CORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 150-vi

HOUSE OF LORDS

House of COMMONS

MINUTES OF EVIDENCE

TAKEN BEFORE

JOINT COMMITTEE ON HUMAN RIGHTS

A British Bill of Rights

Wednesday 21 May 2008

THE RT HON JACK STRAW MP and MR MICHAEL WILLS MP

Evidence heard in Public Questions 420 - 499

USE OF THE TRANSCRIPT

Oral Evidence

Taken before the Joint Committee on Human Rights

on Wednesday 21 May 2008

Members present:

Mr Andrew Dismore, in the Chair

________________

Examination of Witnesses

Witnesses: The Rt Hon Jack Straw MP, Secretary of State for Justice and Lord Chancellor and Mr Michael Wills MP, Minister of State, Ministry of Justice, examined.

Q420 Chairman: Good afternoon. This is our last open session in our inquiry into the British Bill of Rights. We are joined by the Rt Hon Jack Straw MP, Secretary of State for Justice and Lord Chancellor, and Michael Wills MP, Minister for State, Ministry of Justice. Welcome to you both. I think you wanted to make an opening statement, Jack?

Mr Straw: Chairman, we thank you for the opportunity to give evidence here. I wanted to make a few remarks in terms of opening to try and set the context for a British Bill of Rights and Responsibilities. When we had the idea of incorporating the European Convention into British law, which was actually in opposition in the mid 1990s in co-operation with the Liberal Democrats, and then when I brought the Bill forward sometime in 1997, and during its parliamentary passage I made it clear, as did everybody else, that this was not a destination. It was bound to be the start of a new chapter of the development of British rights and concomitant responsibilities. Interestingly at the time there was some contention about whether it was appropriate to incorporate the European Convention itself and I was anxious to achieve a situation where we had a consensus so far as was possible between the parties. During the process, both in our House and in the Lords, as well as just explaining what we were doing, various changes were made to the Bill, not to detract - we could not and would not - from articles of the Convention, but for example over issues of remedies to try and provide some satisfaction for worries by the churches and religious establishments. At the end of that I recall, and it is shown in the record, that Lord [Nick] Lyle, who was the Shadow Attorney General, leading for the Conservatives used the phrase that he "wished the Bill well" at third reading and there was no vote against it at third reading. Reflecting on what has subsequently happened, there is no question that it has become a received part of our constitutional arrangements. It is highly valued by many people. At the same time, and particularly given the shock and the extreme stress-testing to which all legal regimes and democracies have been under since 9/11, it has also been suggested by some that it is some kind of "terrorists" charter. That is inaccurate but part of the framework against which we are working today. The question then arises what is the purpose of developing from the Human Rights Act, building on it and not detracting from that Act or the Convention, but into a British Bill of Rights and Responsibilities? First, I think there is a platform in our politics to develop the Human Rights Act because, although I am quite sure that whatever we propose at the first stage will obviously be subject to a debate, and I hope it is, all three parties now accept contemporaneously that the Convention rights remain. That is true of our party, true of the Liberal Democrats and it is also now true of the Conservatives. That is a really important building block because I have always been conscious that whilst constitutional changes may well be contentious - you cannot always achieve this - but they are more likely to endure if you achieve a broad measure of agreement and should not be partisan tools for any one party. What are we doing? The first thing is to broaden the base of what it means to have a Bill of Rights. To say what everybody knows intellectually, or if they think about it they appreciate that with rights go responsibilities, with privileges go duties, but it is not necessarily obvious to people because that fact is reflected in parts, although not all explicitly, of the European Convention. Therefore it has certainly been my judgment for a long time, and it is shared now across government, that we should have what amounts to a single text which says yes, these are your rights, but along with rights goes responsibilities. I was asked this question earlier today: how would I explain that in my constituency? I would actually find it very easy because I have people coming to see me often who have run into trouble with the law who are claiming rights and I wish them to be able to claim those rights, but I wish them to understand that they also have responsibilities to their victims, to their neighbours and to wider society. I would also say to them if you think about other countries which you may well have visited - France, the United States or South Africa - in each of those countries people have a better idea of what their rights and responsibilities are because they have single texts which have often come out of real internal or external conflict - France, internal conflict, in the United States a bit of both, in South Africa out of internal conflict - and so people have had to articulate what their rights and responsibilities are. It gives people a better set of handholds as citizens. That is one thing we want to do. The second is to look at whether, within what would amount to a single text, it is possible safely to develop what is grouped as economic and social rights. There are some economic rights whereby in my judgment and across government you run straight into resource allocation and that it is simply not appropriate for the courts to make those decisions in place of government. That is also the position of the judiciary - Baroness Hale recently and Lord Bingham - but there are other social rights particularly and some economic rights which are already the subject of a great body of detailed specific legislation. What we are looking at is whether in many of these fields - education and health are two obvious ones - it is not possible to distil the basic rights and responsibilities that people have in these areas into a clearly comprehensive statement and be subject to the detailed law as well, but it would still give people a sense of what they are entitled to from others because the state in a democracy is everybody else and what they are expected to give; in other words, what they give and what they get. The last point I wanted to make as far as that is concerned, as you and your Committee are better aware than most, there are really three alternative models if you are going to put rights in a text. You can have declaratory text which is non-justiciable; you can have deliberative and interpretive text, which I will come back to, or you can have text which itself is deliberately and explicitly justiciable in its own terms. Where we are in the development of these rights is first of all to say there is a point in having just declaratory text. It is not an idle exercise if, in an overall statement of rights and responsibilities, you simply end up with declarations because declarations can serve an important purpose. My understanding is that that is the case for certain declarations of rights in the Irish constitution. At the other end of the scale I am very cautious to say, nearly opposed, and so is Michael, to the idea that we should develop new generic rights which were themselves justiciable because I think that would cause more problems than it solved, but we both believe that this is going to be a long-running and iterative process. There is quite a case for developing deliberative and interpretive principles in these fields which would not give rise to a cause of action themselves, but would be used when, for example, people were accessing their rights of education or health. That is a sketch of where we are and I hope that is helpful.

Q421 Chairman: Thank you for setting out why you are pursuing the Bill of Rights issue and why you think it is needed. Is it consensus across government or is it a MOJ project? Is everybody signed up to it?

Mr Straw: There is indeed a consensus across government. What was in the Governance of Britain Green Paper which came out in early July last year was discussed and explicitly agreed in Cabinet. The Prime Minister, in his statement in the House on 3 July, made explicit reference to the possibility of developing a Bill of Rights and Responsibilities. It falls to Michael and to me to develop this and to officials and lawyers in my department who, if I may say are extremely good, to do the legwork but we cannot possibly deliver everything here unless we have the rest of the Government on board. This is not just a narrow discrete area of criminal procedure where most of the rest of Whitehall, provided it does not cost anything, leave it to MOJ Ministers; this is across government.

Q422 Chairman: You mentioned that there is a broad consensus now about Convention rights. Does the same apply in relation to the Human Rights Act? Can we have your assurance that there is nothing in the project that is going to weaken the Human Rights Act?

Mr Straw: You have that assurance, yes. There is consensus across government about that and I have said that on endless occasions. There is not a political consensus about that at the moment. It is for the opposition to speak for themselves essentially. What they have said, as I understand it, is that they would wish to modify the Human Rights Act and they believe that if they were to modify the use of the articles of the Convention this would give them greater benefit of the margin of appreciation. One of my pedagogical enterprises at the moment is to explain that this will not happen and there is no way, as long as we remain committed as a nation, which the Conservatives have said we should to the Convention, that we can arbitrarily legislate the domestic legislation to change what Strasbourg is going to do and subject to Strasbourg; indeed, we would end up in a worse situation. If your colleagues will accept that one of the benefits of the Human Rights Act, and one of the many ones I argued for myself ten years ago, was that we had been in the worst of all worlds. We were subject to the Convention and Strasbourg but we were not able to develop our own jurisprudence with the benefit of our extremely good judiciary. We have now and actually it is helping to mould what happens in Strasbourg. There is a last point here which is there is a reference made in Mr Cameron's speech as to what happens in Germany where it is believed that they get a better margin of appreciation. That is not the case. There is this arcane argument for us - not for the German lawyers - about competence versus competence. Leave that aside for a second. The reason why it is not an issue in Germany is because the German constitution provides a greater level of protection than does the European Convention on Human Rights for reasons that everybody historically will understand. All of us, those who have been, say Home Secretary, Foreign Secretary or Justice Minister, have concerns about the interpretation of Chahal, for example. Chahal was a judgment given in 1996, four years before the HRA came into force, and there is no way if we want to stay within the Council of Europe and the Convention that we ourselves can legislate round that and I do not believe any British Government would do so.

Q423 Chairman: The follow on question from that is, perhaps on that point you make about Germany having rights that go beyond the Convention, what will the Bill of Rights do that the Human Rights Act does not do? Will it give people additional rights beyond as the general constitution?

Mr Straw: It does two things: one is it brings out that with rights go responsibilities. I could go into this.

Q424 Chairman: We will ask you about that as we go along.

Mr Straw: There are plenty of examples in the texts of other nations' constitutions where this balance is provided explicitly. If I think about my relationship with my constituents, to be able to say to people you have certain basic rights and responsibilities and here is one little booklet or a few pages on the net that you can access that tells you this would be terrific. Other countries have arrived at a position like that and I do not see why we cannot. That is not more new rights but it is putting rights in a proper context. One of the things that has concerned me is that the upside of a consumer society is that people have all sorts of consumer goods and they can get what they want now. The downside is that relationships tend to be commoditised and people see rights as some good which in some ways they do not even have to pay for and they can just take and that is not the case. Although the balance between rights and responsibilities is not symmetrical, rights of the Convention kind are those which we have against the otherwise over-weaning power of the state. Responsibilities tend to be more horizontal to your neighbour in the biblical sense as well as to the community which sits above the state. They are really a very important part of helping to make a democratic society operate; that is one thing. The other is in this area of economic and social rights, which is not really covered to any serious degree in the Convention. It is in plenty of EU text and to a degree in the Charter of Rights in the Lisbon Treaty but not here.

Q425 Earl of Onslow: Secretary of State, those of us who come to the Bill of Rights from what can best be classed as an old-fashioned libertarian state, it seems to me there are two points here: one is the only responsibility the subject has is to obey the law and nothing else, so you cannot legislate for any other responsibility. Secondly, what has been concerning me, and I think quite a lot of other people, is the increasing power of the executive to pass acts of parliament - for instance, the abolition of double jeopardy, the attempt to abolish trial by jury for fraud - there is a whole list of these things. Henry Porter is a perfect example of somebody who writes them, which I feel extremely strongly about. The latest one that has come up is this thing of saying that all telephone records, all email messages, all internet access, should be kept and logged for a year is what it is. Those seem to me something which the State should not do. It is no business of the State. It is an abuse of the individual liberty and the liberty of the subject. We have on one side a, for want of a better word, the intellectual side of Tom Paine and on the other side you have the intellectual side which is the common law side - the lovely, wonderful English side - which says the point of the law is to limit the power of the state. The subject can do anything it likes unless it has been told it cannot by the Queen in parliament. It seems to me what is missing in the whole thing of the Government's approach to it.

Mr Straw: My Lord, I am not sure where you are putting Tom Paine, but funnily enough I quoted Tom Paine in a lecture I gave in October where he was making the point that it is important that rights and obligations are reciprocal. He said: "A declaration of rights is, by reciprocity, a declaration of duties also. Where there is my right as a man is also the right of another and it becomes my duty to guarantee as well as to possess." I am as concerned as you are, and Mr Henry Porter is, about ensuring that people have access to their rights in the criminal procedure and not to have unnecessary, unjustifiable interference by the State. But where I depart from you is in what appears to be your belief that it is possible to run a society today - indeed, it has never been possible - based entirely on libertarian principles which I see as essentially selfish where people are simply claiming their rights and saying I have no obligations to anybody else. Yet the issue about your only obligation is to obey the law begs the question in any event about what is in the law. I can argue about the abolition of double jeopardy or fraud trials. The issue there is not about taking people's rights away explicitly, and bear in mind that juries are the exception, not the rule, across Europe and indeed in most countries in the world which are perfectly democratic and libertarian, so these two do not go together, although I happen to think that juries play an important role in our criminal law and in our culture, the issue there is when you are faced with a clear choice do you come down, say on double jeopardy, on the side of someone who is unquestionably guilty for whom there is DNA evidence that they are guilty of a rape or a murder because of a double jeopardy law, or do you adapt that to take account of changing circumstances and say actually the rights of the victim and of the public to ensure that somebody who is plainly guilty of the most egregious crime ought to be tried and locked up and should not be able to dodge round the law just because of a rule which was brought in in very different circumstances. On the issue of telephone records, I can talk about this, and I am as concerned as anybody who I phone, who I send a text to, boring though these things are, should not be accessible with any facility save for the real need of criminal investigation or counter-terrorism and so on. There is a balance here and I was going to give you this last example, my Lord, which is this. In the law children and parents have various rights of education. What is also in the law, and we have tightened this, is responsibilities on parents not only to make sure their children go to school, but all sorts of more explicit responsibilities. All parents do not realise this. There is text used in other countries that there is a case - I put it no higher because this is a developing process - for saying to parents yes, you have rights and so have your children but you have also got responsibilities and this is what it says and this is what through representatives and debate has been agreed by the British people.

Q426 Dr Harris: I wanted to ask you about the question of the British Bill of Rights. You call this a British Bill of Rights. Does that mean a Bill of Rights for British citizens?

Mr Straw: Dr Harris, a lot of Convention rights, for example, are there for anybody in the jurisdiction. I do not think anybody is suggesting a system where you had one set of rights in a criminal trial under habeas corpus if you were a British citizen or if you were not, that would be risible and completely contrary to the Convention, so let us be clear about that. The "British" adjective in my view is important because there is this implication in the air that these human rights which equal in some people's minds, not mine or yours, a terrorist's and criminal's charter, are a European imposition and by Europe it is meant "the other", that somehow we are not part of Europe. I think it is really important we break that down. One can do it in longhand by pointing out that we were the architects of the European Convention, and we were the draftsmen, but in shorthand by saying what we are doing here is having a British bill.

Q427 Dr Harris: It is spin in a good cause, not in a negative way.

Mr Straw: I do not accept that term because it is a pejorative term. It is explanation. I wish now we had called it the British Human Rights Act, but there was not that same sort of climate then. Given how the word "Europe" has become to mean something foreign, other, unpleasant, I think it is quite important to say if the British Parliament decides on something then ----

Q428 Earl of Onslow: Fog in Channel, continent isolated you mean?

Mr Straw: Yes.

Q429 Dr Harris: You could seek to reclaim the meaning of that rather than sidestep it. Maybe you could do both.

Mr Straw: I think one could do both is the answer.

Q430 Dr Harris: I notice in the draft legislative programme it talked about giving people in the UK a clear idea. Is that because of the distinction between Britain and the UK with respect to Northern Ireland?

Mr Straw: There is a drafting issue about what is Britain and what is the UK. There are some quite difficult issues about the geographical extent of specific rights in any new bill, not so much responsibilities but certainly new rights because of devolution and different jurisdictions. In fact, in Northern Ireland, which is in the United Kingdom, it is not Great Britain, they already have developed quite a lot of instruments rather further than we have. I do not wish this to be disruptive of the Good Friday Agreement so we have to work round those.

Q431 Dr Harris: You are saying that basic human rights might be a devolved issue?

Mr Straw: The United Kingdom is a single unitary country and it is the United Kingdom Government which is a signatory to the Convention and which represents all the parts of the UK which have devolved, but not federal, government. Our obligations under the Convention therefore apply everywhere. If there is a case taken here, the public authority against whom a case is taken here is, for example, the Scottish Executive or the Scottish Health Board, and that ends up in Strasbourg, the United Kingdom Government is the respondent. It is just a drafting problem and one which requires us to work in co-operation with the devolved assembly.

Q432 Dr Harris: You are not saying there will not be certain rights that are England and Wales specific or Britain specific and some that will not be extended to Northern Ireland? I know that ultimately it is as you have explained under the ECHR.

Mr Straw: Some of these areas - education and health are two - are overwhelmingly devolved, although not all parts - embryology, for example, is not, as you know and it is a GB-wide issue. Embryology is UK, abortion of course is GB, so there are these complications. The Human Rights Act was drafted and, although it received Royal Assent the same month as the Scotland Act, the two were running in parallel. I was present at the birth of both. What happened to the Scotland act and also the Wales act, but the Scotland act more explicitly was that the Scottish administration was made subject to the Convention in advance of the UK. It was a slightly odd arrangement but there we are. The thinking preceded devolution. We just have to ensure that what we say does not collide with the Devolution Settlement and, if there is a question of that, it has the consent of the devolved administrations. It is a tricky issue but it does not raise issues of principle.

Q433 Dr Harris: It is a process issue.

Mr Straw: Yes.

Q434 Dr Harris: What about the question of the proposed British Statement of Values? How does that relate to it? Secondly, the issue of whether there are certain rights like the right to vote that could be applied selectively to certain people within the jurisdiction and to citizens and whether the responsibilities part relates to those rights or not?

Mr Straw: I will ask Mr Wills to come in on the Statement of Values and I will come back on the right to vote.

Mr Wills: It feeds in because any statement of rights, historically and as a matter of principle, derives in the end from the values of the society to which these rights and responsibilities apply; it is inevitable. It is true of the Magna Carta, it is true of the 1689 [Bill of Rights] and it will be true of this. We see very much the process which is an innovative process, of formulating a Statement of Values will feed into this. We will have to see how that process evolves and we quite deliberately have let go of the process as a government and want it to be driven fundamentally from the British people themselves, so we will have to see how that evolves. Certainly we could envisage a situation where the Statement of Values, which we hope will emerge from that process, could form the preamble to such a Bill of Rights and Responsibilities and set out the values which inform those rights and responsibilities. Going back to an earlier point about why this is a British Bill of Rights, although a lot of the rights are universal in their application and in their origin, the way that they apply, the way that they are articulated inevitably are particular to this society. This is not aspirational in the sense that where we use the word "British"; it is descriptive. We see the Statement of Values as being part of that process.

Mr Straw: On the right to vote there are a number of rights which follow directly from being a citizen. It is slightly complicated because in this country the right to vote in general elections extends to citizens of Commonwealth countries, of the Irish Republic and to vote in local and European elections to resident EU citizens, so it is complicated.

Q435 Dr Harris: Other than that, is there any other area you think might apply just to British citizens?

Mr Straw: There are obvious ones which go with citizenship like a right to a passport and the right to consular assistance which are directly linked to being a citizen of this country. Lord Goldsmith in his review looked at some of these. On the right to vote, people do have a right to vote. I have had plenty of discussions on doorsteps, and I am sure you have too sometimes, about whether people have a duty to vote if they want to have a complaint. Some countries have compulsory voting. I do not think people would find that acceptable in this country. The idea that at a declaratory level with a right to vote and a right to take things up in a democracy and maybe a non-justiciable duty to vote is one we should debate.

Q436 Dr Harris: On this question of responsibilities - I am not going to go far because I think Lord Morris has some specific questions on this - the state has some responsibilities within the system, for example, to remedy and implement judgments of the Strasbourg Court in good time. The Connors case, the Hirst case, which is actually about citizens who the European Court of Human Rights thinks have a right to vote - some prisoners - and then some of these Northern Ireland cases - Jordan, McKerr, Finucane - they have been sitting around for a long time. In my view the Government has abrogated its responsibilities, its part of the deal, by not sorting these out. Would you accept without taking personal responsibility perhaps that there is a responsibility to do your side of the deal?

Mr Straw: I accept that in general terms, of course, that the State, Parliament has all sorts of responsibilities and, self-evidently, the Executive has responsibilities to meet its obligations in international instruments that we have signed. Our record in terms of compliance with Strasbourg judgments is pretty good and better than some Members of the Council of Europe. We are running a second consultation on prisoners' voting rights, which is a tricky issue.

Q437 Dr Harris: I think there has been a significant criticism about delay. My last question is about this issue where you used the term "selfish". You said in your speech last year on Magna Carta - this is the thing the press picked up on perhaps because you pointed them at it - that you feel that "some people seek to exercise their rights in a selfish way without regard to others." Is that fair? One can say that one is claiming one's rights but you also want to be polite and obey the law as was said and all those sorts of things, but can you claim rights in a selfish way? Does that mean you just write a strong letter via your lawyer to be selfish? You either claim your rights or you do not. They are my rights and I suppose it is selfish. I cannot understand how I can possibly claim my rights in a non-selfish way.

Mr Straw: It is a nice point you have made but I was thinking about the kind of situation which our constituents encounter where, for example, they will encounter bad behaviour by juveniles, sometimes parents who assert the right of their child to do essentially whatever the child wants to regardless of its impact on other people. Getting across the sense in a text that there are responsibilities as well will not overnight for a second change that behaviour but it will actually enable people to have a better argument with such people when they are asserting that they have legal rights, which of course is true. You also remind them that they have responsibilities as well. I am really keen on getting that out specifically. That is why on specifics we have changed the law so far as parents' responsibility in schools in respect of their children because for sure parents have rights to have facilities and teaching of their children, but parents have also got very clear responsibilities. Most parents meet those and more; some do not and expect others to do this for them.

Mr Wills: If you focus on the word "claim", I think what the Secretary of State is saying as well was that these rights are very precious and that there is a tendency among some people to assert them promiscuously and that devalues them. What is important is that when people lay claim to these things they are precious. They have been fought for, they are rightly entrenched in our society but they are precious and they should be asserted and claimed with a proper sense, as the Secretary of State is saying, of the responsibilities that go with that inevitably.

Q438 Dr Harris: Free speech only if it is responsible.

Mr Wills: That is not what I am saying. You know as well as I do the famous analogy of shouting fire in a crowded theatre.

Q439 Lord Bowness: Lord Chancellor, I hope I have not misinterpreted what you said earlier in your reply to Dr Harris' question but it did seem to me, and you might want to clarify this, that you were really saying a British Bill of Rights was more acceptable than the European Convention on Human Rights which was seen by members of the public as a somehow foreign concoction and therefore not something they wanted to subscribe to. Does this mean you are suggesting a Bill of Rights which will somehow include the Convention rights and that you would be doing it in a way for presentational purposes to the public? If that were the case, I would have thought that that was not really very tactful towards our partner states either in the European Union or in the Council of Europe. The European Convention really is a common thread which runs through their democracies and that they see as extraordinarily important. You may say that it is really off the point, but if we are going to be sitting here on this side of the Channel saying we have to have a British Bill of Rights which does not obviously refer to any of you people the other side of the water, that would seem to me to be extraordinarily unfortunate.

Mr Straw: Lord Bowness, I am sorry, I do not agree with you. It is possible to trivialise anything but this is a far from trivial exercise. My historic points are two: one is the European Convention is a profoundly important legal instrument which has benefited British citizens amongst many others, particularly in recent years, but secondly it has been parodied as a "terrorists" or "criminals" charter. I understand why because you cannot remove rights even from people who have done really horrible things. You can take away their liberty but you cannot then deny them the right to sue the prison authorities or to sue me, as they often do because they have these basic rights, that is what is going to happen. I am concerned that this has then run in in some areas of the popular imagination to an assertion that this is a European imposition. You and I know that it is not a European imposition. We all know the history of this which is that the UK led the way, although it was extremely nervous - both parties were - about incorporation, but these rights which were drafted, not least by David Maxwell-Fyfe, a distinguished Conservative jurist, were essentially a distillation of what he and the other British drafters thought were British rights. I think it is far from just being a presentational matter. I think it is really important that we get that across. You can do that by shorthand or you can do it by longhand and going through the explanation I have just offered or saying these are British rights and they were developed by the United Kingdom, they were endorsed by the British Parliament and they are British and, what is more, we have built on the Convention to ensure that they work better within the United Kingdom. That is no different from what other countries do. Yes, they subscribe to the European Convention but in their own constitutional texts they have clear statements about what it means to be a French citizen, a German citizen, an Italian citizen, a Spanish citizen and so on.

Q440 Baroness Stern: I have a supplementary question to Mr Wills. I am still pondering this notion that there are people around claiming their rights promiscuously. I am thinking about the work that we have done on this Committee on old people in care and adults with learning difficulties and children in custody and I am wondering have you got an example you could give us of someone you have met lately or read about who claims their rights "promiscuously"? I cannot imagine who this person is.

Mr Wills: Certainly none of the groups that you have mentioned would fall into the category that I was referring to, just so that we are absolutely clear about that and of course we are proud of this legislation that we brought in. We are proud of it, it has done a lot of good and it will continue to do good as it evolves; there is no question about that. What we are trying to say is that there is no question that it has been misunderstood and there are certain people who fuel the misunderstanding about this. Most of the rights are not unfettered. There are very few absolute rights. That is another way of articulating what I am trying to say. It is important that people understand that. That is why we want to articulate the responsibilities better than perhaps we have managed to do up until now. It is very important that any legislation in this area is owned by the British people as a whole otherwise you get the sorts of problems that we have been having - problems of misunderstanding - and the more that people are encouraged to believe that these rights are proportionate, they are accompanied for the most part by responsibilities, the greater the degree of ownership. The more the majority of the British people feel that these rights somehow privilege unfairly certain groups of people and they are encouraged to do so by people who claim, often usually without any justification whatsoever rights, that is the point. That is what I mean by promiscuous. You can claim these rights but it does not mean that the courts will uphold them. They are often based on a profound misunderstanding of what the Human Rights Act actually does, but we have to be very clear about that. I think that is the point we are trying to get across.

Mr Straw: Baroness, the examples you quoted are all very good examples of where law-abiding British citizens have been able to make use of the Human Rights Act - elderly people who have been forced into different care arrangements in different places have been able to make use of the Human Rights Act to see out their declining years together - there are all sorts of things which this Committee is aware of but which the public are less aware of. I had to see somebody not long ago who has a terrible criminal record but who spent a large part of the conversation with me explaining about how his rights had been broken. I dealt with it patiently and I thought about this as I was listening to this and reading all sorts of documents relating to this that it would have been helpful to this conversation and to build an understanding about his exaggerated sense of his rights if I was able to say: Yes, but the text you are quoting also includes in this same paragraph text about your responsibilities and if you are pondering your current situation - he was not in prison by the way - it is because you have only read the first bit, not the second bit. That is a very practical way in which this certainly would have helped me in this difficult conversation and plenty of other people in similar situations - probation officers talking to the offenders they have to deal with, prison officers, all sorts of people who, for understandable reasons, the offenders in such a situation are very assertive of their rights. Getting across to them with these rights comes responsibilities and continuing responsibilities, for example, to their victim and society whom they have offended and that they are not the victim is very important.

Q441 Earl of Onslow: Firstly, the American constitution has the first ten amendments - a Bill of Rights - would they not be enough for a British Bill of Rights? Those are the protection of the citizen. The second point is that on the continent you can be locked up on suspicion while they investigate for an extraordinarily long time, which would not be acceptable to English courts. I think it is reasonable to say that the common law tradition, the tradition of the King being subject to the law, a long historical and mature development of the English liberty approach is, I would suggest, superior to people who tear up their constitutions every 20 minutes, which has been known to happen on the continent so we should not be ashamed of being proud of things which do provide better liberties. I go back to what I was saying earlier which is the worry that all governments, and it is not only your government, of not understanding the rights of British subjects is to be stroppy, is to stand at market places and say "It is my right" and then get shouted down and it is wrong. This is the whole point of liberty and sometimes I do not think that the Government understands that deep gut thing of it is nothing to do with you and I can be stroppy if I want to.

Mr Straw: I understand that. I stand in market places as I did in Crewe last Saturday.

Q442 Earl of Onslow: Did they call you a toff?

Mr Straw: They could have done. They called me all sorts of things. I do it regularly in the town centre in Blackburn and have done for the last 25 years. I happen to think it is other people's right to call me whatever they want to, and indeed they do. It is an important part of the rough and tumble of British political discourse. It is not for the evidence session but I wish there were more of that. What you have just said about the fact that in many areas British rights and liberties are actually stronger than Europe is making my point in a way which is that the European Convention is a platform and I want to build on that. It is not about taking people's rights away, far from it, but when I listen to you - you may disagree with me because of the name on my plate - I do not feel a profound sense of disagreement. In terms of government, which I have worked in and observed over 35 years, any government has to be checked because the tendency of government is to use the power you have got. I can only say to you that, having worked in the previous Labour administration for three years in two departments, and having observed, albeit from the opposition benches, the administration between 1979 and 1997, and then actually being in this administration right at the sharp end of people's liberties as Home Secretary, Foreign Secretary and now this job, the Human Rights Act has shifted the balance from the State to the citizen. It has changed the behaviour of all public authorities, in my view for the better, in favour of the citizen. It is terrific. Let me say that it is a damn nuisance from time to time. I literally saw before my eyes when I was working for the Department of Health and Social Security and the Department of the Environment shortcuts over people's liberties taken. Those of us who were in practice at the Bar in the early Seventies will remember that as well. Apparently it was a high point of British liberty but we all remember that suspects were quite routinely dealt with entirely inappropriately inside the cells. If your client said to you they had been fitted up, verballed or punched in the stomach and they wanted you to advance this as a defence you would say "Yes, I will do all that", but if you knew that the judge will put the boot in on the summing-up, or find you guilty if it is a stipe and you will go down for longer and everybody turned a blind eye to that. It was at the high point of British liberty. The Human Rights Act, along with some other things, has made a very big difference to people's liberties and I celebrate that.

Q443 Earl of Onslow: The answer is I completely agree with the Human Rights Act. I want it to be better. I do not think the Human Rights Act goes far enough.

Mr Wills: This Government does fundamentally agree with you in a whole range of ways, not just on the Human Rights Act, but the Freedom of Information Act gives huge power to the individual to be stroppy, as you say, against the state and that is right and proper and we are proud of it all.

Q444 Lord Dubs: When we were in South Africa we met Judge Albie Sachs who said that in his view the Bill of Rights should be about the sort of society that you want to have, the values you want as a society. Is that your approach or do you think our Bill of Rights and Responsibilities should be merely declaratory of rights and responsibilities which already exist?

Mr Straw: I have tried to set out our store on that in my introductory remarks. There is a jurist called Philip Alston who has describes Bills of Rights across the world as "a combination of law, symbolism and aspiration". One should not dismiss for a second the symbolic and aspirational role that Bills of Right and Responsibilities can play. They can take on an iconic importance which goes beyond the explicit legal protections afforded. The examples of South Africa and the United States are just two where people got a sense of their rights and, certainly in South Africa, their concomitant responsibilities. That is in their constitution which people then have as explicitly here. As I indicated in my opening remarks, the approach we are most actively considering is of the three on the spectrum between just declaratory of rights, deliberative and interpretive ones, and wholly justiciable rights is to go for the second.

Q445 Lord Dubs: A moment or two ago we were talking about British rights. Can you give some examples of what you would consider to be specifically British rights which might be candidates for inclusion in our Bill of Rights? You have talked about the European situation.

Mr Straw: In terms of education, health, administrative justice, equality, in these areas I am not for a second going to say that these would have no parallel anywhere else in the world - of course they would because most democracies have developed details of these - but we want to ensure that the language was suitable for our society and the aspirations of our people. For example, on healthcare in many societies people do not have a right to healthcare.

Q446 Lord Morris of Handsworth: What about the British rights to have British jobs for British people?

Mr Straw: That begs quite a few questions. My view and the view also taken by parliament is that if people are lawfully here and they have a permit to work then they are lawfully here and have a permit to work. Quite a lot of us around this table, either in our own person or in our forebears, were not British citizens once and this applies to me. My great-grandfather was not a British citizen but came from Germany. There are plenty of other examples around the table so you have to be rather careful. The idea of British jobs for British people, however, not in this context but in ensuring there were sufficient opportunities for the people who are settled here and that runs into wider issues about how you, for example, take people off invalidity benefit, what you do about those who are on job seekers' allowance, how you raise skills for people.

Mr Wills: You could, for example, argue, and some people do, that British people should have the right to the skills to enable them to fill jobs in this country. That is the key thing. We are going to lose millions of unskilled jobs and part of the debate that we need to have is should people have a right to have the opportunities to fulfil those jobs - the right to get the sort of skills that everybody is going to need to fill the jobs that are going to be available in this country and everywhere else in the world. It is a different way of looking at it. It is not a restrictive formulation; in some ways it is an enabling formulation in talking about the right to skills.

Q447 Lord Morris of Handsworth: This is taking us away from the principles of universality of rights and cocooning in the overall context of so-called "Britishness".

Mr Straw: So far as this development of the Bill of Rights and Responsibilities is concerned, as I answered to Dr Harris, if there were to be in this, and it is not currently anticipated that there would be in this Bill, but there might be as a result of the consultation rights which were confined to British citizens, they would be the ones which are obviously confined to British citizens like the right to a passport and the right to consular protection, and even the right to vote. It may be down the track Parliament decides that the right to vote would be entirely related to being a British citizen, which is the practice of almost all the other countries, including Commonwealth countries and the Irish Republic, but for the time being we have had a more complicated definition.

Q448 Lord Dubs: You mentioned equality a moment ago. Is there scope for including equality, administrative justice and rights for particularly vulnerable groups, such as children, all as part of this?

Mr Straw: There is certainly scope, Lord Dubs. We have not made final decisions about this. It is an absolutely fascinating exercise just getting to where we have got to in government, intellectually as well as politically. The current buzz word is it is challenging, but it is very challenging indeed. Those are all possibilities, yes.

Q449 Chairman: Can I come on to the question of social and economic rights. Albie Sachs said to us when we met him that a country which did not include social and economic rights in some form in its Bill of Rights is a country which has "given up on aspiration". I had the impression from your opening statement that social and economic rights are not excluded from the process. The real issue is where it fits in the continuum between declaratory and fully justiciable. Is that right?

Mr Straw: Yes. He also said, "There is nothing wrong with aspiration. A country without aspiration is a country not really thinking about its future." I agree with that which is why I do not rule out the idea of some rights within this Bill being declaratory. I would just say to the Committee that the only worry I have there is the worry of being parodied. I get the sense that this Committee understands the importance of aspiration and the role that it can play within an otherwise legal instrument. That is the point which is made by the jurist, Philip Alston, who I quoted a moment ago. What I am also conscious about is space for there to be a serious debate about this. I do not want to end up in a position where people say it is not worth the paper it is printed on because it says this but you cannot go to court for it. That is the difficulty here. If you think about the other countries which have explicit constitutions, almost all of them right across Europe and much of the rest of the world had to argue what became their constitutions in the wake of civil war, occupation, colonisation and they went through an acute period of disruption. If you are in South Africa, or even the United States, India or France, you are going to sit down and do that in a convention in a very intense way and say what are the rights we think people should have? We will worry about how we enforce them later on but let's have a statement that we can all agree with or disagree with. Our situation is very different and I am pleased it is. The last civil war we had was in the 17^th century and we are still living with the consequences. Albie's forebears were absolutely right, I was on the side of Parliament and everything went with the 1689 Bill of Rights, just so we know.

Q450 Earl of Onslow: We were on the side of the House as well.

Mr Straw: I know you were, sir. I had a submission the other night which I started reading and it started talking about Article 9 and I thought this has nothing to do with Article 9 of the European Convention, what is this about? It was a whole submission about a very contemporary issue which raised the question of Article 9 of the Bill of Rights. That is a slight digression, but I say the declarations can be important. People are going to say where is the beef in this Bill, so I am concerned to ensure that there is beef. In some areas, explicitly economic rights, we say look, these are the rights to have at this particular level public spending on this service you have to leave that to the Executive and Parliament.

Q451 Chairman: It is a question of finding the right balance. One of the issues raised in the Grootboom case (a housing case in South Africa) is an important point that it is all very well having all the political rights, a right to vote and all that sort of thing, but if you do not have the basic fundamentals of life, which is what socio-economic rights provide - a roof over your head, food to eat - those rights are pretty meaningless because you are never going to be in a position to exercise them. That is why I think that those socio-economic rights become very important. If you look at the formulation of the South African constitution, they seem to have got it pretty well workable in a way that the judges do not really get involved in the decisions about resource allocation, jumping the queue and that sort of thing, but they do have that basic fundamental issue. If you contrast the housing cases in South Africa, basically the Grootboom case was saying you do not have to live in a hole in the ground but you are not entitled to a flashy house; you are entitled to basic living standards of shelter. If you look at the two health cases, one health case was somebody who tried to jump the queue and was told no, you cannot; the other is where the resources were available to do with provision of antiretrovirals to pregnant women where it had been a policy decision by the South African Government not to provide them though resources were available and they were told that they had to. There you had quite an interesting way that the constitutional court was able to find the right balance.

Mr Straw: In any democracy there is going to be a continuing tension between the rights of individuals and minorities and the rights of the majority and you cannot have a democracy unless you can have both a means of fulfilling the majority expression but in a way which respects the rights of minorities and individuals, however unpopular; indeed, it cannot be a democracy. I have often said about parliamentary democracy that it is not so much about the rights of the majority - it is about the rights of the minority. The question is how do you resolve those inevitable tensions? What we have done osmotically in a typically British way over the years until the Human Rights Act was to say that there are these basic rights to do with habeas corpus and all sorts of other things, jury trial, subject to odd exceptions, where there is consensus between the parties but also it is built into the common law that, unless Parliament is absolutely explicit they are going to take away these rights, the judiciary will lean over backwards to assert them. We do not have a basic law and an entrenched constitution and for all sorts of quite separate reasons I am not in favour of that. Given that we do not, ultimately Parliament has to be supreme and sovereign and it does. That is also the sentiment of the majority of the senior judiciary. That is my starting point, Mr Chairman. On your housing cases, South Africa is self-evidently a poorer country and there are much greater extremes between poverty and riches. We have all sorts of rights which are both built into the legislation by the welfare state and are explicitly enforceable. There is then a question do you try and wrap those up to interpretive principles? Can I make another point on one area of jurisdiction. In India the High Court there, as many will know, out of complete frustration by the public about the unbelievable pollution which I have witnessed in Delhi, and the failure of the governments controlling the environment in Delhi to enforce environmental articles in the Indian constitution, they finally said they had had enough and banned two-stroke engines. The improvement which has followed has been dramatic in air quality in Delhi and there has been a decline in deaths. That was judicial activism but without any question with the support of the populous. I understand why it happened in the Indian system - I am not criticising the Indian courts - but in my view in a British system that issue stands to be resolved by British Parliament.

Q452 Chairman: I want to come back to the question of environmental rights, but before we do can we stick to socio-economic rights. What you are basically saying is what you wanted to do was to pull together disparate bits from all over different pieces of legislation into one place, which may or may not be justiciable. Is it not possible to have some overarching basic principles? For example, when we looked at the position of asylum seekers - you probably would not agree with our conclusion - we came to the conclusion there was a policy of destitution towards failed asylum seekers, people living on the streets with no money, no shelter, no nothing, below the minimum standards that any civilised society should see anybody within its boundaries living in. Would you say, for example, that there ought to be a justiciable right somewhere along that continuum not to be destitute which can be refined to the very basic needs of food and shelter?

Mr Straw: I would rather not get into a debate about how we treat asylum seekers.

Q453 Chairman: I used that as an example.

Mr Straw: I understand that. I am happy to but I think we are careful with asylum seekers.

Q454 Chairman: The basic point I am putting to you is should there not be a basic fundamental right not to be destitute?

Mr Straw: There are going to be exceptions. I was having this conversation with a woman who came to see me last Friday who is a wholly failed asylum seeker from a country which I know to my certain knowledge is perfectly safe for her to go back and she wanted to stay and was complaining that she did not have any money and I explained to her that there are limits to the British taxpayers' patience. I understood her anxiety but I promised her there was zero reason for her not to go back and that therefore she needed to go back and that is my view. I think we just lose the public entirely in these areas if we are not firm at that point. It is very different in other areas. There is a case of whether we can encapsulate basic principles of the welfare state in interpretive principles, certainly declarations for sure. This is a new area in terms of developing law, not discussion of course. When Michael and I produce our Green Paper I am certainly not going to say we have got the answer - this is for debate and discussion - and your Committee will have a very important role to play in saying why can you not do this, why can you not do that, or you have got that wrong. It really has to be a collaborative process.

Q455 Chairman: How will this fit together with the constitution for the NHS?

Mr Straw: How it would fit together is the constitution for the NHS is a more detailed, by definition, document than the single article. They literally have to fit together in terms of statements but there are plenty of areas where you can overlap anyway. In some of these areas we have highly developed specific rights in the economic and social field. It is about encapsulating the generic principles and celebrating them, being aspirational in Albie Sachs' phrase, and query whether you also make them interpretive and deliberative.

Q456 Chairman: If you use the South African formulation, which seems to have worked, and I think the problem was also mentioned in South Africa if a country with such a disparate range of wealth between the very poor people in the townships and the wealthier people, if they can achieve this balance in their constitution why we, as a comparatively wealthy country, cannot and their formulation was the state should take reasonable legislative and other measures within its available resources to achieve the progressive realisation of the rights. I think that comes ultimately from a UN document. Why can we not use that formula?

Mr Straw: We are looking at all of these. I have a feeling that they also go on at some length about responsibilities as well.

Q457 Chairman: We asked them about what the responsibilities meant and nobody knew. Nobody could answer the question. We asked judges, politicians, NGO's and nobody knew what "responsibilities" meant in the South African constitution.

Mr Straw: There are various Australian instruments - the Australian Capital Territories Human Rights Act, the State of Victoria's Charter of Rights and Responsibilities, the preamble to the ICCPR: 'realising that individuals having duties to other individuals and to the community into which he or she belongs is under the responsibility of the individual to strive for promotion and observance of the rights recognised in the present covenant' [italicised / citation] and Article 20 of the UDHR and so on. There are plenty of examples one can come up with.

Q458 Chairman: There are examples of responsibilities but that is not what I am asking you about. I am asking you about the specific question of the degree of justiciability on that scale which maybe they want to achieve.

Mr Straw: The discrete issue about the level of justiciability has to be made country by country. We have moved over the last 40 years to a much higher level of justiciability for all sorts of what was seen previously as administrative action. When I studied law at university in the Sixties and practised at the Bar in the early Seventies we did some work on public law and judicial review. Famous authorities like Wednesbury were still there but judicial activism was developing. It has developed hugely since then. It was fast-moving before the Human Rights Act and will move. At the same time my own sense is that because we do not have the huge disparities of wealth, nor the huge disparities historically in people's rights that they do in South Africa, and we have very long-functioning institutions, that maintaining the sovereignty of Parliament at the apex of this system is absolutely fundamental. The senior judiciary recognise that. Lord Bingham, in a very important speech he gave, quoted a senior Australian judge as saying that if judicial activism goes too far you undermine the rule of law and I believe that. The only way you can maintain public confidence in what government is doing is by giving the public the regular choice to change the Government and to change everything, if they want to, with that.

Q459 Chairman: I would not disagree with that. That was the view in the Human Rights Act formulation with the declaration of incompatibility and so forth and I think it is a very useful model that perhaps we will talk about here. The last point from me is on environmental rights - the third generation rights as they are sometimes called. Do I take it from what you were saying that you are not supportive of rights to clean air, clean water, that sort of thing, as part of this constitution?

Mr Straw: Of course I am supportive of the right to clean air and not to be poisoned.

Q460 Chairman: Can you enforce it?

Mr Straw: They are indeed enforced. I had the right to clean air by people living around a bone works very actively enforced because they were being poisoned by the pollution from this bone works in the middle of Blackburn. It is how you enforce it that is the question. Environmental rights are slightly different in terms of conception. I am not ruling these things out. They are not currently under active consideration but you may well come up with a better answer than we put forward.

Q461 John Austin: I do not want to go into the whole area on the policy of failed asylum seekers but if you have whether it is the right not to be destitute or the right of access to health treatment, if that is linked in some way to a qualified process or a responsibility, then you have denied the absolute right.

Mr Straw: Some of these rights are in any event. You cannot just claim rights for schooling because you land up in the country. We lean over backwards in respect of children, but in rights to healthcare the British taxpayer rather objects to health tourism which arises because we do not have an insurance-based system in this country and we have taken active steps to deal with it. It does not mean that healthcare is confined only to British citizens. Most of my constituents earn a lot less money than I do. I do not see why they should have to pay for healthcare which should be properly the responsibility of the individual or their own country.

Q462 John Austin: We are not referring to elective healthcare; we are talking about people being destitute or starving.

Mr Straw: No asylum seeker or anybody else is denied emergency care in this country. To my certain knowledge, and no doubt to yours, the range of healthcare that asylum seekers need is no different from anybody else's. That runs into the separate issue of ethical responsibilities of the medical profession because they would never leave somebody destitute just because they did not have a passport or something.

Q463 Lord Bowness: I do not seek to disagree with what you have said, but you said in answer to the Chairman's question about destitute people well of course there have to be some exceptions and you referred to the lady who asked you for some money and you have talked about the maintenance of the sovereignty of Parliament with which personally I would agree. I am trying to see how all this works when you produced your Bill of Rights. If it is going to have any resonance with people it cannot be qualified at every turn. In fact, if there have got to be exceptions, and I suggest you are probably right, and if you are going to maintain the sovereignty of Parliament, are you not just making some sort of broad assumptions of the kind of things that would be in a Bill of Rights? Are you not every time you have a Bill that deals with immigration, asylum, the police, the armed forces, you are going to have to have something in the act which exempts certain bits and pieces of it from what will presumably be broad statements in the Bill of Rights?

Mr Straw: I do not think so. I draw on the parallel of the Human Rights Act. A lot of these issues came up when we were preparing the Human Rights Act. There was this question of bills coming through the system which may or may not be consistent with Convention rights. I had a lot to do with the Bill but the basic architecture of the Bill, particularly what became Section 4, to achieve this very elegant and important balance between the courts and the sovereignty and Parliament was not mine. It was the First Parliamentary Counsel and the officials but I do claim credit for what became Section 19. Under Section 19 the minister responsible for a bill does not have to certify that the bill is consistent with the Human Rights Act but he has to say whether or not it is consistent and it means there is a proper process of examination. I once signed a certificate to say it was not. I cannot remember what it was about now but it was not consistent, or at least I did not think it was. We are not under a kind of international obligation to the bill to the extent that the British Bill of Rights and Responsibilities adds to the Convention or is in different areas, but there may be a case for saying we extend Section 19. When ministers bring forward legislation it would be handy if Parliament could be informed whether in the judgment of the Minister it is consistent with what is there or not. It is then for Parliament to decide whether to legislate but useful to know on one side or another where the minister sits. Michael and I have been doing this exercise now for a long time and we are conscious of the risk of parody here just to the degree that the Human Rights Act can be turned, and was by some people who asked what on earth are we doing this for. We will not be able to finally win the argument until it has happened. We are very anxious indeed that there is substance here but not substance in a way that breaks open key tenets of our British constitution, like the sovereignty of Parliament or the right of the executive to make proposals to Parliament about resource allocation. I think we can, as well as not ignoring the importance of aspiration within a legal instrument, we can do something really rather important in terms of building up British people's sense of additional rights to which they are entitled and the responsibilities that go with them.

Mr Wills: I think what lies behind your question, Lord Bowness, is a perception that somehow we are going to bring in new rights and that will create new challenges and therefore to meet those new challenges we somehow have to neuter the original intention of bringing in the new rights, if I understood you correctly. As we embark on this process there will be all sorts of people who argue from particular perspectives that we do need new rights and it is not necessarily our view. Where we are on much firmer common ground is that when people look at this whole terrain I think most people would agree that we certainly need a new awareness and consciousness of rights and responsibilities and a new understanding of what they will be. I think there is a way of looking at this which would not necessarily bring into play the sorts of concerns that you were raising. The second point I want to raise is that a virtue of this process on which we embark could be to bring greater clarity to the respective roles of the various arms of the constitution. As the Secretary of State has said, we believe that parliamentary sovereignty should be just that. That is the ultimate arbiter of our constitutional arrangements and nothing we propose to do will threaten that if we have anything at all to do with it. That is fundamental. Nevertheless, the courts do take a view on these things. There has been an increase in judicial activism and it could be a virtue of this process that Parliament sets down clearly where it thinks the boundaries are in certain areas in the process of good administration, for example. There are lots of virtues to this process other than in the sort of area that you have been discussing where many people would say there was considerable virtue but others would have considerable concerns as well.

Q464 Earl of Onslow: I think we really ought to always remember that there is no way that parliamentary sovereignty can ever be enacted against because one parliament says it is rubbish, all that will happen is the Sovereign calls a new parliament which says no it is not rubbish and that goes back to Anglo Saxon times and thank goodness for that. That seems to me a core issue. To go to the destitution point, surely you could get round this one by saying all people should be treated equally? In other words, if you have a social parliamentary tax system which allows people to be destitute, then okay destitution is all right, but because we do not have it and you say people should not be destitute, it therefore comes into the estopping of a government allowing somebody to be destitute unless an act is passed specifically to do it. The more you put in social and economic rights - this is where I know that the Chairman and I do not always agree on this - that is entering straight into policy. It is a policy to have a national health service. One day it may be that we will provide health in a different way and that is for the electorate to decide. You cannot say we will have a national health service because that will be taking away from the sovereignty of Parliament. That is why I feel very cagey about social and economic rights, but I feel very strongly about stopping old bossy boots in the Cabinet. Every Cabinet Minister gets this habit of being a bossy boots; it is in their bones.

Mr Wills: There are exceptions.

Mr Straw: You are right but we are not going down this road of having directly enforceable generic rights of equal treatment, for example. That would be a piece of primary legislation of the British Parliament and there is absolutely nothing to stop the British Parliament later from saying - it does this all the time with more prosaic stuff - later we assert that this right which is in the British Bill of Rights and Responsibilities which, after all, is just an ordinary standard act of Parliament, can be modified for these purposes in this way. The reassurance I would give you is that because these rights we are talking about, economic and social rights, are not covered by the Convention or its jurisprudence, the British Parliament has, in practice, as long as we remain in the Convention, freer rein over these things. It can change them if it wants and I, like you, think that a fundamental reason why our democracy for all its warts works and also why people have not had to resort to violent revolution is because this Parliament is sovereign and people can change the government. I say this to people in Blackburn when they may be complaining about the European Convention, if you have a party that stands on a platform and says we are going to come out of the Convention, we are going to renounce our membership of the Council of Europe and we will take our chances about what that means for membership of the European Union, if that is what they have said they are going to do, that is their right.

Q465 Baroness Stern: In your Memorandum which you sent us you said that the purpose of a Bill of Rights and Responsibilities is "to ensure that the system works better to protect the individual against the powerful", which sounds really good.

Mr Straw: It is really good, Baroness.

Q466 Baroness Stern: Who did you have in mind when you talked about "the powerful"?

Mr Straw: People running public authorities who have power in that area.

Q467 Baroness Stern: That is a really helpful answer. It is the answer I wanted to take me into where I am going to try and take you next. Do you include the concentrations of private power that now exist in the globalised world?

Mr Straw: It is a good question.

Q468 Baroness Stern: I did not write it. It is a very good question.

Mr Straw: You obviously have good clerks. There are certain rights in the Human Rights Act which relate to the exercise of these rights by public authorities. This Committee, and indeed the Government, would wish to see that where they are exercised by individuals or private corporations they are nonetheless subject to the Human Rights Act. That runs into the whole area of YL. It is not the purpose of this Act to impose particular rights and responsibilities to deliver directly on private individuals or corporations because it has implications. However over-weaning a large private multinational X may be, they do not have the power of the State, especially not big states like the United Kingdom. They are also of course the subject of the domestic law in which they find themselves and also all sorts of international instruments.

Q469 Baroness Stern: In this Memorandum you talk about citizens having "mutual obligations" and you refer to the Bill of Rights and Responsibilities and you have already said this today "giving people a clearer idea of what we can expect, not only from the State, but from each other." You liken this to the notion of "horizontality" which is recognised in the South African constitution. Would you think that a British Bill of Rights and Responsibilities should follow the South African example by imposing a duty on courts to develop existing private law rights, where possible, to give remedies for breaches of rights committed by private power?

Mr Wills: I certainly think we are going to learn from the South African constitution in this process without any doubt. We need to focus on where these rights are located and they are primarily for the individual against the State. There are all sorts of other problems about the concentrations of power in our society but we do have other remedies for it. The state is not powerless and Parliament is not powerless against these concentrations of power and we act all the time in all kinds of ways to do just things. We protect agency workers, for example, against some of the great forces of globalisation which can be very destabilising, just to take one current contemporary example, but this primarily has to focus on the protection of the individual against the State. That is fundamental. Where you may be going with this is about definitions of how we should define the scope of the State because as public services are contracted out there is a question about the definition of public authority. I do not want to pre-empt you but I do not know if that is where you were going?

Q470 Baroness Stern: I was about to move in that direction to say that there is this issue of the YL case and public services provided by private providers. Tomorrow we shall make a little progress on that when the amendment is put forward on the care homes in the Health and Social Care Bill, but that is only about care homes. It leaves the larger issue untouched. I understand that the larger issue is going to be part of the consultation you are having on the British Bill of Rights. How do you justify putting that in with this broader consultation about a new Bill of Rights when I understand that it was always the intention that the Human Rights Act should cover public services provided by a private provider?

Mr Wills: That to my understanding was the intention of Parliament and the Government at the time. You will recall when I last appeared in front of this Committee in an informal circumstance that I did undertake, and as you know at that meeting there was a great deal of anxiety about the effect of the YL case. We have always made it clear that we share that concern and we wanted to find a way to put this right. There was a very widespread sentiment at that meeting that, rather than get it perfect, rather than try and deal with all the complexities of what it means to be a public authority, which I will come back to in a moment, that we should get on with it, we should not delay and I recall that I did give an undertaking saying that if we could find a workable solution that could be brought forward within a proper legislative framework quickly we would do so and that is precisely what we have done. We have moved with great speed. It was not very long ago that I appeared in front of you and we have an amendment with a great deal of trouble and extraordinarily good work by the Ministry of Justice and also the Department of Health. They have done a huge amount of work trying to resolve very problematic issues and have come up with something that we believe is workable which, as you rightly say, is very narrow in scope, it deals with a very specific problem and we think it will deal with it and we brought it forward with great despatch - that is what we said we would do and we have done it. We also accept that there is a wider issue and what the YL case has thrown up is a wider issue to do with the definition of "public authority". It is not easy to resolve. Everyone wants to resolve it. There is no issue between us on where we want to end up. We want to end up at a proper definition which covers contracted-out public services in a way that Parliament originally intended but we must be certain we are not going to end up with unintended and perverse consequences. There are real issues here. We have to take the whole of government with us. The Secretary of State said right at the beginning that we are moving forward on the basis of consensus, rightly and properly with something that is important. This is very important that we do so and we will try and do it with all political parties as well. That is the basis on which we are moving forward across the piste here. Any constitutional change as far as possible ought to be consensual in basis. There are issues around this definition. We want to take it forward in the context of this. We are going to consult on this and what it means and I am sure we will be back in front of you, God willing, to discuss this further. Please do not have any illusion that we do not take this anything other than extremely seriously. We did move with great speed on the particular circumstances of YL and we will continue to move as quickly as we possibly can on the broader issue as well.

Q471 Chairman: When you were Home Secretary in 2000 you gave a list of the sort of things that you thought were public authorities like housing associations, nursing homes we have been talking about, charities like the NSPCC when they are doing enforcement activity. Our concern is, going back to your original answer to me, that we are not going to row back from the Human Rights Act; that this sort of discussion gets us nervous that what is actually being done is rowing back from the original intention of the Human Rights Act that all these bodies would be covered. There is a formulation that I have put in my Private Member's Bill, which so far does not seem to be getting very far, as to how this can be resolved.

Mr Straw: Absolutely not. We made a deliberate decision in the Human Rights Act not to do what we did in the Freedom of Information Act, where there is simply a designated list of what is a public authority. You are either in the list or you are not, full stop. It can be amended but that is how it works. For the purpose of this Act it was left at large for I think very sensible reasons that if a body was exercising duties under this Act it was a public authority for these purposes. You have a better memory or better files than I, Mr Chairman, but you are dead right that I said those things and I believed them and I still do. It is a question in the light of the YL case how you go from where you are to where you want to be. In a quite different context, if you have an adverse decision from the most superior court in the land, it is sometimes quite complicated to put the clock back. I just give you the example of Pleural Plaques where there had been settled law for 15 years that Pleural Plaques did itself give rise to cause of action and compensation. It goes to the Law Lords and they decided last October that it does not. You cannot suddenly snap your fingers and say we are going to put the clock back from 17 October last year to the law as people thought it was on 16 October. It is strange but it is true. It is much more complicated than that.

Q472 Chairman: Pleural Plaques is quite complicated as I remember from my previous life. The formulation that we have come up with in my Bill is to look at factors that go to something being a public authority or not, but in the interim these issues are coming up all the time with legislation going through Parliament, for example, would the Government support the amendment that we are suggesting to the Housing Bill to make housing associations public authorities for the purposes of the Human Rights Act in the same way that we do with care homes in the Health and Social Care Bill?

Mr Straw: These are questions which are under active consideration at this time. One of the reasons why the chemistry in these decisions changes if you get an adverse judgment is, let's say that everybody had assumed that housing associations were indeed subject to the act and that had been endorsed by the court because we were quite deliberate when we passed this that it would be a matter of decision by the courts on that. If that had happened then housing associations would just have to get on with it. When it appears that the opposite has happened, then government departments get twitchy, they say there will be resource costs and people start from a different status quo. That is the difficulty.

Q473 Earl of Onslow: My concern is I was approached by the minister and it is my amendment now to the Housing Bill - on my way here I was stopped in the passageway and asked would I go and see the Minister after the recess to discuss this very point. She is going to be armed with 853 civil servants and I will argue my case as to why it should go in, so we will see what happens.

Mr Straw: Looking at Section 6(3): "A public authority or court of tribunal and (b) any person certain of whose functions are functions of a public nature."

Q474 Chairman: It is not easy to follow.

Mr Straw: No, it begged a question; that is the problem. It does not exclude institutions not set up as public bodies with a capital "P".

Q475 Chairman: How can there be resource implications? If you think something applies and have worked on the basis that it does apply and then you say it does not apply there are no resource implications because you are working on the basis ---

Mr Straw: That is a very good question but I promise you that at the moment there cease to be resource implications but when you try and change it people say there are and to a degree there are; that is the problem.

Mr Wills: It is not resource implications alone. There are other desirable policy objectives which colleagues in other government departments are concerned about. When this happens, as the Secretary of State says, when we get these decisions clearly people look at it all again. One thing we have got to do is to produce some certainty into this area because what we know from the YL case is that very vulnerable people have been rendered very anxious by the result of this particular court judgment and what we must do is be certain that we are going to produce something that will endure and provide certainty.

Q476 Chairman: We certainly want to see a comprehensive solution to it all, but more importantly in the interim having all these things going on all the time where you need to pick them off as you go along otherwise they may be left there.

Mr Straw: I understand that. There are a lot of people around who would prefer that this set of institutions was not subject to the Human Rights Act. When the courts say they are not, they say very good.

Q477 Earl of Onslow: When you said that colleagues come up with these rabbits out of a hat which have suddenly grown since the YL case, could you tell us what some of these rabbits are and what shape they are? How long are their ears and what colour they are and so forth?

Mr Wills: I do not think they are rabbits as such out of a hat.

Q478 Earl of Onslow: They did not exist when they thought the law was what it was before, did they, so suddenly they have grown?

Mr Wills: They may well have existed. They perhaps were not quite as present in the consciousness of some of our colleagues.

Q479 Earl of Onslow: What are they? Can you give us an example?

Mr Wills: If you will take my word that they exist and that they are real animals, we are trying to resolve it as quickly as possible. I would be perfectly happy to come and share some of the problems with you.

Q480 Earl of Onslow: Why can we not know what these rabbits are?

Mr Wills: Because at the moment some of these discussions are at a fairly delicate stage and I would rather get them resolved rather than discuss them in this forum today.

Q481 Lord Morris of Handsworth: I would like to return to the issue of duties and responsibilities which Dr Harris was exploring with you. In particular, I would like some clarification on a point made by Mr Wills who gave an example of irresponsible behaviour like shouting fire in a theatre. It might be socially irresponsible but the fact is it is an offence under the Public Order Act and it is against the law and unlawful. That is not irresponsible behaviour in the context that we are having the conversation about duties and responsibilities. The key question for me is will the exercise of responsible behaviour go further, as you see it, than just obeying the law?

Mr Straw: That was giving a very good answer to the implication of Dr Evan Harris which was that there were no limits to the freedom of speech which in my view is incorrect. It is also not consistent with the Convention which does qualify the right of freedom of speech quite explicitly. On the issue of responsibilities, ultimately everything could be reduced to what are the duties on people to what is in the law. If you are saying what duties are going to be enforceable, by definition anyone's wish can be enforced which impose an obligation on individuals which are the subject of enforcement either by the criminal or civil law. That is a tautologous statement of obvious truth. There is a wider issue here which is how do you better get people to live as neighbours in the biblical sense to understand that they do have responsibilities to people they are living alongside and that of course the law is the longstop as a way of arbitrating these disputes, but to enable people to be better neighbours. Upbringing and all sorts of things play a fundamental part in this and also the conditions in which people are living. As I know from my own experience, if you are living in a decent home of your own it is actually easier to be nice to your neighbours than if you are living in a rather grotty council maisonette because people are living on top of each other. I would like to see this Bill of Rights and Responsibilities developing a better understanding by the British people about their rights and responsibilities and the discussion that we have had here that these are theirs and they are British - they may be other countries as well almost certainly - but they are something which they can own. They are not foreign, they have not been imposed by a political elite - they own them and they are fundamental to their lives - and they can live their life better if everybody has a better sense of responsibility, and thirdly that they have all sorts of rights as well which we encapsulate in some cases just in declaratory form, in other cases in semi-enforceable form being interpretive.

Q482 Lord Morris of Handsworth: Will the test of being able to exercise your rights be somewhat contingent on the performance of your duty?

Mr Straw: It depends on the specific right. I said in my introductory remarks that rights and duties are not symmetrical. You have for these purposes rights against the State.

Q483 Lord Morris of Handsworth: So we take them separately.

Mr Straw: You have responsibilities to your neighbour, to your fellow citizens. You also have responsibilities to the community which in a democracy sits above the State but it is a means by which the State gains legitimacy. As I know as a minister, it is perfectly possible if you are a minister and you have got power to exercise it in a way that does not have the proper consent of the community. These relationships are complicated.

Mr Wills: I absolutely understand the question and it goes to the heart of what this discussion will be about in many ways. A lot of the responsibilities that people would normally think about are already enshrined in law. You have to pay tax, for example. What we are looking at, if I can put it another way, is trying to find a way of expressing the underlying picture. I think the Chairman started by talking about trying to find generic principles to underline right at the beginning of this session. If you take the same model for responsibilities that underpinning all this is a notion of our mutual responsibility, our mutual obligations to each other and articulating that is profoundly important. It is not a meaningless exercise at all in our view.

Q484 Lord Morris of Handsworth: I will put it another way as simply as I can. Do you envisage that there will be some rights in the Bill of Rights that people can lose or be disqualified from if they fail to perform their duties and responsibilities?

Mr Straw: The most obvious one which happens already is their right to liberty and you have responsibilities obviously to behave.

Q485 Earl of Onslow: At the moment you are proposing to take it away in 42 days.

Mr Straw: We are very happy to have that discussion too, my Lord.

Q486 Lord Morris of Handsworth: I need an answer to my question. If you go to the town hall to complain about your local council not delivering your rights, will there be a checklist to see whether you have fulfilled all your duties?

Mr Straw: Going back to my education example, children have rights and parents are the means by which those rights are exercised, but the parents also have responsibilities. In practice now, but in any kind of encapsulation of rights to education, rights for children, these two will need to be balanced. I am not anticipating that such a statement of rights would be directly justiciable but it would be interpretive and when it came to remedies in respect of explicit rights I would hope the courts would take into account how far parents had exercised and showed responsibility that these things are not a one-way street.

Q487 Chairman: What you are suggesting is probably along the lines of the Criminal Injuries Compensation Scheme where if you make a claim from a crime, if you yourself have perpetrated crimes your compensation will be docked or refused.

Mr Straw: That is a very good example which is built into the law. Neither Michael nor I are suggesting for a second that there is no sense of responsibility already built into the existing law - of course there is in all sorts of ways - but what we are saying however is we think precisely because in all sorts of ways responsibilities are implicit and sometimes explicit in individual texts of individual statutes or authorities, then we ought to bring this out and it is safe to do so as a framework for how people should behave towards each other.

Mr Wills: Rights are not contingent on discharge of responsibilities. In answer to your checklist, no, of course not, but there are consequences for people not fulfilling their responsibilities and the Secretary of State just sent it out. The fact that some of those consequences may actually mean that one of your rights is temporarily forfeited, if it is not the same thing, the punishment is in the law. The basic human rights say the same and so they should. It does not mean there is no value in articulating responsibilities for all the reasons the Secretary of State has so cogently outlined.

Q488 Lord Morris of Handsworth: It is a secondary loss rather than a primary loss.

Mr Straw: I am not quite sure I follow.

Q489 John Austin: You said in your original opening statement that this Bill of Rights would not qualify anything which is in the European Convention or take away anything; it would be a Human Rights Act plus, not a Human Rights Act minus. There are of course other international obligations that we have under various treaties and international agreements which are not, unlike the European Convention, in the Human Rights Act at the moment and therefore not part of UK law. What would you see the relationship between the new Bill of Rights and those other international obligations, such as the Convention on the rights of a child or the Convention on the discrimination against women?

Mr Straw: You have to make a judgment on a case by case basis whether you want to incorporate those into domestic law. I speak from memory, but one of the problems about incorporating those into domestic law and making that therefore enforceable here is that there is no appropriate international court equivalent to the Strasbourg Court to come to consistent decisions about these matters across jurisdictions. What we have sought to do with a lot of these international instruments is we have signed them, we have ratified them, but we have made deliberate decisions not to incorporate them into our law, but we have sought to ensure that the rights in these instruments are reflected in our law. I think that is the appropriate and safe way to do things.

Q490 John Austin: On the Convention on Trafficking, for example, you have said we will not ratify it until we have in place the mechanism to ensure that it can be implemented.

Mr Straw: Of course. That is really important.

Q491 John Austin: But we have ratified these other treaties.

Mr Straw: It depends inevitably on the precise text of the legal instrument, its scope, and above all what obligations it imposes on the British state.

Q492 John Austin: Would you say in principle to incorporate your obligations in those conventions in the Bill of Rights?

Mr Straw: The only principle is what is in the interests of the British people in these things. You have to do it on a case by case basis. I do not think in principle that just because we have signed and ratified an international convention we should be obliged to incorporate it into our domestic law. If we go down that route we end up in the position of the United States where in fact they do that so they end up not being party at all to all sorts of international instruments because they cannot get them through their Senate.

Q493 Chairman: When I go door-knocking around the streets of Hendon, as I do every weekend, I cannot recall anyone actually asking me where the Bill of Rights debate had got to. It does not seem to have chimed with public opinion. What are you going to do to try and generate public interest around it? Where have we got to in planning for the consultation and how are you going to make sure that it is not just the usual suspects?

Mr Straw: It was not raised with me when I was door-knocking in Blackburn and other towns before the local elections but it has been raised with me plenty of times indirectly in my open air meetings in the town where people have a go at the Human Rights Act "villains charter" and I have said the things I have said just now and then go on to say we are going to produce a British Bill of Rights and Responsibilities and I hope you find that appropriate. When I was doing Talk Sport, Mr John Gaunt, who has views to the right of anybody around this table by some margin ---

Q494 Chairman: Even the Earl of Onslow?

Mr Straw: Certainly the Earl of Onslow because he is undiscriminating in his belief about who should have rights.

Q495 Earl of Onslow: I do get a trickle of letters from people saying to me yes, well done on what you have said, keep it up, et cetera.

Mr Straw: There is an interest in it. How do we engage people? First of all, we get a document out and start engaging Parliament. You then generate debate and this will have a ripple effect. You get people from the Women's Institute to the UK Youth Parliament to everybody else debating it and I will address my constituents in the town centre of Blackburn about this. They may flee because you do not have a captive audience in that situation at all but I think they will be interested in it. It is inevitable that quite a number of these constitutional changes generate much more interest once they have been brought into force than they did beforehand. That was true of Human Rights, although there was some interest in it. It is certainly true of Freedom of Information which was debated over many hours with only the enthusiasts of Mike O'Brien and myself there. Even on devolution, although people understood the importance they did not really understand the significance until these things happened. I hope we are able to generate a bigger debate.

Mr Wills: One of the keys to doing that will be not to plonk it down in front of people as we go round the consultation process in one big wodge of paper, but to produce a document and then consult on different bits of it because the different bits of the document will have different effects. They will not all have the same legal effect and the more that we can crystallise it and bring it home and root it in people's own experience like, for example, in relation to the YL case, the better it will be.

Q496 Earl of Onslow: When we had the Northern Irish Human Rights Commission here they had a document in front of them which obviously was a document which nobody could agree on, so everything went in from you should do the washing-up on Tuesday afternoon only - I am exaggerating only a little - to get an agreed document. This was not a satisfactory document at all.

Mr Straw: It has to be finished but it must not be banal, but you cannot get to a point where it drops to the most common denominator.

Q497 Earl of Onslow: That is what this document in a way did.

Mr Straw: It is work in progress.

Q498 Lord Dubs: If I could ask you about the relationship between Parliament and the Bill of Rights and Responsibilities, you have both said Parliament has a crucial part to play in governance. Would you like to develop your thoughts about the relationship between Parliament and the Bill of Rights?

Mr Straw: Parliament will ultimately decide. Parliament can repeal it if it wishes. If it goes on the statute book, as I hope it will do, I have a shrewd idea that this Committee will be there to supervise its implementation.

Q499 Lord Dubs: I want to go back to the process. In a letter Michael Wills said that you wanted to take the opposition parties with you. Clearly you are aiming for consensus. The Earl of Onslow has referred to the Northern Ireland Commission - I think he was referring to the people who came to the forum rather than to the Commission - to what extent will the Government take the lead on this or do you envisage setting up an independent body to drive the process forward along the lines that was done in Northern Ireland?

Mr Straw: I think the Northern Ireland example is not appropriate here. We have to take the lead on it and we have decided to take the lead on it and we will see who follows. It will generate debate within parties as well as between parties. By consensus on this I do not mean unanimity any more than there was unanimity over the Human Rights Act, but we moved by a careful process of deliberation to a much broader consensus than we had started with.

Chairman: Thank you very much.