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Lord Davies of Oldham: My Lords, I hope that the noble Lord, Lord Laird, will forgive me for a moment. Perhaps I may draw the attention of the House to the fact that on Fridays we aim to complete our business as close as possible to four o'clock. At the present rate of progress, we shall be lucky to finish before seven o'clock. Therefore, I ask for contributions to be as brief as possible, even in this very important debate.
12.8 p.m.
Lord Laird: My Lords, noble Lords will be pleased to know that my contribution will be somewhat limited. I join other noble Lords in complimenting the noble Baroness on her presentation of the report. I also agree with a great deal of the report. I am particularly interested in a number of the points that she raised. I was struck by her words that we must not let human rights simply be an activity for human rights lawyers; we must ensure that they expand into society.
Another theme in the debate was the concept of education and changing the climate. I am very much of the opinion that that is the way forward. Human rights are not for people on this corner or that corner; they are for everyone. We must develop a situation in which human rights are not seen to be a threat or something that causes difficulty or as being only for a small section or a minority. No matter how one does the sums, whether one is a member of a majority or a minority and wherever one is, throughout the kaleidoscope of the population we are all supported by human rights and we should all support them.
I am more in favour of the educational approach to promoting human rights than the heavy-handed approach of continual interventionism. I am convinced that, as reflected during the debate, governments do not like human rights mechanisms. That is not because they are opposed to human rights; it is simply because they do not like people interfering with their right to govern. We have seen that all over the place.
I come from a part of the United Kingdom which has had experience of a human rights commission—Northern Ireland. Unfortunately, we got off to the worst possible start by having a perceived non-representative Human Rights Commission which tied itself into all kinds of knots. It has caused considerable difficulties with the concept of human rights for many people in Northern Ireland.
As a human rights activist I have attended meetings in Northern Ireland of human rights groups and I have had the point put to me that I should not be there because I am not an Irish Republican. That is totally unacceptable, but it shows a mindset and one must catch such matters at the beginning. People must understand that the only qualification for human rights is to be human.
I am not sure that using the example of the Irish Republic is a suitable basis for discussing the activities of a human rights commission. Six years after the Belfast agreement, grudgingly and slowly starting off with the Human Rights Commission, I believe we know much about human rights abuses in the Irish Republic. Any state that requires a qualification in Irish to get planning permission has a certain difficulty with human rights. I have a difficulty with the Human Rights Commission in the Irish Republic because it has refused to admit to its membership anyone of the Irish Government's national minority.
Lord Lester of Herne Hill: My Lords, to avoid any possible misunderstanding, I was referring to the Irish Human Rights Commission, not in any way to bless
Irish human rights practices or anything of that kind, but simply to refer to the powers given to it by the Irish Parliament, and to say that our commission should have no fewer powers.
Lord Laird: My Lords, I am delighted with that intervention. I accept that totally.
We of the Northern Irish viewpoint, with the nasty experience that we have had, would like to look forward to a fresh start. Perhaps we could be involved in the new United Kingdom mechanisms and machinery, which would be a much more satisfactory operation from our viewpoint. We have to ensure that the commission is accepted by the majority of people, whoever they may be. It must be representative of the community and report back to Parliament, not to government. I look forward to the day when we in Northern Ireland can make a fresh start.
12.12 p.m.
Lord Campbell of Alloway: My Lords, I crave leave to speak in the gap. In a debate to take note of this report, I suggest that noble Lords should also take note of the draft report of Mr Richard Shepherd, pages 91 to 98, which, had I been a member of the committee, I would have supported. I would have opposed the setting up of the commission for the reasons that were given some time ago by the noble and learned Lord, Lord Irvine of Lairg, which I thought were totally right, that it would undermine the legislative process and was not necessary. On page 89 one can see the kind of proposals to which objection should be taken: to be able to promote access to alternatives to litigation; to be able to apply to the courts for permission to appear; to be able to intervene as a third party in legal proceedings; to provide assistance to individuals; to be able to take cases in its own name; and to be able to seek judicial review.
In four minutes one cannot go into detail, but in essence, the noble and learned Lord, Lord Irvine of Lairg, was totally right in his view and for that reason—perhaps it is good to import some balance into the debate—I would oppose the setting up of a commission.
Within the timescale, the problem was well put and well reasoned at page 94 of the report, in paragraphs 12 to 17, by Mr Richard Shepherd, and it marries in substance with the view expressed by the noble and learned Lord, Lord Irvine of Lairg, some time ago. That being the problem, I ask noble Lords to look at two conclusions on page 95 in paragraphs 22 and 24. Paragraph 22 states:
- "It should be understood that Plato's Guardians sitting as a Court in Strasbourg do not secure our liberties. The custodians of our freedom are the people themselves . . . through the institutions—both Houses of Parliament".
- "The Court's judgements form part of our law"—
- "far beyond any reading of the Convention Rights. This framework circumvents what has been traditionally our constitutional process. In detaching accountability for law from the consent of the governed it undermines the central purpose of our legislative process".
12.16 p.m.
Lord Goodhart: My Lords, I welcome this report and the debate. I am most grateful, as I am sure we all are, to the noble Baroness, Lady Prashar, for introducing it.
The subject of human rights is one of the great political success stories of the period since World War II. It started with the Universal Declaration of Human Rights in 1948, which did not create binding legislation but was a declaration of common principles. The European Convention on Human Rights was ratified by the United Kingdom in 1951 and was largely drafted by British lawyers, including Sir David Maxwell Fyfe, later Lord Kilmuir. The European Convention on Human Rights was made much more effective for citizens of the United Kingdom by the acceptance in 1966 of the right of the individual to petition the European Court of Human Rights.
At one time, the United Kingdom was one of the states most frequently held in breach of rights under the convention. We learned from that the lesson that we had become complacent about the protection of human rights by our domestic law. We were not nearly as good as we thought we were.
Then came the Human Rights Act 1998, which makes convention rights enforceable in the United Kingdom courts. That was an enormous step forward. It is a monument to the work of the noble and learned Lord, Lord Irvine of Lairg. I join with my noble friend Lord Lester of Herne Hill in paying tribute to him for that. I also pay tribute to my noble friend himself who has dedicated decades of his life to trying to create a human rights Act for the United Kingdom.
To some extent matters have gone quiet since then. At page 6 the Joint Committee said:
- "We have not found evidence of the rapid development of awareness of a culture of respect for human rights and its implications throughout society, and what awareness there is often appears partial or ill-informed. We fear that the highwater mark has been passed, and that awareness of human rights is ebbing, both within public authorities and within the public at large".
Those fears have by and large been unfulfilled. The legal profession and the courts have reacted cautiously and sensibly. Few decisions have created a public outcry. The result is that the Human Rights Act has now largely merged into the system and is no longer seen as being particularly novel or revolutionary.
There is still some resistance to the Human Rights Act, especially in some sections of the Conservative Party, as demonstrated by Mr Richard Shepherd on the Joint Committee—although by no other member—and by the noble Lord, Lord Campbell of Alloway, in the brief speech that he has just made. However, I believe that the Human Rights Act is sufficiently entrenched to make it—at the very least—extremely difficult to repeal. I shall wait with interest to see what the noble Lord, Lord Henley, says about the Act when reflecting on the present views of the Conservative Party.
I entirely agree with the committee that what we now need is effectively a relaunch. Now that the Human Rights Act is in effect part of the scenery, we need to make both public authorities and citizens conscious of it.
Perhaps I may read one other quotation from the report. The committee stated:
- "It is clear to us that, by and large, public authorities, and those who inspect, advise and audit them, do not give a high priority to placing respect for human rights at the heart of their policies and practices. Insufficient energy is being given to communicating a vision to public authorities to help them understand how a culture of respect for human rights might look or how it could be delivered".
That is an example of one way to encourage the development of the human rights culture in this country. More widely, I believe that the creation of a human rights commission is essential if the good intentions behind the Human Rights Act are to become reality. As the report states in paragraph 99:
- "A culture of respect for human rights cannot be developed through the courts alone".
I agree very much with the recommendations in the report for the role of the human rights commission. There is, of course, an important public relations role through the promotion of human rights culture and education in human rights.
The commission should be able to conduct public inquiries on human rights issues. That is a duty of human rights commissions in a number of Commonwealth countries—Australia, India and South Africa. The commission should be able to inquire into any practices within any public authority that appear not to comply with human rights standards and to report on the results of its inquiry.
More difficult is the question of providing advice and assistance in individual cases. I agree that the commission should not normally do that directly. That would divert it from its real role of leadership and the promotion of human rights. But it should be able to support and help with the provision of advice and assistance by others—in particular by voluntary organisations—and by lawyers in private practice.
The commission should certainly have power to intervene and, with the leave of the court, to submit an amicus brief in cases which raise important human rights issues. Other organisations already do that; for example, Justice.
The committee was divided on whether the commission should have power to give direct assistance to parties in strategic cases. I believe that this power is in fact greatly needed where the case raises important issues that would otherwise not reach a court or, if it did, would not be adequately presented.
The question whether the human rights commission should be a free-standing commission or part of a single human rights and equality commission is difficult and controversial. The Government are already planning to go ahead with a single equality commission to cover the responsibilities presently exercised by the Equal Opportunities Commission, the Commission for Racial Equality and the Disability Rights Commission.
Much of the work of the equality commission will be human rights work. The report shows the extent of the wide overlap between them. Like the committee, I would prefer to see a single human rights and equality commission. I agree, however, with my noble friend Lord Lester that it must not be an amalgamation but a new, powerful, independent and properly funded body.
I agree with the noble Baroness, Lady Whitaker, that the human rights commission should report on the human rights implications of foreign treaties, conventions and other obligations, which, by agreement, the United Kingdom proposes to enter into, in the exercise of the prerogative power. I agree very strongly indeed with the noble Baroness, Lady Stern, that we should have a ministry of justice and that the present provisions for the custody of children in this country are deeply flawed and do not comply with international standards.
As I said at the beginning, human rights have largely been a success story. But there are, I believe, other and darker changes in modern times in our society. I fear that we are becoming a more brutal and vindictive society. Violence is fuelled by alcohol. We see such things as the adulation by a section of the public of Tony Martin for shooting dead an unarmed teenage burglar who was running away from him. We have the constant call for ever longer sentences when we in this country already impose tougher sentences than most—if not all—other EU countries. That is another reason why human rights are more important than ever.
A human rights commission should have been set up when the Human Rights Act came into force; but our need for it now is as great as, if not greater than, when it was enacted.
We welcome the report and very much hope that the Government will accept and act on it.
12.27 p.m.
Lord Henley: My Lords, mindful of the strictures of the noble Lord, Lord Davies of Oldham, I shall keep my remarks as brief as possible. I should say to the Government that this report, which we all agree is a very important report—issued I believe on 3 March 2003, almost a year ago—should not have been relegated to a Friday morning; it should really have been debated on some other occasion. Perhaps the noble and learned Lord could respond on why a report of such importance has been left so late and to a Friday almost a year after it was issued.
I congratulate the noble Baroness, Lady Prashar, on introducing this very important debate, again bearing in mind that I should have been happier if the debate had been held on another day and sooner. In passing, I offer my commiserations on her broken arm. I offer my congratulations to the members of the committee on all their work and on the fact that they were able to reach a conclusion, albeit with one dissenting voice.
The committee concluded that there was an overwhelming case for establishing a commission. It described the case as "compelling". It stated that Her Majesty's Government, having introduced the Human Rights Act, hoped that it would help "nurture",
- "a 'culture of understanding of rights and responsibilities' in the UK".
The Government obviously have a duty of leadership. As the report put it:
- "If it wills the end, it must also will the means".
The question must then be put to the Government of what sort of commission should be established. There are arguments in favour of merging the existing equality commissions with a new human rights commission. The noble Lord, Lord Lester, made some strong points against merely doing so. There are also arguments in favour of creating a separate commission purely dealing with human rights and leaving the others as they are. No doubt we shall shortly hear from the noble and learned Lord the Lord Chancellor exactly what the Government propose. I hope that we will hear a little more detail than we did last October about the merging of those bodies with a new human rights commission.
Before we do so, I shall make one or two points. We first need to decide whether a commission is necessary at all and at this stage. As has been pointed out, the
committee argued that the case is compelling. There are, however, contrary views, which were put before the committee. The committee itself cited a number of them, including that a commission with extensive regulatory, adjudicative or coercive powers exercised without a process of accountability may well usurp the proper functions of some or all three parts of the constitution: the executive, Parliament and the courts.The committee also heard the argument that a commission might simply duplicate the work of other bodies, such as the Joint Committee itself, the Home Office, the Human Rights Task Force and various non-governmental organisations. Another argument was that an independent body charged with promoting human rights might also increase the risk of further challenges to the needs of the state, especially if it sided with contentious cases, taking an oppositionist stand. It also heard the idea of a "wait and see" approach, giving the Human Rights Act 1998 a little more time to bed down to ensure that a commission is established to meet an actual need, rather than creating a new one. I appreciate that the committee did not accept those arguments, but I should be grateful to hear again the Government's view on whether that is the right way to proceed.
Having addressed the question of whether the commission is necessary or desirable—and whether it is necessary or desirable now—the next question is obviously what sort of commission we are talking about. I imagine that that question has to be taken alongside the first. I am sure that we would all agree that the wrong sort of commission might well be worse than no commission at all.
Again, I note the remarks of the noble Lord, Lord Lester of Herne Hill, about whether it was desirable to merge existing equality commissions with a new human rights commission. Here I welcome many of the committee's comments in its summary on page 8, when it discusses powers and functions. I especially welcome its statement in the first paragraph:
- "Nor should it be a body with an adversarial or litigious approach to its mission".
- "to promote human rights in public authorities in the delivery of services".
- "It would need to offer guidance to, and promote best practice in, public authorities in relation to human rights".
- "It should not itself be driven by the task of handling individual complaints".
The committee also—here I declare an interest as someone involved in mediation—states its desire to promote alternative dispute resolution procedures, which,
- "might provide a remedy for violations or potential violations of rights in appropriate circumstances".
I was slightly more worried by the comments in the final paragraph of that section on powers and functions, where the committee mentions the commission playing,
- "a valuable role in assisting the courts in determining human rights questions".
- "as a friend of the court or as a third party intervener",
I also welcome the committee's desire that any commission should be accountable to Parliament and that Parliament be consulted on appointments. Again in passing, I noted the comments of the noble Lord, Lord Lester of Herne Hill, on the possible appointment of some individual as chairman of some future commission—that individual being, as he put it, someone relatively close to the Government. We would all welcome a response from the noble and learned Lord on that point.
Lastly, I should welcome hearing the noble and learned Lord's views on all other matters relating to the Joint Committee's report and hope that although it is almost 11 months after the publication of the report, we can have a full and detailed response.
12.36 p.m.
The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton): I join other noble Lords in congratulating the noble Baroness, Lady Prashar, on securing this debate. I especially welcome it for two reasons. First, the sixth report of the Joint Committee is a very important report. Noble Lords will know that the Government have already accepted its central recommendation. Securing a debate today gives everyone an opportunity to mark that occasion, but also to discuss the detail of what follows. I welcome the opportunity to answer the specific points raised.
I also welcome the opportunity to reaffirm the Government's commitment not just to the principle of the Human Rights Act 1998 but to the culture of human rights, which forms such an important plank in the report.
I also join noble Lords who have paid tribute to my predecessor, my noble and learned friend Lord Irvine of Lairg in relation to human rights in three particular respects. Without his personal commitment there would not have been a Human Rights Act; secondly, separately from his commitment to the principle, it was he who thought of the method by which it was introduced; and, thirdly, without his drive to get it through Parliament, it would not have occurred. So I welcome the tributes paid to him.
The House will know that the committee spent two years, from March 2001 to March 2003, conducting the inquiry that led to the report. That is testimony to
the care taken about the report and its importance. In the course of the inquiry, the committee took evidence from a considerable range of people, including the then United Nations High Commissioner for Human Rights, Mary Robinson, my predecessor as Lord Chancellor, my noble and learned friend Lord Irvine of Lairg, the three chairs of the equality commissions and others besides, including a great many written submissions.The work done for the report was immense, comprehensive and far-reaching. That care demonstrates that Parliament was right not to rush to a conclusion in respect of a human rights commission in the course of passing what became the Human Rights Act 1998. Instead, Parliament set up the Joint Committee, suggesting that one of its first tasks might be to inquire into issues such as the relationship with the equality commissions. The Government undertook at the time to give any recommendation of the committee in that respect the most careful consideration.
As I have said, and as is well known to the House, the committee's concluding recommendation in its sixth report was that the Government move to create an integrated commission for equality and human rights. On 30 October 2003, we made it clear that we accepted that central recommendation. It was in no small part a reflection of the work of the Committee that that decision came about. The noble and wholly committed Members of this House who serve on that committee, many of whom have taken part in this debate, together with the Members of the other Place, can feel justly pleased in their work, and this House in them. I join the noble Baroness, Lady Whitaker, in paying tribute to the committee chairman, Jean Corston, and the committee Clerk, who made such a fantastic contribution.
The decision to create a commission for equality and human rights in Great Britain sends out an important signal, not only to those in the United Nations and elsewhere in the international community, but also to the people of this country, that we are wholly committed to human rights. I have heard it said by some that they think this Government regret the passage of the Human Rights Act 1998, or even that we have resiled from our aim to build a culture of respect for human rights in this country. Nothing could be further from the truth. Let the decision to accept the principal recommendation of the 6th report of the Joint Committee stand as an emphatic rebuttal to those who make that claim.
The commission will be a significant development in the protection and promotion of equality, and for the elimination of discrimination. I accept that that carries with it very many questions, not least of which is the relationship between equality and human rights within the body, a point raised by the noble Lord, Lord Lester of Herne Hill. I hope that noble Lords will agree that, while equality is always about dignity, dignity is not always about equality; in other words, human rights include but go beyond equality issues. That is to be reflected in the new body; therefore, human rights will not be a seventh strand but will inform and support the
six equality strands. It will be a free-standing subject for the body to promote whether or not there is a linked equality issue.Thus the new commission will embrace the principle that equality is a fundamental human right. It will draw together, not only the existing equality protections, but will make provision for the new strands of protection: age, religion or belief and sexual orientation. I have no doubt that having human rights will enable the body to weave them together very effectively.
That decision, proposed by the Joint Committee, also serves to bring to an end the artificial distinction between equality and human rights that has existed in this country. That was a distinction without a difference, and one that seemed to ignore, or forget, that it was in the horrors of the Second World War, involving so much discrimination and persecution of minorities, that were found the reasons for the drawing-up of the international human rights instruments, in which British lawyers had so much to contribute.
However, I also agree with the points made by many noble Lords that human rights are not just for lawyers, and not just about the needs of minorities, but are relevant to every person in this country. I agree fully with the point made by the noble Lord, Lord Laird, that they are not for one group in this corner, or one group in that corner, but for the whole community. I agree fully with the point made by my noble friend Lady Whitaker that they affect how public services are delivered. They affect, for example, how elderly relatives might be treated by our health services, how housing decisions might be made or how the mentally unwell might be treated. In short, they apply to everybody and to everyday situations.
Of course, the Human Rights Act was used to provide a remedy in domestic courts for any breaches of the convention rights. However, we did not intend just that there be a compliance culture in this country. As many noble Lords will remember from the debates as the Bill was going through Parliament, and as was repeated by the noble Baroness, Lady Prashar, what was hoped for over and above legal compliance was the development of a culture of rights and responsibilities centred on our public services.
How is that culture to be defined? I can do no better than to read an extract from the Joint Committee's 6th report:
- "A culture of respect for human rights would exist when there was a widely-shared sense of entitlement to these rights, of personal responsibility and of respect for the rights of others, and when this influenced all our institutional policies and practices".
- "This would help create a more humane society, a more responsive government and better public services, and could help to deepen and widen democracy by increasing the sense amongst individual men and women that they have a stake in the way in which they are governed. For these and other reasons we believe a culture of respect for human rights is a goal worth striving for".
Perhaps I may deal with the specific points, as there is a long way to go in getting the commission up and running. First, I agree entirely that the body must be independent, and it must be seen to be so. I do not think that special arrangements such as those that apply to the National Audit Office need to be created to achieve that. By way of example, let us consider the Disability Rights Commission—would people regard that as not being independent? I give to the noble Lord, Lord Lester of Herne Hill, the assurance that I gave in Parliament previously: a proper process in accordance with Nolan principles will be followed before the appointment of the chairman and other members, and there is no such intention as he indicated.
Secondly, we all agree that the body must be properly resourced to be effective. I anticipate that there might be disagreements in the future on what constitutes sufficient resources, but we would all agree on the principle that there must be sufficient resources.
Thirdly, the noble Lord, Lord Lester, was supported by others in making the point that the commission's law enforcement functions must be carried out to the best of its ability. I agree entirely. The dead weight of the past must not be allowed to influence the way in which those powers are enforced. That reflects the point made by the noble Baroness, Lady Prashar, that the commission must not be seen as simply a merger of existing organisations, but as a wholly new body that looks at the issues in a new way. I agree with that, and that it will affect the way in which the commission carries out its law enforcement functions.
I agree that the commitment to human rights must not dilute activity to combat discrimination. I also agree that all discrimination must be fought. Of course some prioritisation must take place, but that must be in the context of the commission's being responsible for all the discriminations covered.
The noble Lord, Lord Lester of Herne Hill, put a case for trying to introduce a single equality Act, if we have a single equality and human rights body. We must determine what the priorities are in a demanding legislative programme. We do not believe that such an Act is needed to make progress on the sorts of things that the commission can deliver. I would not like it to be thought that we need such an Act in order for the commission to make progress. We hear the case that is made; we have no immediate proposals to introduce such a Bill. However, we will continue to look at the desirability of ongoing alterations to legislation, particularly the desirability of an opportunity to introduce a positive duty on gender discrimination. But we believe that our current priority should be to deliver a new commission that actually works.
Several noble Lords asked whether the mandate of the body would go beyond the mainstream rights referred to in the ECHR. The Government have not decided that the new body would be strictly confined to the ECHR. We are in listening mode on that point as on others. As I told the committee when I gave evidence on the topic just before the Christmas Recess, I can certainly see the argument for addressing human rights defined in a broad inclusive sense, but I also made it clear that, inevitably, priority would have to be given to those rights covered by the ECHR.
The noble Lord, Lord Lester of Herne Hill, went a little too far when he ruled out all additional powers relating to human rights litigation. The report said that promotional activity was the main human rights issue. But we are looking at those issues.
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