest as a director of an RSL of the Hyde Group. Let me see if I can help you a little bit. There are two things here I think that are extremely pertinent to the decisions that you take. One is of course the new regulatory regime and the establishment of the TSA, which does provide guidance - copious guidance as I can see it. Are you by any chance waiting to see how this new regulatory regime also beds down? The other point is of course the complexity of these organisations in that the range of services that they offer are now extremely complex and is that part of the issue that makes you wait to see, particularly the funding regime, in light of borrowing on money markets and capital markets, and the increasing production in grant and how those bodies, RSLs, change year on year in terms of their business plans and how that grant giving also changes?

Mr Wills: The latter is a very good example, a microcosmic example of the sort of complexity with which we have to wrestle. It is not just in relation to RSLs - this is across the provision of public services. The reason that this has become so salient is because obviously increasingly public services are not provided centrally, they are contracted out to a whole variety of providers, a whole range with different corporate structures and, as you say, different funding arrangements and it is very complicated nowadays. It was not 30, 40 years ago but it is today. That is part of the problem. I have no idea whether they are going to go on strike. You put it in - if I may refer to the Chairman's reference - lurid terms inviting me to disagree with you that they are not going to go on strike, but I have no idea. It is not a question of whether they go on strike or not; it is whether you see even a ten per cent reduction in the provision of services or different ways of approaching the provision of services. There is a whole range of responses that providers of these public services could take and we have to be sure that we do not get perverse consequences. It is just worth saying that the users of these public services are not unprotected; we are talking about a very specific form of protection which, as I have said, I think is important. But I would not want anyone who reads this exchange to think that anyone who uses public services at the moment provided in this way is somehow unprotected - they are not.

Chairman: Let us just be clear about that and then I will bring in the Earl of Onslow. The point about the present position is that because of the uncertainties there is an argument to say that you cannot direct or enforce your human rights against the provider - you may be against the contractor, i.e. the local authority or the government department, but that is a very indirect route to try and deal with a very specific problem.

Q61 Earl of Onslow: What you seem to be saying - and I may have misunderstood you - is that it is financially disadvantageous to a private company working for the government or a local council to be human rights compliant. It is, however, essential ---

Mr Wills: No.

Q62 Earl of Onslow: That is what I thought you said; that there were extra burdens on the private sector for doing it. That means that if you are not putting these burdens on the private sector you are putting them extra on the public sector and that must be wrong, surely? If a local authority provides housing directly in the form of council housing and it is subject to human rights so should anybody else who provides a service which is statutorily established, be it drains, housing or anything like that. If the state is obliged to do it so should agents of the state be obliged, and it seems to me a no-brainer and I cannot see the complications.

Mr Wills: First of all, I went out of my way to say quite explicitly that I think a human rights culture, human rights obligations improve the delivery of public services and they should not impose any additional financial burden on a well run properly managed provider of services. That is my view. My view may not be shared by some of these providers of public services and we need to be very careful that they do not decide to withdraw from the services. These are decisions that are not taken by my department, incidentally, but by the responsible departments and there are several of them within Whitehall and you may want to ask them for their detailed position on this.

Q63 Earl of Onslow: I am guessing that Lord Mandelson is not allowed, is he?

Mr Wills: The other point that you made, which was about the easiness of the scope is absolutely not. Baroness Falkner has just said it precisely, given a very good microcosmic example of some of the difficulties of defining exactly how the scope should be defined. It is not easy. All the advice that I get is not the advice that you, Lord Onslow, and Mr Chairman, seem to be getting, that it is legally very straightforward. My advice is that it is not.

Q64 Chairman: Maybe we should be thinking about whether we want to have as our contractors people who are not prepared to accept the responsibilities of the Human Rights Act towards their clients.

Mr Wills: Of course we should but in the meantime, given the complexity of the way that we provide public services, we do need to be careful that the users of these services are still able to have them provided. Our concern should always be with the users. The final point I would say is that of course you are right about the legal position there but there are other protections other than human rights' protection. I would not want anyone to think that these users of public services are not protected, because they are.

Chairman: We can argue about the extent of that public protection, which is what the YL case was all about. Just a quick point on the consequences of the Weaver judgment: will you be issuing guidance to RSLs at the same time to users of RSLs, i.e. their tenants, about what the implications of the Weaver judgment are?

Mr Wills: I am not sure that we will be doing that.

Mr Adams: That will be a question for CLG to consider if they think that guidance is necessary and I am sure that if they do they will consult us.

Q65 Chairman: Will you consult them?

Mr Wills: We will get an answer for you and we will write to you, or CLG will write to you, as appropriate.

Chairman: Thank you.

Q66 Earl of Onslow: The government has rejected our recommendation that the Ministry of Justice should adopt a coordinating role for responding to adverse human rights judgments. What practical steps have you taken at the Ministry of Justice to ensure that government departments effectively implement human rights judgments? It is, incidentally, depressing to think that one government department reacts in a different way to another. Some are keen and some are not so keen. I thought that joined-up government was what everybody was supposed to aim for.

Mr Wills: Edward, do you want to respond to that?

Mr Adams: Initially, before I do, can I apologise to the Committee for being slightly late to the hearing? There was a traffic disruption in Parliament Square. Could I also in response to what the Minister said at the very outset of the hearing pay tribute to him and to the very strong political leadership that he has delivered in the management of human rights in the time that he has been Human Rights Minister, without which, of course, we as civil servants would have had no traction.

Q67 Earl of Onslow: Are you angling for a "K"!

Mr Adams: No!

Q68 Chairman: He has to go up the tree a bit yet! I should say, Edward, that we have really appreciated our relationship with you as well because I think you have worked very closely with us over the years.

Mr Adams: Thank you very much; that is very kind of you, Chairman. On this coordinating role for the implementation of judgments it is not a question of saying that we have no role in the Ministry of Justice because we clearly do; but, on the other hand, when an adverse judgment is issued against the government it does actually impact upon the department and the minister responsible for that department in that particular area; and because these decisions are not purely administrative there can be big political choices to be made, and those have to be in the hands of the minister responsible for that. To take an example at random, the Marper case has been a very salient recent example.

Q69 Chairman: I am going to ask you some questions about that shortly.

Mr Adams: You may. But just to keep it at a very general level about Marper it really is not actually for the Ministry of Justice ministers to be deciding what the policy is about because that is the fundamental responsibility of the Home Secretary. It is our job to make sure that we keep the pressure on, to keep asking them, "What are you doing? How far have you got? What is the next stage? Anything we can do to help?" And to keep supporting them and also to an extent holding them to account to make sure that they do respond in a timely way to adverse judgments both in Strasbourg and in the domestic courts. Having done this job for a while now that feels about right to me actually.

Q70 Earl of Onslow: What you are basically saying is that you do do it; that you do keep tabs on those judgments and you ring up Lord Mandelson and say, "Will you get off somebody's yacht and pull your finger out and react to this judgment against you?" I am using this story totally metaphorically, you understand!

Mr Adams: We do keep tabs and we do ring up his civil servants rather than the Secretary of State himself. We might be in danger of arguing about the meaning of words here. Whether that is a coordinating role, I am not sure; I would pitch it just slightly below a coordinating role. But it is a role of holding the rein, making sure that progress is maintained across the whole of the piece and that we continue to uphold our international obligations in relation to the European Convention.

Earl of Onslow: That seems quite satisfactory.

Q71 Chairman: In that case can I ask you about Marper and the extent to which you have been tracking Marper's DNA through the bureaucracy, I suppose - the bureaucratic DNA. We have now seen the government's announcement about what it plans to do in relation to retention of DNA. Do you think that these are proposals are compatible with the presumption of innocence under Article 6 and the respect for an individual's private life under Article 8?

Mr Wills: It is our view that it is compatible, yes; otherwise we would not be proposing it.

Q72 Chairman: How are you going to make sure that those who have not been convicted and wish to have their DNA removed have access to an independent appeals mechanism, which is what, for example, the Human Genetics Commission recommended?

Mr Wills: I am always happy to answer questions on anything; I just feel that you probably need to ask the Home Office as it is their responsibility - it is their policy and their responsibility. I am happy to talk about the general points of human rights but I think I would be straying dangerously into other ministers' territory. It is not that I want to evade these questions at all and what I will undertake is to try and get an answer for you from the appropriate minister.

Q73 Chairman: The other issue really is the DNA issue related to children, which has been very, very controversial - children who have not been convicted of any crime, or even charged with any crime. Do you think that it would be appropriate as Human Rights Minister for this to be prioritised as an issue that needs resolving pretty quickly?

Mr Wills: As Human Rights Minister I am absolutely sure that the Home Office Ministers are dealing with this with great diligence and vigour and rigour.

Q74 Chairman: Really! In that case why do we have to keep going on and on and on about it to try and get anything done?

Mr Wills: I do not know.

Q75 Earl of Onslow: Minister, you are immensely disarming in many ways!

Mr Wills: But?

Q76 Earl of Onslow: But just grinning while you gave that answer almost answered my question for me. If you are Human Rights Minister this concept of maintaining DNA samples in the way that the government is doing - and unlike the way in which we are statutorily bound on fingerprints - I think that that is such a cardinal human right error that the Human Rights Minister ought to be in this up to his neck fighting this corner, saying, "I am Human Rights Minister and you in the Home Office are not doing the right thing." Surely it must be your bag otherwise you are not Minister for Human Rights.

Mr Wills: I think you have raised a very important point there, if I may say, because it goes to the heart of the way that human rights operates in the world. One of the key concepts is proportionality. The Court did not find that holding a DNA database was in some way in breach of fundamental rights; what it found was the way that the UK Government was implementing or managing this database was not proportionate. Therefore, the changes were made in trying to bring this in line with the Court's ruling and to have what in the Court's view would be a more proportionate approach. There are very few human rights which are absolute and it is fundamental to the way that human rights operate in the world that proportionality is a key. There are three concepts that are fundamental to human rights - dignity, respect and proportionality, in my view.

Q77 Earl of Onslow: But as Human Rights Minister, surely if there is a doubt or a cusp you come down on the side of human rights? At least that is what I would interpret to be a duty of the Human Rights Minister.

Mr Wills: I am sorry, what I was trying to suggest was that often these are not questions that this is in defence of a human right or in breach of it; it is often the question of a fine judgment either side of the line. It is not a breach that the Court has found - not a breach of human rights that the DNA database should be maintained. It is worth just pointing out that one of the values of the DNA database is that innocent people who have been convicted should be released.

Q78 Earl of Onslow: There is no doubt that the use of DNA has helped both in clearing the innocent and convicting the guilty - nobody is denying that.

Mr Wills: So the question really is: is it being applied proportionately? The UK Government had one view, the Court took a different view and we have adjusted our approach accordingly in the way that we believe is compatible.

Q79 Chairman: Let us move on. Before I bring in Baroness Falkner there is one further question from me, going back to the theme that the Earl of Onslow was raising earlier. Have you provided any further guidance to departments over the last year on how best to implement human rights judgments?

Mr Wills: I think we will have to write to you?

Mr Adams: I do not think generally, no.

Q80 Chairman: If you have can we see it?

Mr Wills: Of course. We will find out and come back to you.

Chairman: Baroness Falkner - and this is in your department's domain.

Q81 Baroness Falkner of Margravine: I would like to move you on to prisoners' voting rights. You have carried out a second consultation and this closed at the end of September. There is no timetable as yet as to when you are going to come up with legislation. I wonder whether you can tell us when you plan to publish the outcome of your consultation and whether there is any timeline that might comply with the need for a general election in 2010. In other words, will prisoners have voting rights by the time the election is called or will we continue in the UK to be in breach of the judgment in Hirst?

Mr Wills: No. We are very conscious of the need to bring this matter to a close. It is very difficult and the fundamental difficulty is that there is cross-party consensus and has been for many, many, many years that prisoners should not be enfranchised.

Q82 Baroness Falkner of Margravine: Forgive me, that is not the case at all.

Mr Wills: I am sorry, across the two main parties I should say. I beg your pardon, you are quite right to correct me. The two main parties - you are right. But that still does not negate my basic point, which is that whatever the court says we will have to legislate for this; we will have to get the legislation through Parliament. Therefore, we have to proceed in a way that as far as possible takes parliamentary colleagues with us.

Q83 Baroness Falkner of Margravine: Could I interrupt you there?

Mr Wills: Of course.

Q84 Baroness Falkner of Margravine: As I understand it, Her Majesty's Opposition does not think that all prisoners should have a denial of their voting rights - there are certain categories of prisoners, as I understand it, that they would be perfectly content to see given voting rights. As I understand it from ministerial responses in the House of Lords, where I myself have been involved in questions, the issue is to determine what categories of prisoners should have rights and to then move forward. I want to pick up the point in gaining consensus and taking colleagues with one. I have only been in here for six years but I can tell you that in those six years I have not come across all areas of legislation that started from a premise of consensus. I only need to talk about 90-day detention before charge in counter-terrorism cases. I have never seen this government held back for the lack of consensus in pursuing its legislative agenda and I wonder why they have in this particular case of vulnerable people - some of whom are vulnerable - it has abandoned its precepts on the idea that rehabilitation does matter and that society tries to rehabilitate prisoners and therefore bringing them in to giving them minimal rights of political engagement might be a factor in their rehabilitation.

Mr Wills: You have raised a number of points. Just as a point of fact we try on all kinds of areas, and certainly areas for which I am responsible, to proceed on the basis of consensus and we have certainly retracted proposals on the basis that we could not reach consensus, and I am referring particularly to the PPE Bill, which has just become law, which was a very long protracted business and I can assure you that I was there, and that was done entirely on the basis of trying to secure consensus. Of course, basically on some areas you do try to proceed on the basis of consensus and you retreat when you cannot secure it; and others, government has to get its business through and that is the nature of the Executive. So sometimes you do and sometimes you do not. This is an area where we felt, rightly or wrongly, that we should as far as possible try and take both Parliament and the public with us. We know that this has to change. But then the second point you make I agree with, and that is that of course there is a discussion to be had and that is the discussion we have been having on which prisoners to enfranchise. Nobody has suggested that all prisoners should be enfranchised but there are consequences depending on which prisoners do you enfranchise. There are some practical difficulties about the administrative arrangements and so we felt it was proper to move deliberately on this. But we know that within a short timeframe we will be issuing our response to the consultation and then we will have to make provision for this. But whether it will be this side of a general election I cannot tell you at the moment. I think that in all honesty it is unlikely.

Q85 Baroness Falkner of Margravine: What do you envisage the timeframe to be?

Mr Wills: I cannot tell you because we are still digesting the consultation, but to try and be helpful I think it is unlikely that there will be legislation this side of the general election just because of the very short and very crammed legislative timetable there is. There are just not that many legislative days left.

Q86 Baroness Falkner of Margravine: Can you not propose a Remedial Order or amendments to the Constitutional Reform and Governance Bill?

Mr Wills: We have to be always very careful about making Bills into Christmas trees and the Constitutional Reform Bill is already under huge pressure with all sorts of other things and almost certainly going to have to bring in other amendments on very pressing issues and I think it is highly unlikely that we will get consent from anybody to do that in relation to the Constitutional Reform Bill. It is better to do this I think deliberately. I know it is taking a long time; I regret that. It has taken a long time, longer than I think anyone would have wished, but it is complex and it is difficult and you have to move very, very carefully in relation to electoral reform. Why I said we moved so carefully with the PPE Bill, of all this legislation anything to do with the wiring of the constitution - although this is a narrow area and ---

Q87 Baroness Falkner of Margravine: Extremely narrow.

Mr Wills: I agree. It is a narrow area of constitutional reform and it is also one that does deal in part with vulnerable people as you have suggested and I agree with all of that. Nevertheless, as a matter of principle anything to do with the wiring of our constitution should as far as possible move slowly, deliberately and on the basis of consensus. That is not only in relation to prisoners' voting rights - let me just underline that point - because the approach that we took with the PPE Bill we have been much criticised for the length of time it has taken us to produce the Green Paper - by this Committee, I think, among others. Almost every area of constitutional reform for which I have been responsible has moved slower than I would have wished, deliberately and carefully and as far as possible on the basis of consensus.

Q88 Baroness Falkner of Margravine: You will be aware, of course, that our constitutional obligations also involve International Treaty obligations. Have you had representations from the Foreign Office? You are working with colleagues who actually have to appear in Europe and admit that we are not proceeding with this and have no good excuse not to proceed with it, other than to say, "We would love consensus", without having tested the waters through votes to see whether there is a consensus or not?

Mr Wills: I am not sure that we have had representations. I do not think that the Foreign Office works like that.

Q89 Baroness Falkner of Margravine: Have there been discussions?

Mr Wills: We are in constant discussion with them and of course we have to be. We are being held to account in Europe, of course we are, and they are the ones who are being held to account for us. So we are in constant discussion and, as far as I am aware, they share our view on this.

Q90 Baroness Falkner of Margravine: And they are quite happy for the UK to be cited as not conforming to its obligations, are they?

Mr Wills: As a former member of the Foreign Office I cannot recall any of my colleagues ever being very happy about anything!

Baroness Falkner of Margravine: I would have expected you to have a bit more sympathy with their position in that regard! Thank you.

Q91 Mr Sharma: We have been told that we can expect a Remedial Order to remove the certification of approval provisions for alleged "sham" marriages, after the decision of the Court of Appeal and the Supreme Court in Baiai. Can you give us any more detail on the likely timetable for the Order?

Mr Wills: It is certainly our understanding that that is going to be the process that the Home Office will use for this. Again, forgive me, this is not a direct ministerial responsibility but our understanding is certainly that. What the Remedial Order will do is remove this scheme as it applies to marriage and there will be a number of consequential decisions as well as that. What we are told is that the best estimate, given that there will be a delay caused by the general election, is that that order will come into effect at the end of next year or possibly at the beginning of 2011. That is the estimate that we have been given.

Q92 Mr Sharma: The Certificate of Approval scheme is currently being challenged in Strasbourg in the case of O'Donoghue v UK. Does the government now intend to attempt a friendly settlement in that case? If not, why not?

Mr Wills: As I say, as we understand it the Home Office is planning to use this procedure to deal with the case of Baiai, but I cannot, I am afraid, discuss the detail of other cases that are currently before the Court.

Q93 Chairman: Thank you. Those are all the issues that we wanted to raise with you. Is there anything else that you would like to add to anything you have had to say?

Mr Wills: Can I just say thank you. If this is indeed my last appearance I would like to thank all of you for your courtesy over the last two and a half years. I wish you well; I hope that you will all continue in your work in a way that I am not going to continue in mine. You do an excellent job as a Committee; I am very grateful to you and long may you continue.

Chairman: Thank you and thank you for the way in which you have tried to push the human rights agenda forward, albeit sometimes with a little opposition from within the powers that be.