Previous Section Back to Table of Contents Lords Hansard Home Page

We therefore intend to legislate to update the Suicide Act as soon as parliamentary time allows. With the support of my honourable friend the Minister of State at the Northern Ireland Office (Paul Goggins) and the Minister for Health, Social Services and Public Safety in the Northern Ireland Executive (Michael McGimpsey), the legislation will also include Northern Ireland. The updated legislation will comply, as does the existing law, with the requirements of the Electronic Commerce (EC Directive) Regulations 2002.

The following statement was received between Tuesday 23 September and Monday 29 September 2008

Human Rights

The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Hunt of Kings Heath): Lord Laird tabled 34 Questions for Written Answer on human rights covering a number of government departments. Given the length of the answers to these Questions I am providing the information requested in this Statement. Each Question is referred to by means of the House of Lords number. A list of the Questions will be included as an annexe to the text of this Statement deposited in the Library.

The Government keep many areas of their policy under close review. While there may not at this time be specific proposals in relation to many of the specific areas cited in the Questions, continuous assessment of the effectiveness of policy in these areas is often being undertaken. It should not necessarily therefore be inferred from the current absence of such proposals that the Government may not at some future time nevertheless bring forward proposals.

The Forum recently published its recommendations on the current process towards a Northern Ireland Bill of Rights. It is inevitable that many of these issues will be considered in that context. It should also be noted that my ministerial colleagues here in the Ministry of Justice are leading work on the framework of rights and responsibilities in the United Kingdom, in the context of which many of these areas would also be considered, including particularly the various rights and freedoms which are referred to at the start of many of the questions. Given that both of these projects will yet be the subject of consultation, it would not be appropriate to state that any area would definitely be included in or excluded from either of those documents in its final form.

In providing the response to the Questions for Written Answer I have started with questions HL3666 to HL3669.

In Question HL3666, Lord Laird asked whether the Government plan to repeal the Human Rights Act 1998 in part or all of the United Kingdom. The Government have no plans to do so. It was this Government that “brought home” the rights under the European Convention on Human Rights (ECHR) by means of the Human Rights Act. In July 2006 Lord Falconer of Thoroton, then Lord Chancellor, undertook a review of the implementation of the Human Rights Act, in which the Government expressly indicated that

29 Sep 2008 : Column WS180

they remain committed both to the ECHR, and to the way effect is given to it in the United Kingdom by the Human Rights Act 1998. It is of course possible that the precise legislative form of the Human Rights Act may need to be considered in the context of the outcome of the work on rights and responsibilities, but the rights and the core protections given to them will remain.

In Question HL3667, Lord Laird asked whether the Government plan to dispense with the United Kingdom’s powers to derogate from and to make reservations under the ECHR. It would be impossible for the Government to do so. The United Kingdom already has no power to make reservations in relation to its existing obligations under the Convention. Reservations may only be entered by a state at the time at which it signs or ratifies (or equivalent processes for other states through which treaty obligations are accepted) the Convention. Therefore, the United Kingdom could only enter a reservation at such time as it signs or ratifies an additional Protocol to the Convention; it is not possible for the United Kingdom to dispense with this power. It is similarly not possible for the United Kingdom to dispense with its power under Article 15 of the Convention to derogate from those obligations under the Convention in respect of which derogation is permitted. The Government nevertheless have no plans at this time to derogate from any of its obligations under the Convention.

In Question HL3668, Lord Laird asked whether the Government plan to empower the courts of the United Kingdom to apply unincorporated international human rights law. Our dualist legal system means that international treaties are not enforceable in our domestic courts unless they have been expressly incorporated into our domestic law, as happened in respect of ECHR through the Human Rights Act 1998. The Government believe that this system remains appropriate to the United Kingdom’s constitutional traditions, and have no plans to change it. There are nevertheless limited circumstances in which our domestic courts can have regard to our international treaty obligations, including international human rights treaties, most notably where a court interprets an ambiguous statutory provision by reference to the assumption that Parliament, in the absence of an express indication to the contrary, does not intend to legislate so as to place the United Kingdom in breach of its international obligations.

Question HL3669, asked whether the Government plan to establish human rights courts or tribunals. Section 7(1)(b) of the Human Rights Act allows a person who claims that a public authority (within the meaning of Section 6(3)(b) of the Act) has acted (or proposes to act) in a way which is made unlawful by Section 6(1) may rely on the Convention rights in legal proceedings before any court or tribunal. This is in addition to the specific procedure by which proceedings may be brought under Section 7(1)(a) of the Act specifically for breach of the Convention rights, which would be taken to the appropriate court or tribunal for the proceedings. Furthermore, by virtue of Section 6(3)(a) of the Act, all courts and tribunals are themselves public authorities for the purposes of the Act and thus bound not to act incompatibly with the Convention rights; they are therefore obliged to consider, where

29 Sep 2008 : Column WS181

relevant, the Convention rights of parties to a case in all proceedings, whether or not a party to the case is a public authority. The Government believe that this flexible approach to the consideration of the Convention rights is a particular strength of the Human Rights Act, and therefore have no plans to establish specific courts or tribunals to consider human rights proceedings.

In relation to the other Questions tabled by Lord Laird, where the answer does not specifically address a part of a question, it indicates that the Government have no specific plans at this time to take the action about which Lord Laird inquired, but do not necessarily rule out action in relation to that area in the future either in legislation specific to that area, or through the ongoing work on rights and responsibilities. The Government do, however, believe that it is not appropriate to create justiciable rights — particularly those that would be considered economic, social or cultural rights — that could lead to judicial determination of the allocation of resources; this is properly a role for the democratically elected Government.

In relation to Lord Laird’s Questions which may relate to matters that are devolved in Scotland or Northern Ireland, or transferred in Wales, I have responded only in so far as the issue is the responsibility of the Government at Westminster.

In Question HL3461, Lord Laird asked whether the Government will abolish the detention of persons under the age of 18. The Government believe that courts should have the power to sentence or remand young people under 18 to custody where that is the only realistic option, and consequently have no plans to abolish this power. The Government similarly have no plans to abolish immigration detention. It is used as a measure of last resort, and alternatives to detention are used wherever possible. Detention is, however, an important measure where a person who, for example, has no legal basis of stay in the United Kingdom is refusing to leave the country voluntarily; without detention, we could not enforce that removal.

Lord Laird further asked about the communication of reasons for detention. Where a person is subject to immigration detention, they are given written reasons at the point of detention in English. If the detainee does not understand English, the reasons are explained orally in a language that the detainee does understand. In respect of arrest for a criminal offence, it is already an obligation under the ECHR and the Human Rights Act that “everyone who is arrested shall be informed, in a language which he understands, of the reasons for this arrest, and of any charge against him.” The Police and Criminal Evidence Act Code of Practice C (detention, treatment and questioning of persons by police officers) reflects this obligation: it states in Section 13 that “chief officers are responsible for making sure appropriate arrangements are in place for provision of suitably qualified interpreters for people who: are deaf; [or] do not understand English.” Section 13 further provides that “a person must not be interviewed in the absence of a person capable of interpreting if: they have difficulty understanding English; the interviewer cannot speak the person’s own language; [or] the person wants an interpreter present”.



29 Sep 2008 : Column WS182

In respect of the ability of medical practitioners, lawyers and family members to visit detained persons, the prison rules require provision to be made for prisoners to receive visits from their family and legal advisers. Prisons must organise their regime to ensure that all prisoners have an opportunity to take these visits, although they must be arranged to meet security requirements and are therefore booked in advance. Primary Care Trusts (PCTs) commission primary healthcare services within all prisons. These are the main source of healthcare for prisoners and are accessible to all. In emergency cases, there are no barriers to health professionals attending sick prisoners. For hospital treatment, arrangements for escorting and accompanying prisoners are well established.

Immigration removal centres similarly have onsite medial provision, and detainees have access to a doctor. Arrangements are made allowing visits by lawyers and family members; while this is not ordinarily permitted at any time, removal centres run a 24-hour operation, and visits could be accommodated out of visiting times if there was an urgent need to do so.

In relation to the last part of this Question, there is already a presumption against remand inasmuch as there is a presumption to bail. The Bail Act 1976 creates a presumption in favour of bail, but a court may refuse bail if it is satisfied that there are substantial grounds for believing that, if released on bail, the defendant would abscond, commit an offence, interfere with witnesses or otherwise obstruct the course of justice. The court must decide whether the defendant presents such a bail risk as to justify a remand in custody, or whether it would be appropriate to grant bail, but subject to certain conditions, breach of which would make the defendant liable to immediate arrest.

The Criminal Justice and Immigration Act 2008 amends the Bail Act to restrict the grounds on which it is possible to refuse bail to defendants charged with a summary-only offence that is punishable by imprisonment. The aim is that custody should be targeted as precisely as possible upon cases where there is otherwise a risk of harm to the public. The court has to make a risk assessment, balancing the risk which releasing the defendant on bail may pose to the public or to the administration of justice, against the consideration that it is a serious step to remand in custody. This involves not only assessing defendants’ past behaviour but also predicting how they might behave.

In Question HL3462, Lord Laird asked about the laws on equality and discrimination. The Government recently announced plans in relation to this area. The European Union is also currently considering new proposals to extend its discrimination legislation. It nevertheless remains that our domestic law already offers more comprehensive protection against discrimination than that implemented at a European Union level. Lord Laird also asked whether the Government will adopt positive discrimination. Positive discrimination generally refers to discrimination in favour of a person from a particular under-represented or otherwise disadvantaged group solely because they come from that particular group. It is, in the main, unlawful under both domestic and European legislation. The main exception is in disability legislation, which permits positive discrimination in certain circumstances

29 Sep 2008 : Column WS183

where disabled people may be given preference over non-disabled people. While the Government do not in general support positive discrimination, they do support appropriate positive action, in particular through duties on the public sector to work towards the better realisation of equality on certain grounds.

Lord Laird also asked whether the Government will ensure that disabled people enjoy human rights equally with others. It is, of course, a key part of the framework of the ECHR and the Human Rights Act that not only should the Convention rights be protected, but that under Article 14 there should be no discrimination in their protection. Furthermore, while it will not form part of our domestic law, the United Kingdom has been a strong supporter of the new United Nations Convention on Disability Rights, which the Government intend to ratify before the end of this year.

Question HL3463, asked whether the Government intend to create a “horizontal” right to life, protecting people from other people as well as from the state. This is the function of the criminal law, which makes specific provision in this respect. The Government are currently undertaking a review of the law of homicide, following recommendations made by the Law Commission. This stage of the review was announced in December 2007 and will cover the partial defences of provocation and diminished responsibility, together with the law on infanticide and complicity. Any changes made to the law will not affect the applicability of the law to individuals and to the state. The Government have also recently introduced the Corporate Manslaughter and Corporate Homicide Act 2007, which came into force on 6 April 2008. The Act applies to corporate bodies, including organisations in the public, private and third sectors, which cause a death by a gross breach of a duty of care.

The Government have no plans to create any new retrospectivity provisions in the Human Rights Act. In general, the Act applies only to events occurring after it came into force; however, it should be noted that Section 22(4) permits the use of Section 7(1)(b) of the Act, as indicated above, in proceedings brought by or at the instigation of a public authority whenever the act in question took place. It was however decided by the House of Lords in R (Hurst) v Commissioner of Police of the Metropolis1 that Section 22(4) does not relate to a decision not to reopen an inquest into a death which took place before the Act came into force. The Government believe that this is the correct position under the Act.

Lord Laird asked whether the Government will extend the law on inquests to allow witnesses to be compelled to give evidence. A coroner already has power under the Coroners Rules 1984 to compel a witness who is within his or her district to attend an inquest. A coroner has no direct power to compel a witness who is outside his or her district to attend an inquest or to require a witness to produce documents, but can apply to the High Court or a county court for a witness summons in such cases. The Coroners and Death Certification Bill will give coroners power to compel witnesses to attend witnesses whether or not the witness is within the coroner’s jurisdiction. The Bill will also give coroners direct power to compel a witness to produce documents.



29 Sep 2008 : Column WS184

Lord Laird also asked whether the Government will alter the law on the minimum use of force to create a different test for persons under the age of 18. Last year, the Ministry of Justice and the Department for Children, Schools and Families set up a joint review of restraint issues in juvenile settings including secure training centres, young offender institutions and secure children’s homes. We will consider the issue of the use of force in light of the recommendations that have been made.

In Question HL3464, Lord Laird asked about hate crime legislation. The criminal law protects everybody from violence, threats of violence, harassment or criminal damage to property. There are also aggravated offences of racial and religiously motivated assault, harassment and criminal damage which attract higher maximum penalties than if the offence is not aggravated. In addition, there are statutory aggravating factors which need to be considered in sentencing for any offence if the offence is motivated by hatred based on race, religion, sexual orientation or disability. The Government have no plans to amend the law in this respect.

In relation to the second part of this Question, the Government also have no plans to amend the law in respect of a woman’s right to control her reproduction. In respect of contraception, the National Health Service Act 2006 covers the provision of advice and treatment in relation to contraception, as well as the supply of substances and appliances, and places an obligation on the Secretary of State (in this case, the Secretary of State for Health) to make arrangements to such extent as he considers necessary to meet all reasonable requirements.

The present law governing abortion in England, Scotland and Wales is the Abortion Act 1967 and the Abortion Regulations 1991, as amended. Further amendments to this legislation have been proposed during the passage of the Human Fertilisation and Embryology Bill, in accordance with the accepted parliamentary practice that proposals for changes in the law on abortion come from Back-Bench Members and are decided on the basis of free votes. However, the Government believe that the Abortion Act 1967, as amended, works as Parliament intended and does not require amendment at the current time.

In his Question HL3465, Lord Laird asked whether the Government will reform “the law permitting the return of a person to a country where he may be legally executed”. There is no such law. Indeed, under the ECHR and the Human Rights Act, the Government may not return someone to a country where there are concerns that they may be executed without prior credible assurances that such an execution would not take place. This is in accordance with the Government’s general opposition to the death penalty.

Lord Laird also asked whether the Government will prohibit evidence obtained through ill treatment or torture from being admissible in criminal proceedings. As a matter of fundamental principle, the Government condemn the use of torture. Evidence found to have been obtained as a result of torture is not admissible in criminal or civil proceedings in the United Kingdom, except in the very limited circumstances set out in Article 15 of the United Nations Convention Against

29 Sep 2008 : Column WS185

Torture in relation to prosecutions of those accused of torture. The proper approach to the consideration of whether evidence has been obtained by torture is found in the speeches of Lords Hope, Rodger, Carswell and Simon in A and others v Secretary of State for the Home Department (No 2)2.

In relation to Question HL3466, the Government have no plans to alter the absolute prohibition on slavery and forced labour contained in the Human Rights Act. The Government do not however believe that work in prison should be viewed in this context. The benefits of providing work in prisons have long been recognised. Having prisoners out of cells and taking part in employment helps maintain order and control, and introduces many to the work ethic and provides them with valuable skills which will increase their resettlement opportunities and reduce reoffending. Providing essential services to prisons is also part of the prisoner giving something back to society.

Along with colleagues from the Department of Innovation, Universities and Skills, my ministerial colleague David Hanson hosted a forum on 13 May 2008 with the private and third sectors to discuss how the Government can develop new ways of working with employers to raise offenders’ skills and employability, focusing on work in prisons. An action plan is now being developed to try to match the employers’ interest with capacity in the prison system.

In Question HL3488, Lord Laird asked whether the Government will add to the right to respect for private and family life a right to freedom from domestic violence and the protection of the best interests of the child. The right of the individual not to be subject to inhuman or degrading treatment is already covered by Article 3 of the Convention rights; there will be times when this will place a positive obligation upon a public authority to intervene where violence is known or believed to be occurring in a domestic setting, so as to enforce the existing provisions of the criminal law. The Domestic Violence, Crime and Victims Act 2004 strengthened the law on domestic violence and made a number of amendments to the Family Law Act 1996 to provide better protection for victims and their children, while also holding offenders to account. The 2004 Act also included significant new police powers to deal with domestic violence, including making it a criminal offence to breach a non-molestation order, and making common assault an arrestable offence. Beyond the law itself, the Government have had a national domestic violence delivery plan since 2005, through which we are seeking to make sure that domestic violence is being tackled through all of our mainstream services. The plan outlines how we will ensure that perpetrators are brought to justice while providing the best possible help for victims and their children.

In relation to the best interests of a child, existing legislation already places a duty on key persons and agencies who come into contact with children to make arrangements to safeguard and promote their welfare. Section 11 of the Children Act 2004 places a duty on those key persons and bodies to make arrangements to ensure that in discharging their functions, they have regard to the need to safeguard and promote the welfare of children. The Government have defined

29 Sep 2008 : Column WS186

safeguarding and promoting the welfare of children in statutory guidance as: protecting children from maltreatment; preventing impairment of children’s health or development; ensuring that children are growing up in circumstances consistent with the provision of safe and effective care; and undertaking that role so as to enable those children to have optimum life chances and to enter adulthood successfully.


Next Section Back to Table of Contents Lords Hansard Home Page