Witness: Lord Falconer of Thoroton QC, a Member of the House of Lords, Secretary of State for Constitutional Affairs and Lord Chancellor, examined.
- Chairman: Lord Falconer, welcome to this meeting of The Joint Committee on Human Rights. Shortly after your appointment we decided we would give you a bit of time to get your feet under the table, and then we would ask you to come and see us, to talk to us now in your role as the Cabinet Minister with responsibility for human rights in your new Department of Constitutional Affairs. We wanted to take an early opportunity to examine your thinking about human rights policy, where it was going, and your areas of responsibility. We also wanted to speak to you about the announcement by the Government on 30 October about the decision in principle to proceed with the establishment of what is called presently the Commission for Equality and Human Rights, which follows very much from the recommendations of this Committee in a report to Government departments last March. It is a pleasure to see you. I should like first to deal with a general strategic issue, looking at the role of your Department in relation to human rights, because some six months have passed since your appointment. How do you see your priorities, and what are the goals of your Department in relation to your responsibility for human rights policy?
Lord Falconer of Thoroton: As you rightly say, I am the head of a department in Government responsible for human rights. I think it is incredibly important that I take all the steps that I can, as a Minister, and, through my Department, to promote a human rights culture right throughout Government and beyond. What does that mean in practice? There are four things I can identify that indicate strategic approach. The first you have already mentioned, which is the setting up of a commission as a result of the report of this Committee. I think that is a very important signal, that the Government cannot do it alone; there needs to be effective promotion of human rights goals and a human rights culture by a body totally independent of government. That is number one, the setting up of a commission, which is terribly important. I do not think that one can wait for the setting-up of the commission before one takes further steps to promote a human rights culture because it will take a bit of time before the commission is up and running. As far as Government is concerned, each Government department should review what each individual department is doing to ensure that its mainstreaming of human rights is part of Government activity. My Department is going to draft that through Government. I am pleased to say we have already taken steps towards that review/ It asks questions of the departments: "What are you doing to mainstream human rights in your department?" By the end of the year I expect there to be a formal request to each permanent secretary in each department to produce the results of their review. The third priority is making connections outside Government, beyond what the commission may do. We are trying to find partners outside Government, and talking to them about the way people outside the Government promote human rights, and also what steps we can take in order to increase awareness about what human rights involves. I have two examples. David Lammy, in my Department, has been very active in making contact with the Audit Commission and ensuring that the Audit Commission is in contact with local authorities to ensure that local authorities are taking steps to mainstream human rights activity.
- Mr McNamara: Will you make sure that the Audit Commission is taking the same approach?
Lord Falconer of Thoroton: In terms of what the Audit Commission does internally or in its approach to local authorities?
- Mr McNamara: Article 6.
Lord Falconer of Thoroton: I will bear that in mind. The second aspect is citizen education. The Impetus Project with the Institute for Global Ethics, the Citizenship Foundation, is a way of trying to build people's awareness. The third priority is to connect with bodies outside Government to try to make them take steps in relation to human rights and increase awareness. Finally, there is the issue about the United Kingdom's compliance and obligations under the various international human rights instruments. I know you may want to ask me about that later, but I am very keen to finalise the review on how we are doing in relation to this as quickly as possible. It is the Commission; it is making Government review how it is mainstreaming its major connections with outside bodies; and it is making sure that the review of our obligations under various international instruments comes to an end as quickly as possible.
- Chairman: That letter has gone to departments, has it?
Lord Falconer of Thoroton: I do not think the letter has formally gone. By the end of the year a position will be reached where each one of the permanent secretaries of each of the departments will be requested to get in place a review of what they are doing in their department to mainstream human rights.
- Chairman: Would you say that under your watch, human rights would be a growth area in your Department's responsibilities? There is a feeling on the part of some people that there was a huge impetus building up to October 2000 with the coming into force of the Act, but that there has been a tailing-off since then.
Lord Falconer of Thoroton: I am very keen for there not to be a sense it has tailed off. I am very keen for people to understand that the purpose of the Human Rights Act being passed was a fundamental change in the way things are done - not as a result of lots and lots of litigation but as a result of there being a change in culture. You have heard this many times before. We do not want a litigation-fest; what we do want is a growth in understanding of the fact that human rights, in the way that state and parastatal organisations operate means a new culture of respect.
- Mr Shepherd: Presumably the Audit Commission can only draw local authorities' attention to the Human Rights Act.
Lord Falconer of Thoroton: Yes.
- Mr Shepherd: Therefore, the legal framework, which is in statute, and nothing else.
Lord Falconer of Thoroton: I am quite sure the Audit Commission is perfectly entitled to ask what this legal framework means in practice. It means things about care homes, about how you deal with people who are cared for in the community, et cetera. I would hope that they try to convey what it means by more than just a bare statement of the law.
- Mr Shepherd: I have been on this Committee maybe too long, but shortly after it was set up. What does the language "human rights" encompass? In our legal framework, I understand it quite clearly. The Human Rights Act, which the Labour Government introduced, is part of our statutory law. This Committee has used that as a means of incorporating into its deliberations and considerations the ways it has looked at it, something the international bodies call "human rights". The Human Rights Act seems to be what we would have called, when I was growing up and you were growing up, our political and civil rights.
Lord Falconer of Thoroton: Yes.
- Mr Shepherd: That is the core, the very heart of it. Does that mean that the Government subscribes necessarily to all these huge numbers of international instruments being brought into British law - I think there are up to a hundred - in social and economic areas?
Lord Falconer of Thoroton: Yes.
- Mr Shepherd: Which Parliament has never even looked at.
Lord Falconer of Thoroton: The human rights aspect of what the Audit Commission will do will be to focus on what you rightly call the civil and political rights as we would know them. The social, economic and cultural rights that you referred to are not part of our law in the way that human rights are under the Human Rights Act. We have signed various international instruments that commit us to promoting those cultural and social rights, but, plainly, my priority must be to try to promote human rights as defined in the Human Rights Act. It does not mean I will ignore the social and cultural rights referred to in those various international instruments. They have an important part to play. The priority should be, if I am the Human Rights Minister, promoting those human rights.
- Mr Shepherd: Promoting the political -----
Lord Falconer of Thoroton: The ones in the Act.
- Mr Shepherd: Which is what the business of this Committee primarily should be about. However, on the wider extended ones, clearly the Government comes into conflict with some of those instruments that it has signed. I can give one very specific one: reasonable chastisement, for instance.
Lord Falconer of Thoroton: We have signed those instruments and committed ourselves to those instruments internationally. I prefer, for obvious reasons, to talk about those where we go along with the sweep of those instruments; and we are keen to see those principles and aspirations delivered as much as possible. However, in terms of what is my priority, it is the civil and political rights that you identified, which are reflected in the Act.
- Mr Shepherd: If I could continue this line, it is of considerable importance. Those are entered into by prerogative power.
Lord Falconer of Thoroton: Yes.
- Mr Shepherd: They have not been examined by Parliament in the form of statutory ----
Lord Falconer of Thoroton: Yes.
- Mr Shepherd: We have a Foreign Secretary who announces: "The fact is that all international treaties take primacy over national laws and the system of international law could not function otherwise." That is a statement that he made in the House of Commons. It would seem, therefore, in conflict with the wider point I am making.
Lord Falconer of Thoroton: I am not sure that there is conflict. An international treaty entered into by the UK is plainly binding in international law. It may not have a direct effect in domestic law, but it is plainly binding in international law, and it sets out very frequently what the aspirations are of us in signing or entering into that particular treaty. It does not mean that it is in conflict with domestic law remotely.
- Mr Shepherd: Where it is in conflict with domestic law?
Lord Falconer of Thoroton: We would not normally enter into international agreements -----
- Mr Shepherd: I can give you an instance of reasonable chastisement, for instance. There is a direct conflict with the United Nations Convention on the Child and our own domestic law, which has been twice reviewed by the Government.
Lord Falconer of Thoroton: Obviously, if reasonable chastisement by parents is lawful in this country, I am not going to promote a regime that seeks to make it unlawful. I have to comply with the arrangements in relation to the law. I do not think that this causes a practical problem.
- Mr Shepherd: As we are in ignorance of most of these international instruments, where they reach and what they touch on - and your own Department cannot give us a list of those obligations yet, although hopefully we will get one - we do not know therefore what standing they have in the eyes of the Government.
Lord Falconer of Thoroton: If and insofar as something is lawful in this country, but it is something where we might have committed ourselves in the opposite direction, obviously I will not remotely interfere with the law here. In terms of strategic issues that the Chair raised with me in this question, I do not think they give rise to any difficulty.
- Mr Shepherd: It is the very use of words "human rights" that now is encompassing so many things that you and I would say are social or economic, which are in fact at the very heart of our democracy - the allocation of resources, how we direct attention to those. I come from the tradition of those human rights that believes fundamentally the Labour Government ensured they were enacted into statute, the Human Rights Act, and therefore the wider use of the term "human rights" is confusing and misleading.
Lord Falconer of Thoroton: If you use the words "human rights" to cover the broader social and cultural rights.
- Mr Shepherd: So you say that would be misleading?
Lord Falconer of Thoroton: No, I would not go that far. I would say that human rights has a meaning which, in certain places, goes wider than the Human Rights Act; but I am saying that my focus, my priority, is to ensure the civil and political rights identified in the Human Rights Act. That is my priority. I do not see that as in conflict with the wider social and cultural rights in 99.99 per cent of cases. Equally, I recognise that some people call the whole shooting match "human rights", but I do not think that is how people describe it, and it is not necessarily critical to what one does.
- Lord Lester of Herne Hill: Lord Falconer knows that our Committee does not take such a narrow view. We draw your attention to what we refer to as the obligations under economic and social rights provisions as well. I am sure you do not mean to say you are going to take those obligations less seriously if we draw them to your attention, because they are part of the binding international legal obligations on the UK, and the courts take them into account just as we do.
Lord Falconer of Thoroton: Of course not. The last thing I would be good at or that would be worthwhile is giving a precise definition of what is meant by "human rights" because lawyers and others will argue for a very long time about what that means. That is why I have tried to identify the priorities. The priorities are civil and political rights, but that does not mean that social and cultural rights in the wider instance will not be looked at as well. But they will inevitably, I suspect, in terms of what I do, come as a lower priority than the mainstream or the more central civil and political rights of the Human Rights Act.
- Mr McNamara: You made a major point on the role of the Audit Commission and I made an aside before. The Audit Commission has wide, sweeping powers to make recommendations and reach decisions.
Lord Falconer of Thoroton: Yes.
- Mr McNamara: In doing so, it can make observations and comments upon individuals that are detrimental to their character and perhaps to their careers and reputations. The Audit Commission does not seem to be aware of Article 6, where they criticise specific individuals, allowing individuals to see the evidence on which their decisions were reached, and to challenge it. I would be grateful if you could draw to the attention of the Audit Commission that despite lecturing local authorities on how to do it, they should in fact do it themselves.
Lord Falconer of Thoroton: I do not know the particular case. I understand the point you are making.
Mr McNamara: I will drop you a note.
- Lord Judd: Coming back to economic, social and human rights, I do not want to be pedantic, but you talk about your priorities and you say you do not want to define the priorities. That could imply that you accept that there is a priority for economic and social rights as well, but they are not your priorities. If they are a priority in their own right, who pursues them?
Lord Falconer of Thoroton: I was seeking to describe where the effort of my Department would go; and you have to prioritise to some extent in relation to that. Some of the social and cultural rights we are talking about are the responsibility of other departments. Some of them are Foreign Office responsibilities. Who will give them the drive they need? It is a question for each department to work out what its priorities are in this field. I can only tell you what my priorities in this field will be. It will obviously depend on a case-by-case basis, but you should not regard me as saying that nobody will give them priority. I am simply saying what my priorities are.
- Chairman: Lord Falconer, after the 2001 Durban World Conference Against Racism, the Government agreed to have a national plan of action. Why is it that there was not a similar plan of action on human rights following the Vienna Declaration in 1993?
Lord Falconer of Thoroton: The Vienna Declaration said, "consider whether or not you need to have a national action plan". I think the right course at the moment is to pursue the review of each government department's steps to mainstream human rights; then wait for the commission to be set up, to see whether or not it thinks that there should be a national action plan in relation to it. We have been going within the Human Rights Act framework since 2000. Is a national action plan at this particular moment, produced by the Government, the right way forward, or is the right way forward the ways I have identified? My feeling is that the better way forward is the way I have described: the reviews, and wait and see what view the commission takes in relation to it.
- Mr Woodward: Over the last couple of years, we have been looking at the whole area of the promotion of human rights. We have also taken evidence from your predecessors in the Department. It would be fair to conclude, if we instanced any one of a number of reports - but I take the one we looked at last year of the United Nations on children - that to some extent the Government's ambitious project to promote human rights had stalled. The Government's response to our paper and subsequently, for example, in the Green Paper on children, we felt there was a fundamental absence of what might be described as a context of children's rights in that paper. There were all sorts of proposals, some of which were extremely good, and no-one could remotely take away the Government's promotion in relation to, for example, the establishment of a Minister for Children and an English Children's Commissioner; but in terms of a coherent framework that might be described as a culture of children's rights, frankly there is not much there. We have also observed in the evidence of your predecessors that there is a great deal of rhetoric. For example, lots of stuff comes in about departments talking to departments, and when we pressed the Minister, it came down to some occasional phone calls that took place and some aspirations that it might be able to be more coherent in the long term. There is a fair amount of genuine scepticism to match alongside some very good rhetoric about the desire for a culture and a framework of human rights. You said at the beginning of this Committee that you were very keen to effect a fundamental change in the way this is done, and a growth in understanding of the new culture of respect.
Lord Falconer of Thoroton: Yes.
- Mr Woodward: Realistically, have you got the resources at the moment? Are you going to have more resources, and, as somebody said to me before this meeting, bearing in mind for example the Home Office, how will you make sure that some of your Cabinet colleagues start using some of the language, not only as rhetoric but in policy?
Lord Falconer of Thoroton: The points you are making are points I have been concerned about because obviously I am aware of the overall direction of this Committee's view about how the human rights issues are developing within Government. That is primarily where it is directed. I have been interested to follow up those issues, and the response I get is that within Government culture is changing. It is changing in this respect: when issues are now debated and discussed, the language of proportionality, the language of appropriate response, the language of human rights is now a common parlance in the formulation of policy. I understand the point that Shaun makes about, for example, the Green Paper Children at Risk. There is no reference in that to any of the language; but what I am being told is that in the formulation of that policy, in the way that ministers are advised and the way that officials look at these issues, they increasingly look at them - and that is an example - in the context of and against the templates of human rights. It very, very frequently will lead to a particular set of policy conclusions that will then be expressed in a way that may not draw as much as we would all like on the language of human rights; but that that approach and that culture is present, I am being reassured is the case. One thing, I suspect, you would not say about the Green Paper Children at Risk is that it offended against various bits of the Human Rights Act; the point would be that it does not approach the issue using that sort of language. I am being told, and I am prepared to believe this, that the way policy is formulated more and more reflects those templates and that approach. I therefore do not think you should be as despondent as your question implies. It is not a view you have alone, I suspect.
- Mr Woodward: The significance of including, for example, a context, as a framework of children's rights in that paper would, albeit as you rightly say Departmental officials had it in some framework reference in drawing it up and it is just absent from the final document, is the signal it sends out to everybody else.
Lord Falconer of Thoroton: Yes.
- Mr Woodward: You all know it, but the problem is that nobody else knows that the Government takes that quite so seriously because it is absent from the document. One of the things we found when we were doing our report into whether or not we needed a Commission for Human Rights was that in many departments outside of Whitehall - although sometimes including within Whitehall - it is not taken much seriously. I worry about your - it would be wrong to call it complacency but in a sense your contentment with the absence in a document like Children at Risk, because of the signal it sends to everyone else, of, "we think it is important; that is why it is in our document and we expect you, whether you are NGOs or local authorities or whoever you may be, to take it seriously too." It is the absence of it, as instanced in that document, that I am saying you and your Department should perhaps be less content with. From the evidence we have collected the culture of human rights is not taken anywhere near as seriously in many public bodies as some of your officials are leading you to believe is taken seriously.
Lord Falconer of Thoroton: I hope I am not giving the impression of contentment or complacency because it has only been going since 2000 in terms of the law, and there is a huge culture change to effect. To make it work, to make it stick, I am quite sure that the battles we should be fighting should not be about just language, including particular language in a particular document, they have to be about what the reality is and what the actual approach is. In central Government I think that at certain levels there is an acceptance that that is the position. If you went wider than central Government I think there is quite a lot of work to be done. I do not want to imply there is not quite a lot to be done at central Government as well, but the process we seek to achieve seems to me to be to make people think when looking at relevant issues, about what the human rights are. The language is obviously important in relation to that, but it is secondary to the approach. I will do as much as I can to ensure when I speak, and when I get the opportunities to do so, to raise the issue as a profile in Government. The critical thing, I think, is to make people approach the formulation of policy in that way.
- Lord Lester of Herne Hill: Does it follow from what you have said, Lord Falconer, that what matters is not just using the language of proportionality but making sure you do not take excessive disproportionate powers in practice?
Lord Falconer of Thoroton: Of course. You put it, though, in terms of powers. In looking at particular policy formulation, it is much more than whether or not we have powers; it is the whole process of how government interacts with the citizen in relation to that. Look at those issues through the filter of the Human Rights Act.
- Lord Judd: You have been describing tackling the intellectual context within which legislation is proposed.
Lord Falconer of Thoroton: Not just legislation.
- Lord Judd: No, policy.
Lord Falconer of Thoroton: Yes.
- Lord Judd: The test will be what the policy is and what the legislation is.
Lord Falconer of Thoroton: Yes.
- Lord Judd: How far do you have resources, or how far do you see the role of your Department as challenging other departments when they are preparing legislation? When you see something that has human rights implications, do you go into battle and say, "hey, this thing has human rights implications; are you taking the rights as seriously as you should be on this particular proposal?" Do you have that kind of proactive relationship with other departments?
Lord Falconer of Thoroton: My job is to champion and promote human rights both in Government and beyond. That means my Department, in its discussions with other departments about policy formulation, should be putting the human rights case; and they will receive, increasingly, a very receptive hearing.
- Lord Judd: Can you give us any examples?
Lord Falconer of Thoroton: I am very unkeen to give specific examples because I do not want to set one department against another. In terms of championing and promoting human rights, that is the role of the Department. We are receiving an increasingly receptive hearing. I do not want to be accused of being complacent or content; I am not complacent or content about it. However, the process is happening and progress is being made.
- Lord Judd: If you are going to do that across the whole range of Government - and we have a very busy legislative session coming up - do you have the resources to see what all the implications are in human rights terms?
Lord Falconer of Thoroton: Do I have enough resources? I do not have enough resources to deal with every single issue that could arise within and outside Government. Do I have enough resources to make an impact in relation to the issues both in terms of internal Government activity and the external issues connecting with what is beyond central Government and connected with the public, I have resources to make some impact in relation to that. I will obviously have to prioritise.
- Lord Judd: You are being very candid. It is pretty arbitrary, in other words.
Lord Falconer of Thoroton: It is not arbitrary. Decisions have to be made about how you do it, and that means that you cannot deal with every issue that arises - but you would not expect me to be in that position.
- Lord Judd: Can I take one argument that interests a number of us. When the Terrorism Act 2000 was declared to apply to the whole of London without the usual suspicions for stop-and-search, had you discussed that with those responsible? Had you been in with them to raise the human rights implications? Did you lose the argument, or did you just decide not to intervene, or were you unaware of what was proposed?
Lord Falconer of Thoroton: I was then Housing Minister at the Department of Transport. I was Governor of the Regions. I was not asked, is the answer. I cannot have been asked. I was at the Cabinet Office then. I do not know what happened in relation to that, but I would be quire reluctant, even if I did know, to give any details about what went on in relation to it. Happily, I am spared to make any decision in relation to that because I do not know what happened in relation to it.
- Lord Judd: This is interesting because you say you are reluctant to give specific examples, and yet you tell us you are exhorting everybody - and I do not doubt that - your enthusiasm is very present, and indeed your intellectual powers - but for us to measure what is really happening, it is important to see what does go on at the interface.
Lord Falconer of Thoroton: I accept that.
- Lord Judd: And whether there is an engagement, what the result of that engagement is. It is on that kind of information that you can decide -----
Lord Falconer of Thoroton: I fully understand that. It would not be good, I suspect, if I described inter-government issues in such a way that one sought to, as it were, enlist a committee such as this on one side or another. The way it works is, like so many issues in government, where there is a financial aspect or other legal issues that the Attorney-General's Department is involved in, or there might be connections with other departments, there will be discussions. As time goes on, I hope you will have faith that human rights issues will be championed and promoted by my Department.
- Lord Lester of Herne Hill: When Lord Judd puts these questions - take my example of a hypothetical department that seeks very wide and excessive powers to regulate. Who in Whitehall now would be the wicketkeeper who would say, "On the face of it, that is excessive and disproportionate; do not do it"? Is it your Department or the Law Officers' Department or the lawyers in the actual department?
Lord Falconer of Thoroton: The Law Officers are the definitive advisers in Government as to whether or not something is lawful. However, right from the outset of formulation of policy, I would regard my Department, where there was an important issue that might engage human rights, as being the department that should be involved in the policy aspect. I do not in any way seek to say it is not for the Law Officers to give, where appropriate, a definitive view as to whether or not it infringes a particular aspect of the law; but my Department's role is to promote and champion human rights within and without. Therefore, when one is formulating policy at the outset, be it health, education or the Home Office, there should be engagement with my Department to discuss the formulation of policy. That does not mean conflict; it means discussion.
- Lord Lester of Herne Hill: I am asking whether it happens.
Lord Falconer of Thoroton: Yes, it does.
Chairman: Can I point out to you, Lord Falconer, that there is a monthly renewal of the power to which reference has been made under the Terrorism Act 2000, so there might be a role for your Department at some stage in the future.
- Lord Plant of Highfield: When we were discussing before you came in about who might ask various questions, I was asked to focus on social and economic rights which we have done quite a bit of. I was rather relieved that you saw your emphasis on civil and political rights as a matter of priority rather than there being a categorical difference in your mind between civil and political rights and social and economic rights, because I do not think it is possible to draw a logical or categorical distinction between traditional rights, if you like, and social and economic rights. However, this is not the moment to pursue that. Can I nevertheless ask you to reflect a little bit further on social and economic rights, because this Committee, in its publication and report about the setting-up of the commission emphasised the importance of human rights elements and treatment for the elderly, healthcare provision and adequate housing. That seems to me to be entirely right; and indeed where rights that citizens feel are most real to them. "What are my rights in this care home/hospital?" How do you conceive of rights in those sorts of fields? Although they are concerned with social and economic provision, are those rights largely of a procedural kind, namely "you are not being discriminated against" or "you are not being treated unfairly"; or are we moving down the track of trying to formulate access to these things in terms of substantive rights - rights to resources of various kinds?
Lord Falconer of Thoroton: It connects in with the setting-up of the commission, for obvious reasons. The setting-up of the Equality and Human Rights Commission is primarily designed to recognise the huge overlap between equality and human rights and try and put them in the mainstream of activity. I am reluctant to get drawn down a route which says we are keen to get to a point where there is a right to things like a well-financed old age, for example. We think the starting-point is not to discriminate against elderly people. Anti-discrimination legislation and human rights have all got a part to play in that, but in identifying what the mainstream entitlement is rather than as some separate add-on when you look at the rights of the elderly.
- Lord Plant of Highfield: But you would accept that if you stood outside Parliament and asked British citizens if they thought they had a right to education or healthcare, they would think that they did.
Lord Falconer of Thoroton: Yes.
- Lord Plant of Highfield: That is more than not being discriminated against.
Lord Falconer of Thoroton: It is, but it is what is achievable in relation to this. In terms of what myself and the Government are doing in relation to human rights, there are the social and cultural rights, and they are part of mainstream Government activity. To achieve something in relation to the human rights fields I think involves not ignoring that bigger social context, but focusing on those that can make a difference.
- Mr Chidgey: Lord Falconer, in your opening remarks to us, you talked about how your Department is driving through the human rights issue with each of the Government departments, and encouraging them to mainstream human rights. Without wishing to dwell on the social and cultural rights, there are some interesting aspects that come out of that. Do you think that the present distribution of responsibility for human rights policy across departments is rational? Is it capable of improvement, or do you have any suggestions for improvement?
Lord Falconer of Thoroton: I think it is rational. I do not think it would be sensible at this stage to think of any significant changes in relation to their responsibilities across departments. I know there is an issue in relation to certain international instruments. I can see issues about looking to see whether or not those international instruments have been complied with and whether it is sensible in every case or in some cases to be in the Foreign Commonwealth Office rather than the Department of Constitutional Affairs. They are significant but not right at the heart of the issue. In terms of the way in which human rights responsibilities are distributed around the Government, they are basically rational, and I think the right thing to do at the moment is to be much more focused on delivering outcome from that, rather than thinking whether we need a further change in departmental responsibility.
- Mr Chidgey: You have touched on a key issue for me, which is the responsibility of the FCO, particularly in regard to the covenants on economic, social and cultural rights, with responsibility for reporting compliance to the Government. That responsibility is primarily a matter of domestic human rights policy, and it therefore seems more appropriate for your Department to take the lead in responsibility in preparing the report to the UN, and in chasing up implementation of the UN Committee's recommendations.
Lord Falconer of Thoroton: I could not agree more. The reporting back is entirely dependent on what is going on domestically. If and in so far as there is any overlap, it is much more with what my Department is doing than anything else. It is in the FCO because there is an international treaty negotiated with other countries. All the meat of the review is in my Department, I accept.
- Mr Chidgey: You are probably aware that we took evidence from Bill Rammell.
Lord Falconer of Thoroton: I am aware of that. He seemed enthusiastic. He did not look to me as if he was holding on to it.
- Mr Chidgey: He did say something along the lines that there were discussions going on between your Department and the FCO about the allocation of responsibilities for reporting on and implementing the covenant. Have these discussions reached any conclusion?
Lord Falconer of Thoroton: They are still continuing, but I do genuinely see the logic of your position in relation to it, and I also see that the Department, wherever the formal responsibility is, will have the heat, and the burden of determining what is happening in order to discharge the responsibility of reporting back on the review will be primarily mine. There will be other departments involved as well, but obviously we have a responsibility in that respect.
Lord Lester of Herne Hill: There is a case to the contrary, going back to my own experience in government. The Foreign and Commonwealth Office, being internationally minded, would be a more effective chaser of compliance with the international bodies than the home departments, which would be on the receiving end, but would be less keen to comply. Therefore, there is an argument for saying the Foreign Office is more enlightened than the darker home departments in this respect. That is the argument, and my experience is that that is true.
- Mr Chidgey: Can I turn to the situation between your Department and the DCA/NGO Forum on Human Rights that was established last year? I think I am right in saying that there has been one meeting of the sub-committee, which discussed the UK report under CERD, shortly before it was presented to the UN Committee on the Elimination of Racial Discrimination last August.
Lord Falconer of Thoroton: Yes.
- Mr Chidgey: The DCA/NGO Forum on Human rights has begun reviewing the concluding observations of each of the UN human rights treaty bodies and discussing, with relevant NGOs, how these might best be implemented. Are there any difficulties in making this review meaningful or effective when the DCA does not have a clearly established lead role on each of the treaties?
Lord Falconer of Thoroton: The way the NGO Forum operates is that it will come and speak to various bits of Government, and in effect have a dialogue about the important issues. They have done it for example in relation to children and young people issues. They have had conversations with the relevant officials in that part of Government. Those are not areas that the international obligations are not in every case areas where we are in the lead, not just in relation to the particular policy issue like children, but in relation to the particular international instrument. The purpose of the Forum is to permit access to the NGOs to those bits of Government that are dealing with issues where human rights issues are engaged. I do not think the fact that we are not the lead on the particular covenant or instrument is a problem in that respect.
- Lord Plant of Highfield: Can I ask you a subsidiary question about the role of NGOs. Given that you are Secretary of State for Constitutional Affairs, do you have any concerns about how representative or accountable the NGOs are that you are dealing with? I have no particular view about it, but it seems to me that there is a question there when Government is giving some kind of official recognition role to NGOs. How do you know they are properly representative of a wider range of views?
Lord Falconer of Thoroton: I cannot be completely sure, but bringing in people who are not, as it were, the official machine - which we believe covers a wider range, obviously, than the official machine could do - is a god thing, as long as you recognise the point that you are making, which is that it should not be regarded as the authentic voice of every single strand of opinion. You will now this better than I; you have to bear in mind that the various competing voices may be much more about the degree of articulation rather than those issues that which should be given greatest importance. I have been passed a note. On the Forum, anybody can be asked to come, which probably makes your point more, Lord Plant. Liberty co-ordinate the membership.
- Mr McNamara: You quite rightly say that the core work of your Department is implementing the Act.
Lord Falconer of Thoroton: Yes.
- Mr McNamara: One of the problems we have had in the United Kingdom is implementing decisions where the Strasbourg Court has gone against the United Kingdom before the court. There has seemed to be a reluctance of the Ministry of Defence, the Home Office and the FCO in meeting their responsibilities and reacting to judgments, particularly the right-to-life judgments that have come from Strasbourg - the question of coroners' courts, the role, the right of individuals' evidence and so on. Do you see it as part of the role of your Department to bring together those various departments and to get a coherent reply to the Ministers' Deputies Committee rather than have this thing going on for over a decade now, as various government departments, and governments of both complexions, because of policy in Northern Ireland, are not ready to come to a conclusion, or grant powers, or allow their actions to be subject to proper supervision? In particular, in one of the cases concerning the role of the coroner's court, one of the arguments put to the Committee of Ministers was that there was going to be no real reason to worry about the coroners because there might be a public inquiry afterwards. That is not sufficient, nor is it sufficient to say we are still awaiting from the House of Lords a decision, because this has been going on for well over a decade.
Lord Falconer of Thoroton: The sorts of cases you are describing are cases where, in effect, the Strasbourg Court has said "unlawful conduct on the part of the United Kingdom Government". It is then a matter for the individual department. There is no room there for what is lawful and what is not. It is then a matter for the department in breach, or which has got the judgment against it, and the FCO, to work out what the judgment requires, and what is required in order to implement it. We are not, in that sense, the enforcement arm of the Strasbourg Court; our role is in policy formation. If a judgment has gone against a particular bit of the Government, it is for that Government department to comply.
- Mr McNamara: You do not see it as part of your job to encourage it to comply?
Lord Falconer of Thoroton: I would wish to encourage everybody to comply within -----
- Mr McNamara: What do you think of the delays of up to a decade?
Lord Falconer of Thoroton: I do not know the detail of the case you are putting to me, Kevin.
- Mr McNamara: There are a whole series in Northern Ireland, deaths mainly at the hands of the armed forces, but not only. It is a question of getting proper evidence, limiting the powers of the coroner and things of that nature - Article 6 cases and Article 2 cases.
Lord Falconer of Thoroton: You can see I am reluctant to be drawn into it. I do not know the answer. I do not know about the individual cases. I prefer not to comment, if you do not mind, when I do not know -----
- Mr McNamara: Perhaps you could comment on the principles -----
Lord Falconer of Thoroton: Sorry.
Chairman: We move on now to the consideration of the Commission for Equality and Human Rights, which was announced earlier.
- Baroness Prashar: Lord Falconer, I want to talk about the consultation process. As you know, we welcome the Government's decision to establish the Commission for Equality and Human Rights, and that was our preferred model. We also appreciate that you have not yet decided on matters like structure and governance of the new body and on its functions and powers in relation to human rights. However, it would be helpful to clarify the role of the task force that has been established to advise on these matters, and what will be its discretions and terms of reference.
Lord Falconer of Thoroton: The terms of reference are very broad. They are to meet over a period of 12 months, to advise Government. "The terms of reference are to advise Government of the role, functions, priorities and activities of the proposed Commission in furtherance of the Government's statement of 30 October on future arrangements for equality of institutions in Great Britain; provide such advice in preparation for a White Paper, and provide ongoing policy advice, including assessment of responses to the White Paper, on the range of issues described above." It is to give advice preparatory to the publication of the White Paper, which will be some time in the spring of next year; then, once the White Paper is published and responses are given, they will give us further advice in relation to it.
- Baroness Prashar: I was interested that you described the role of the Human Rights Commission as narrowly defined; it is in relation to public services and promotion of respect for human rights.
Lord Falconer of Thoroton: Yes.
- Baroness Prashar: Can you say something about what you see to be the powers and functions in relation to human rights?
Lord Falconer of Thoroton: I would prefer to do it on the basis of the commission as a whole. The commission will have all of the enforcement rights that all the current anti-discrimination bodies have. In relation to human rights, we are not, as we made clear at the time, keen for it to be able to litigate solely on human rights issues; but it would be able, in the context of the equality and human rights issues, to do investigations. We need to consider the extent to which it should have coercive powers in that respect, and the extent to which those coercive powers should either be dependent upon court-sanctioned activity or minister-sanctioned activity. All of those issues are up for discussion in the context of the consultation, the task force, the White Paper, what responses we get to the White Paper, and the advice we get from the task force after that.
- Baroness Prashar: Can I ask you about the response to our report, which was published eight months ago in March? How will you make sure our recommendations are taken into account in this process? If you reject any of our recommendations, will you provide us with reasons for doing so?
Lord Falconer of Thoroton: The Committee's report was an incredibly significant piece of work in relation to leading to the announcement made on 30 October. It will be an important source for the work of the task force, which leads up to the White Paper, and for others - that is the various departments engaged in this process. It is not for me to suggest how you see what our response to this is, but I think it would be really fruitful for there to be close links between what the task force is doing and what this Committee is doing, so that you could see how the process is developing by reference to your original report, and also by reference to the input into the White Paper and thereafter what happens once the White Paper is published.
- Baroness Prashar: How would you encourage constructive engagement?
Lord Falconer of Thoroton: I think getting in touch with the task force and see the work it is producing; identify the work you feel is of greatest value in informing what the task force is doing. The task force's deliberations - I do not what form they will take but they will be published on line and you will be able to see what they are doing. It is obviously not for me to say, but you may wish to form a view about the most effective way of inputting into that process.
- Baroness Prashar: Would you be encouraging that?
Lord Falconer of Thoroton: Yes, I would be.
- Lord Lester of Herne Hill: Following up on powers, I appreciate that you will not want to give a detailed response, but, as you know, we produced a supplementary consultation document on powers, and I wondered whether you could be a bit more forthcoming on some basic principles. First, on the investigative side, would you agree that the commission will need at any rate sufficient powers to get the relevant information one way or another to carry out an investigation?
Lord Falconer of Thoroton: Yes, of course, but in a sense that does not - assume that they get all the powers from the equality Commissions. Those powers will be transferred over to the new Commission.
- Lord Lester of Herne Hill: I did not realise that. You are saying that where the EOC or CRE have powers to carry out investigations, the new Commission will have those powers in the human rights area.
Lord Falconer of Thoroton: We are not going to reduce any of the powers that the existing Commissions already have. The issue is not that; it is much more about whether they could use those powers in relation to purely human rights issues. The issue that needs to be discussed is whether public powers have got to be used in the context of what would be an anti-discriminatory investigation under existing powers.
- Lord Lester of Herne Hill: I am sorry, but I am not making myself clear, and it is very important for the Committee. You have already indicated, in answer to questions in the House of Lords that the commission will deal with human rights generally, not only in an equality context. In the investigative role of human rights generally, is it common ground that whatever the detail, the commission will have to have the power to get the information effectively to carry out an effective investigation?
Lord Falconer of Thoroton: Yes, but I think there is an issue about the scope in respect of which those investigatory powers can be used - equality and human rights only, equality only or whatever. I do not want to give a misleading answer. I do not want to suggest there will be a new sort investigation to be conducted. All I can say at the moment is that the same powers that are in the anti-discriminatory bodies will be transferred over; precisely how much wider, in terms of scope such investigations will take place, needs to be considered in the consultation processes I have outlined.
- Lord Lester of Herne Hill: Would your answer be the same on things like third-party intervention for example? You cannot give an answer at this stage at all.
Lord Falconer of Thoroton: It is a matter for consultation.
- Mr McNamara: With regard to the question of whether it should go to the court or to the minister, how would you say that going to the minister and looking to the minister for sanction met with the demands of the Parrish principles? Would it be independent?
Lord Falconer of Thoroton: Would it comply with Article 6 in other respects? Those are issues that we need to look at. In a sense, it is tricky to be drawn on the detail of what the powers may be. That sort of issue needs to be considered in the course of consultation.
- Mr McNamara: Would you maintain your status, with your base that you would accept the Parrish principles as a basis on which you would work?
Lord Falconer of Thoroton: We would, yes; but what they would lead to would depend upon the nature of the sorts of investigations we are talking about. Where a particular sort of review is being done, it might be appropriate in some cases for the minister to be the person who decides whether or not coercive powers were used in a particular case; but in others it might not. We need to look at all that.
- Mr McNamara: So it could be.
Lord Falconer of Thoroton: Yes.
- Mr McNamara: It would not be independent if it had to go to the minister.
Lord Falconer of Thoroton: I am not sure it would necessarily follow from that, because you need to see what sort of investigation is going on and whether a ministerial filter was appropriate in relation to coercive powers. You need to look at the whole package of what powers are available before you get to that conclusion.
- Mr McNamara: If it was something that was politically embarrassing to the government of the day?
Lord Falconer of Thoroton: You frequently give ministers powers right across the piece in relation to various fields, not with a view to him performing a political function, but him looking in some quasi-judicial role at other sorts of issues. I do not know what the answer is until one looks at all of the various aspects in relation to the particular sort of investigation that the commission is given power to do.
- Lord Lester of Herne Hill: I am a bit dismayed because I had thought that the position taken by the Government was slightly broader. On public inquiries, I quite accept that the Government does not want a major law-enforcement role and human rights role. I quite understand that, and I quite understand that it will not mimic the EOC and CRE powers; but I had thought that the Government would be sympathetic to the human rights side of the commission carrying out public inquiries in the human rights fields, beyond equality. If that is right, then would the Government not also agree that there must be some power to make sure that the public inquiry is effective in getting access to information and the rest of it?
Lord Falconer of Thoroton: As to the first part; are we sympathetic to free-standing human rights inquiries; that is something that needs to be consulted upon in the course of a consultation that is going to take place between now, the White Paper, and thereafter. If and insofar as there are inquiries that could cover human rights, whether alone or separately, of course we would like those inquiries to be effective; and then we would also consider what powers you would need to give such a body. Both issues have got to be consulted upon.
- Lord Lester of Herne Hill: If the body cannot carry out public inquiries - I suppose this is a piece of rhetoric, but I ask the question: what else should it be doing on human rights if it cannot even do that, and should there be an equality commission?
Lord Falconer of Thoroton: No, because it was made absolutely clear. Following very much the recommendations of this Committee, you saw that we agreed to the commission having a very significant role in relation to promoting human rights; and there are other ways of promoting human rights. I am not seeking to imply a concluded view in relation to the first two questions you asked. There are ways of promoting human rights, I believe, beyond inquiries.
- Baroness Prashar: Lord Falconer, I am sure you would agree with me that for any new commission to be credible and effective, it has got to be seen to be independent.
Lord Falconer of Thoroton: Of course.
- Baroness Prashar: As you may recall, in our report we said that in ensuring the commission's independence, it should report to and be accountable to Parliament rather than to the Government. What are your views on that?
Lord Falconer of Thoroton: I agree completely with the principle underlying your question. The commission has got to be both independent and seen to be independent. The current Equality Commission, the anti-discrimination Commissions, would definitely be regarded as independent. They do report to Government. It is the most normal way of setting up bodies such as this. It does not, I believe, compromise their independence. There have been suggestions - and I cannot remember where they came from - that the funding and arrangements should be like the National Audit Office. But that is a unique body performing a particular function. I do not believe that it has got to be set up like the National Audit Office, in order to carry conviction as an independent body. I think the proof of the pudding is in relation to CRE, EOC and the disability body, all of which would be regarded as very independent; and yet they are reporting to Government rather than to Parliament.
- Baroness Prashar: In terms of human rights, it is a question of holding Government departments accountable, and ensuring the process of human rights. It seems to me that it has to be accountable to Parliament so that it is seen to be independent. The proposed children's commissioner is to be accountable to a minister, who will be responsible for putting a report before Parliament. However, in terms of perception, it would look odd if this new body was seen to be responsible to a department and reporting to Parliament, whereas if it was actually reporting to Parliament, it would be seen to be a creature of that and therefore -----
Lord Falconer of Thoroton: Apply that test to CRE, which does not report to Parliament but the Home Office. Is that regarded as an independent body? Yes. As far as the perception is concerned, I do not think there is a perception in relation to those bodies that they are not independent.
- Lord Lester of Herne Hill: Would you accept that some people disagree with you, including me? I will write to you about why I disagree. There are serious worries about whether the CRE is sufficiently independent of the Home Office in practice if not in form. Since I helped set it up, what I am saying is not said light-heartedly.
Lord Falconer of Thoroton: I understand that, and I did not regard it as a light-hearted remark. My view in relation to the general perception about the CRE - and I will wait obviously to see what you say - is that it is regarded as both independent and a body that is not remotely a creature of central Government.
- Baroness Prashar: It is not only perception; it is also a question of the resources devoted to it and what support it is given. It seems to me that all those factors have an impact on the independence of the organisation. If you are getting your pay from a Government department, you are looking over your shoulder. They are very serious matters to be considered.
Lord Falconer of Thoroton: They are very serious mattes to be considered. In terms of resources, there are two schools of thought. If you are more separate from the executive, does that make you a stronger or weaker body, in terms of getting resources from Treasury, which would be the issue over time. Some people would say that the further away you are, the less close you are to the Treasury as well in that respect. There is a balance to be struck. We need to consider everything you have said, obviously, but the critical point is to accept, as I do unreservedly that the body must be, and must be seen to be independent. That is the critical issue we are addressing; and I do not think there is any dispute between us in relation to that.
- Chairman: Have you identified a particular department that is going to sponsor this body?
Lord Falconer of Thoroton: As you know, the Department for Trade and Industry is currently the co-ordinating sponsor for the new body. I do not want to set any hares running at the moment in relation to possible changes in response.
- Chairman: The finest minds are working on it at this moment, are they?
Lord Falconer of Thoroton: I would not go that far.
- Lord Judd: We are concentrating on accountability here, and I am not quite sure my question relates to that, but I have been very attracted by your mission of zeal in terms of prophesising and spreading the message about all this - and that is terrific. Is not the relationship with an individual ministry a bit complicated in that respect? If you are reporting to a ministry and you are also engaged in trying to get it to adopt a particular culture, as distinct from dealing with the practicalities, that is problematic, is it not? A freestanding position might help.
Lord Falconer of Thoroton: Reporting to an individual ministry gives you two advantages. One is that it might make you closer to debates about money, when the money issues come up. Secondly, it might put you closer in to the executive in terms of access to the executive. Those two pluses are pretty considerable. One of the things that the commission has got to do is to try and mainstream an equality and human rights culture right across Government, let alone right across the public. I think a close independent relationship is a good thing in this area; and that means being strong enough to be able to criticise, but close enough to be able to operate in partnership in relation to those issues where the Government and the commission working together can make a real difference. I think it is a quite difficult judgment to make, but it is the two things that you want: independence, which is incredibly important, and the ability to work with Government, where Government is going to be helpful to the agenda you want to promote.
- Lord Lester of Herne Hill: I think we see advantages in having an integrated approach with an equality and human rights commission, but there are two potential disadvantages that I would like you to deal with, if you would. One is that the human rights side might simply be an add-on and poor relation of the real driving part of the commission, which is the equality part; and opposite to that is that the equality side will be blunted and sharpness of equality will be blunted because they will have to deal with free speech, the right to life, privacy and torture and all the rest of it - a huge agenda, even if it is just civil and political rights. That could distract a commission from an attack on inequality. How do you see a way of steering between these two rocks, so that the human rights side is taken seriously but it does not become overwhelming so far as the equality side is concerned?
Lord Falconer of Thoroton: The putting together of equality and human rights in one commission was done in part to ensure that the first argument did not occur; that human rights would not be seen as an add-on, a second strand of equality; but instead it should be something that informed all of the activities of the Equality Commission; that if you deliver human rights, you would also deliver equality in a way that is fair and acceptable. Although I fully understand the first argument that you are running, the judgment this Committee reached, which was before the Government reached it, was that you should put them together so that it would have the effect of mainstreaming both human rights and equality activity. I think that is incredibly important. What is the risk of the human rights agenda overwhelming equality? Human rights and equality go utterly hand in hand. I cannot think for one moment that the existence of the human rights agenda could possibly, in any way, blunt promotion of anti-discrimination activity of the elderly, on the basis of race or on the basis of sex. If your worries over torture and fair trials become so significant that the commission does not deal with the other things, I do not think that is likely to happen for one moment, particularly having regard to the way in which the commission has been set up and having regard to the involvement of anti-discrimination bodies.
- Lord Lester of Herne Hill: Can I sharpen the question? The problem is partly one of resources and a huge managerial skill and thinking through. If this commission is going to have to tackle all the strands of unfair discrimination, and monitoring, monitoring positive duties and bringing law-enforcement proceedings, and helping individuals with their cases, all that is on the equality side. It also has to deal with the wider human rights agenda, and it has got to square the different interested groups - the disabled, women, ethnic - all of whom worry about whether they get enough priority - how is a single body, which, as you rightly say, we recommended, going to be able to grapple with that in practice unless it is well resourced and incredibly well managed by high-flying civil servants who go on secondment to do it?
Lord Falconer of Thoroton: The points you are making are not just about human rights and equality put together, but all the various strands that are elsewhere and are being put into one body. It will be, I believe, a difficult managerial task; but the gains that can be obtained by making it work, and our belief, which you the Committee share, that we can make it work and that the gain will be obtained, means that it is well worth doing. Does it mean good management? Yes, it does. Does it mean proper resources? Yes, it does. What do I mean by "proper resources"? No doubt that will become an issue down the line.
- Lord Lester of Herne Hill: It does mean getting rid of dead wood on existing staff and starting afresh to some extent, and not being saddled with 30 years of custom and practice. This is to be a new body, a new commission, setting out where necessary with new, well-qualified staff.
Lord Falconer of Thoroton: Yes. We have made it absolutely clear in all the announcements we have made that this is not an amalgamation of existing arrangements or simply moving the existing bodies into one building; it is a much, much more profound and fundamental change about how you approach the issues of equality and human rights in relation to their promotion.
- Mr McNamara: Have you had discussions with the appropriate trade unions?
Lord Falconer of Thoroton: I have not personally had discussions with the appropriate trade unions, and I think the issue about how you set it up and what you do, and what the arrangements are, are things that need to be discussed when there is more flesh on the bone, which will only occur, I suspect, once the White Paper has come out.
- Chairman: I do know that the TUC was represented recently at a briefing with the Secretary of State on the proposed commission.
Lord Falconer of Thoroton: Yes, I am sure that is right.
- Mr Woodward: In thinking about the scope of this commission and how it is going to work, I am minded to ask you about the present situation. I note your reticence to talk about specific examples, but we will see if you will in this instance. In relation to the Gender Recognition Bill, you spoke earlier in this session about how you see your role as championing the role of groups for human rights within and to Government.
Lord Falconer of Thoroton: Championing human rights. You say championing groups.
- Mr Woodward: You are the person who is representing the case of human rights in Government departments. Here we have a Bill, which, broadly, most sensible, decent people could not remotely quarrel with, and it is to be welcomed - so let us put that very clearly on the table.
Lord Falconer of Thoroton: I agree with that.
- Mr Woodward: But in the context of this Bill - and the Committee has looked at it - on the one hand the Government gives, and on the other hand it takes away. There was a very good story today by Cassandra Jardine in the Daily Telegraph about a couple who have been married for a very, very long time. The husband has had the operation, and these two people live, married with children; and in order to get the recognition that this woman now wants, and that the Bill will give, there is one unfortunate consequence in this Bill which is that they are going to have to divorce. It does seem pretty monstrous to some of us that a couple who have been through a very difficult time for 30 years perhaps, now have the opportunity to finally get what one of them has always wanted but at the same time our only condition is that she must divorce to enjoy this right. On the one hand you are given a right, and then it is taken away. My question is - and this leads up to the Equality Commission - who is standing up at the moment for the rights of that couple and that trans-sexual, who, under legislation that the Government is introducing, will cause them to divorce if this lady wants to have her birth certificate changed. Who in Government is standing up for a woman like that, or people like that?
Lord Falconer of Thoroton: The Gender Recognition Bill is plainly part of my Department's responsibilities; and human rights forms part of that. The issue arises because the effect of the Gender Recognition Bill is that both the parties who are married become of the same sex. That is where the problem arises. I do not know what the consequence is. Does that offend against human rights that you end up in that situation? I do not know what the answer to the question is, so I do not know whether there is necessarily a conflict of interest.
- Mr Woodward: Absolutely, but in a sense I am trying to push that here. Here we have an example that is more complicated because there is a conflict of interest because it is not only you, as champion, but it is in your Department.
Lord Falconer of Thoroton: I would not regard that as complicated. It is a policy matter.
- Mr Woodward: I want to look at this in a very sensible way, and I know you do too. What I am really asking is, who is doing the thinking on behalf of two or three hundred married couples that are in this sort of position right now as a consequence of this legislation? There is no question that it is brilliantly well-intended, but it may cause the most monstrous suffering to people who have already been through what some of us regard as more than enough, in order to establish what most of us would regard in the loosest sense as their human rights.
Lord Falconer of Thoroton: The responsibility is primarily that of my Department. The issue that you raised we need to think about. Until you raised it just now, I was not aware of it. Can I write to you about it?
- Mr Woodward: Yes. That leads me to my secondary point. It is in a sense whether or not there may be assistance given to people like this, because if we think about this new unified commission, which everybody here thinks is an absolutely first-class idea, is there not a case for Government to really consider whether or not the time has come to strengthen all of this by introducing a unified body of equalities leg, say an equalities act? Are you looking at that, and will you give consideration to that?
Lord Falconer of Thoroton: We do not think the right thing to do at the moment is to introduce one equality act, which is what you are proposing. It would make the thing a lot more complicated and would lead to a situation where there would be a long legislative process. It would take time to go through that, and it would not necessarily produce any better result than existing legislation. We think the important thing at the moment is to concentrate - and there are exceptions like disability legislation that will produce a draft act - on making the existing framework of law work, rather than producing yet further, possibly changing or possibly consolidating legislation.
- Mr Woodward: Although let me immediately point out, in relation to the Gender Recognition Bill - if you had had a chance to see our report on this, you would have seen for example that one of the consequences from which transsexuals suffer is discrimination in relation to housing. It is a group of people, many of whom are in very difficult circumstances at some points in the transition, and they find for example, a man as a woman, that it is almost impossible, at a time of real difficulty, to get housing because they are discriminated against; and yet the current legislation does not look after them.
Lord Falconer of Thoroton: Yes, but that does not lead to the conclusion that you need a single equality act which brings everything together in one place. If you tried to do that, you would then get straight back into quite a long debate about precisely what would be in it and what the effect would be. I am not sure that that should be where the focus of activity is. There is quite a lot, for obvious reasons, in legislative terms, like the Gender Recognition Bill, but also the draft Disabilities Bill, where we could look and see specific areas where improvement is needed. Is it right to, as it were, go back to the drawing board on the qualities legislation overall? I am not sure that it would be a particularly good use of resource and political energy.
- Lord Lester of Herne Hill: Lord Falconer, the problem is that the parliamentary timetable is always so tight that you cannot make the kind of necessary changes to equality law without having a big push for it. If you just take the example that Mr Woodward gave, if you are, for example, to impose a positive duty in the gender field, to take the simplest example, to match the positive duty in the race field, you would need primary legislation. For years we have been saying, quite understandably, "we will do it when parliamentary time allows". How will you make our equality code more coherent so that, for example, discrimination in housing and education is tackled across the board, unless either you have the kind of bill I tried to introduce, or you commit yourselves to piecemeal legislation across the board, which is more cumbersome? I do not follow how the Government will change the substance of law, given the parliamentary timetable, without either having a single bill which 260 MPs have to put their names to in the Commons to advocate that, or to commit yourselves to a much more complicated series of patchwork measures to bring our equality law up to date? How can you do it?
Lord Falconer of Thoroton: You put the choice very clearly. A detailed equality bill would involve a great deal of detailed thought and consultation, and a process by which you would draw in as many people as possible to a sensible bill. There would then be a quite legitimate, complicated and pretty intense parliamentary process, which would take a long time. If we do that, that will be where the political and policy energy goes. It would be a process of years, not a process of months. Instead, we have done things like the Race Relations Amendment Act, which I believe to be a very significant Act, which in your terms is a patchwork change to existing arrangements. The Gender Recognition Bill is another example. They are do-able. The setting up of the Commission for Equality and Human Rights is another example of what has been done. The Disability Rights draft Bill is another example. These look do-able and they look to be a more sensible way of putting what energy and resource is available to make changes. It is a bitter choice, but we have made the choice in the direction of trying to make improvements where we can, and giving impetus to the commission and to the mainstream equality and human rights.
- Lord Lester of Herne Hill: When can women, they being more than half the population, expect a positive duty in their area in a way that applies to ethnic minorities, for example? It will only be when the parliamentary timetable allows, which will probably not be this side of the general election.
Lord Falconer of Thoroton: But it is always possible to identify legislative changes that we should be making. You should completely transform the legislative framework; you are saying, "have a joint equality bill".
Lord Lester of Herne Hill: I am asking you to do what we were able to do in the Labour Government in a few months which is taking three years.
- Lord Judd: This has been very interesting. You have put tremendous emphasis on the fact that this is not going to be an amalgamation, but much more interesting than that is something relating to an earlier point. How can you completely fulfil your tremendous ambition for your role and your Department if you are going to insist that it reports to one particular department of state? There surely has to be a sense of engagement of ownership, of the same relationship for everyone across the whole spectrum of Government, in the same way as perhaps some underpinning legislation would increase your authority?
Lord Falconer of Thoroton: I am sure that the critical thing is about a fundamental change in culture. I am sure that whether that occurs does not depend on whether or not the body reports to Parliament or one department. I am sure it does not depend on whether or not you produce a comprehensive act dealing with all equality. It depends upon whether or not it is possible to convince that there is real drive behind the success of the commission and promotion of human rights in the Government and beyond. Do I think that if we spent a lot of time trying to get legislative slots, covering the whole of the equality stuff, that would make a difference? I do not think it would. I think the critical thing is to give it political will and political drive.
- Chairman: Lord Falconer, can we move on briefly now to the question of public authority? During the debates on the Bill, the then Home Secretary, Jack Straw, said that public authority provisions in the legislation were designed to take account of "the fact that over the past twenty years an increasingly large number of private bodies, such as companies and charities, have come to exercise public functions that were previously exercised by public authorities". It is clearly envisaged that some potentially private organisations will fulfil a public function, and that they would be included where they were seen as standing in the shoes of the state. Is it still your view, the Government's view, that where a private organisation performs a public function, for example provision of public housing, they should be bound by the Human Rights Act?
Lord Falconer of Thoroton: I agree with the proposition that it was always made clear that the fact that you were "a private body" would not necessarily mean you were not a public authority within the meaning of the Act. I am also aware that the way case law is developing in the domestic courts is drawing some fine lines. I am aware, for example, of the chief Court of Appeal decisions, one about the Poplar Housing case and the Leonard Cheshire case, which follows the Poplar case both in terms of time and the way it is argued in the Court of Appeal, on the basis that they are following the dicta given in the Poplar case. There were always going to be difficulties about where the line was to be drawn, if you are dealing with hybrid organisations; and both Leonard Cheshire and the housing association in the Poplar case are hybrid organisations. It is early days. I can fully understand why some people believe that the words "public authority" have been drawn too narrowly, compared with what was said at the time. All I can say at this stage is that I shall keep this concern under close review, and will pay particular attention to the need to intervene in future cases on the meaning of section 6(3)(b). I think I need to see how it develops because it is quite early days in relation to how these things can develop.
- Chairman: I presume that you must have what you would acknowledge to be quite an urgent concern about the fact that some of these organisations, following the case law, that can provide a public service, can breach a person's Convention rights and not be held directly liable.
Lord Falconer of Thoroton: I think everybody was aware that there would always be a difficulty about where you draw the line. I am concerned to see how the case law is developing, but we need a bit longer to see where it eventually settles. The lines that have been drawn - although one can understand the reasons in each case - the courts need a bit of time to see a bigger picture.
- Chairman: Following on from that, is it your view that when a public body contracts out the provision of services to a private organisation, the public body retains liability for breaches of Convention rights by the private body in delivering those services? Who is responsible?
Lord Falconer of Thoroton: I think it would depend upon the facts of the individual case, but if the public body contracts out to a private organisation and that private organisation is not held to be a public authority, even in the discharge of the rights, a question could then arise about the public authority's liability. That would depend upon all of the circumstances, including what arrangements were made between the public and private body, and what was known to the public body at the relevant time.
- Chairman: Has your Department or anyone in Government made any assessment of the practical impact of a narrow interpretation of the meaning of "public authority" for human rights protection?
Lord Falconer of Thoroton: The short answer is that it is not beyond the most general assessment, in terms of people not seeking by research, but by trying to evaluate what effect, in judgment terms, it might have if this particular case went that way, or this particular body were held not to be a public authority. I think it is inherent in the definition adopted that there was bound to be some uncertainty at the margins.
- Lord Plant of Highfield: I just wonder how far this could become pretty important for Government policy, let alone human rights, in the following sense; that obviously the Government wants, more and more, to turn over the delivery of services as opposed to the funding of services to charities, voluntary organisations and so forth. If, as I think is also the view of the Government, some of the best organisations in this field are those with a strong ethos, perhaps a religious ethos in the sphere of social work or schools, how might that affect Government? If a department is letting a contract to a voluntary-sector body with a strong ethos, might it not be inclined to do that if that ethos means that that voluntary group would not recruit people in an open situation of equality of opportunities? It may have a strong religious view, and they will not recruit people who do not share their religious values. Might the law as it currently stands inhibit the Government from achieving its aims of putting money into the hands of the voluntary sector, if those voluntary sector groups have a strong ethos which may not be compatible with equal opportunities recruitment?
Lord Falconer of Thoroton: There are two aspects. The first is how the non-public authority on this hypothesis to which public services have been contracted, deals internally with its own staff, for example. That is one issue. The other issue is the extent to which the non-public authority on this hypothesis treats the people who provide the service. On both fronts, the more there is contracting out, the more the issue becomes important, for obvious reasons. The fact of the importance of the issue on both those levels, which I accept, is not a reason for not waiting to see over a period of time how the case pans out. I do not mean by that to suggest that it is not an important issue, but it has only been going for a comparatively short period of time, and these decisions are coming in the first two or three years. One needs to see how it develops.
- Chairman: But there are pressing concerns now for organisations like local authorities and the private sector organisations they work with. What concern do you have, and what advice could you give them, about the difficulties they would have in identifying their respective responsibilities under the current law as a result of court decisions, on the meaning of "public authority"?
Lord Falconer of Thoroton: There are two questions there. In relation to certainty, I hope that as time goes on the principle will become sufficiently clear from decided cases that people have a moderately clear view. Secondly, if and in so far as there will not be certainty in some cases, which there might not be, then one aspect of that - which does not provide a solution - is that if you are a public authority contracting out to a private authority, you need to have clear contractual relations between the public and the private body as to what is expected from the private body.
- Mr McNamara: With regard to the last point, what guidance then will your Department give to local authorities and Government departments in contracting out, that in future contracts people who are going to have the benefit of those contracts should accept that they are going to be bound by the terms? That is the first question. The second question is, why does the Government not accept as a general principle that any organisation that receives public money should be expected to observe the terms of the Act?
Lord Falconer of Thoroton: That is the second point, and that is not what the Human Rights Act says.
- Mr McNamara: I know that.
Lord Falconer of Thoroton: People get public money in a whole variety of ways. For example, lawyers get Legal Aid. Should they then be treated like a public authority? There are hundreds of other examples. It may be extending it too far. As to what advice will be given, the bodies that will be most affected will be those in and around local government provision primarily, and we are in discussions with the Office of the Deputy Prime Minister about the right direction to take at this stage. Plainly, there is an issue about policy and also an issue about how the case law develops.
- Mr McNamara: Do you accept that people who accept public money should carry out public policy, and in that sense -----
Lord Falconer of Thoroton: I do not go as far as saying that everybody who receives public money is obliged to comply with the Human Rights Act. The Human Rights Act only went as far as placing burdens on public authorities, which can be private people performing functions. People who get grants of various sorts may be in every single respect private bodies.
- Lord Lester of Herne Hill: You have given a very important answer about contract. You aid that a lot of this depends on the knowledge of the public authority about what the private body is doing.
Lord Falconer of Thoroton: I said it can do; it depends upon the facts.
- Lord Lester of Herne Hill: It is clearly a relevant factor.
Lord Falconer of Thoroton: Yes.
- Lord Lester of Herne Hill: Could you not have a policy which you could encourage all public authorities to pursue, whereby when they delegate functions to private bodies, there are contractual terms making clear that the public body will regard the private organisation as expected to carry out obligations in place of the public authority that comply with the Convention rights, so that when it comes to a dispute, the Government's understanding or the public authority's understanding is embodied in that private law in a way that would be relevant to the courts and anybody else?
Lord Falconer of Thoroton: That is something that we need to consider. I am discussing that with the Office of the Deputy Prime Minister. I think I should write to the Committee. We have not fully worked out the implications of it, so I cannot commit myself one way or the other. It is something that needs consideration.
- Chairman: I wanted to raise a concern that has been drawn to the attention of the Committee, which some may say is a red herring, which is that identification even as a hybrid public authority under the Human Rights Act, would place organisations such as housing associations within the public sector borrowing requirements, thus jeopardising their effectiveness. Can you confirm for us for the record that this would not be the case?
Lord Falconer of Thoroton: That does not sound right. I cannot see the connection whatever between a housing association being declared to be a public authority, within a public sector borrowing requirement. The idea seems utterly baffling. It does not strike one for one moment as being either economically, financially or, as a matter of common sense, right. My immediate reaction is that it is not right, but can I write and confirm that to the Committee? If there is any suggestion that that is not right, I will make that clear; but it does not seem to me to be right at all.
- Mr McNamara: In relation to international obligations, one matter that concerns us is Protocol 12. Is the Government going to ratify it?
Lord Falconer of Thoroton: Protocol 12 is included in the review that is going on. We are already bound as a matter of international law by the freestanding band of discrimination in the covenant of civil and political rights. Accession to Protocol 12 would add a further dimension to the UK anti-discrimination protection, but I have to say that the prospect of litigation on such a loose and uncertain provision as Protocol 12 is one that any responsible government needs to weigh very carefully, and that is precisely what we have been doing.
- Mr McNamara: A lot of other governments have ratified it.
Lord Falconer of Thoroton: I know, and we are considering it. I have identified the risks in relation to it. We hope to reach a conclusion in relation to the review soon, but it would not be sensible to ratify or to accede to and then ratify if we did not think the conclusions or what would happen would be sensible. I am expressing considerable reservations about it.
- Mr McNamara: I wonder why we signed it in the first place, in that case? Perhaps we just wanted to be in the club but not carry out its obligations. Can I draw attention to one thing, which may or may not be the responsibility of your Department, and that is concerning racism, which is established under the European Community. At the present moment there seems to be a desire to clip its wings and prevent it from having any initiative in looking at questions of discrimination in the European Union. I do not now if it falls within your aegis or not, but it is concerned with human rights and I would like to have your comments on what is going on.
Lord Falconer of Thoroton: It is a Home Office responsibility. Can I write to you about that?
Mr Shepherd: The Prime Minister made a statement last year that if the Government did not meet a reduction in asylum-seekers for instance, he would consider a fundamental review of the human rights legislation. That implies that if the government did not meet its criteria, it would amend or change human rights legislation. Am I right in -----
- Mr McNamara: The Refugee Convention.
Lord Falconer of Thoroton: We have no plans to change the human rights legislation.
Mr McNamara: Or the Refugee Convention?
Chairman: The Prime Minister wrote to the Committee, because I wrote to him on behalf of the Committee after he had made the statement, so we have a letter, which is in the public domain.
- Lord Lester of Herne Hill: Rounding up on the review, I wonder whether you might bear this in mind. I quite understand about Protocol 12 and the complexity, but could you bear in mind that all the other major European countries except ourselves allow the Human Rights Committee to receive individual complaints under the international covenant of civil and political rights, and almost all under the CERD on race discrimination, and almost all have ratified two of the Protocols 4 and 7. When you consider the review, could you try to move us to a position where we are not in unsplendid isolation compared with our major European partners within the European Union as well as in the Council of Europe?
Lord Falconer of Thoroton: I certainly will.
Chairman: Lord Falconer, thank you very much for your patience and your willingness to engage with us today. I think that probably when the history books are written the Human Rights Act will be seen as one of the great achievements of our Government.
