§ Baroness Prashar rose to move, That this House takes note of the report of the Joint Committee on Human Rights on The Case for a Human Rights Commission(6th Report, Session 2002–03, HL Paper 67).
§ The noble Baroness said: My Lords, I am very pleased to have the opportunity to open this debate. Before I address the substance of the report, I would like to thank all those who contributed to it. We obtained a substantial quantity of written and oral evidence, benefited greatly from our visits to Northern Ireland, Scotland, India, Australia and New Zealand, and from vast amounts of specific and general research on the nature and structure of national human rights institutions. We were greatly assisted by our special advisers and Clerks from both Houses. Our deliberations, which were often heated but always illuminating, lasted nearly two years.
§ In March 2003, the Joint Committee on Human Rights, which is ably and admirably chaired by Mrs Jean Corston in the other place and on which I serve, published the report on the case for a human rights commission.
§ In the 1997 White Paper, Rights Brought Home, the Government suggested that any parliamentary committee on human rights that was established after the Human Rights Act was passed might examine whether a human rights commission was needed and how it should operate. The Government undertook to give full weight to the findings of such a committee. This report is our response. We concluded that the case for establishing an independent body to promote a culture of respect for human rights and protect human rights in England and Wales is compelling.
§ This report also constituted our formal response to the Government's consultation on institutional arrangements for the promotion of equality and diversity. The right to equality of treatment and enjoyment of other rights without discrimination is a fundamental human right. There is a considerable degree of congruence between the work required for the promotion of equality and that required for the promotion and protection of human rights. There are divergences, but, on balance, we concluded that our preferred option is an integrated human rights and equality commission.
§ Although we have not had a formal response to our report, the Government have published a draft statement in which they said that they had considered carefully our report and decided that the new body's remit should cover the promotion of human rights 742 together with responsibility for equality. Of course, we welcome the Government's decision to create a single equality and human rights commission, but will watch with keen interest to see how it is structured and what powers and functions it will have.
§ In December 2003, the Joint Committee also took oral evidence from the noble and learned Lord the Lord Chancellor when we were able to explore with him some of the issues raised in our report. Although some of the issues that I intend to raise this morning have been covered by the Government's statement regarding the proposed equality and human rights commission and as part of the oral evidence that we took from the noble and learned Lord, it is still worth covering some of the same ground and seeking further clarification on issues such as the functions, structure and governance of the new commission. Before stating the specific questions which need consideration, I would like to spell out why the committee felt that the need for a human rights commission was compelling.
§ After examining all the evidence before us, we concluded that the development of a culture of respect for human rights is in danger of stalling. Human rights have the potential to be agents of positive change. There is, however, a danger that this potential will be dissipated if human rights are perceived as solely of interest to lawyers. There is an urgent need for the momentum to be revived and the project driven forward. Since the Government are committed to developing a culture of respect for human rights, they have a duty of leadership. If they will the end, they must also will the means. Precious time has already been wasted. It is still some two years before we will actually have a single body to promote equality and human rights. It is important to keep up the momentum.
§ We recognise that building a human rights culture is an ambitious vision. There are many barriers to achieving it. The greatest of these is ignorance, and some may well ask, "What is a culture of respect for human rights?" In such a culture, people will be better informed about their rights and responsibilities and what they could mean in practice. The most vulnerable will be better protected from violations of human rights. Government and public authorities would protect and promote human rights standards and treat all people with dignity, fairness and respect. Those standards will be generally accepted as those by which we should all strive to treat each other and people will recognise and value their own rights and those of others. People's human rights can be violated every day—in the provision of housing, education and health services. We took evidence from the wide range of bodies concerned with monitoring and regulating public authorities. It was clear that, by and large, public authorities and those who inspect, advise and audit them do not give a high priority to human rights.
§ We found that public authorities such as local councils and hospitals do not by and large put respect for human rights at the heart of their policies and practices. They do enough to avoid litigation, but no more. However, that is not always the result of deliberate neglect; for the most part, it is the result of 743 lack of awareness, lack of leadership and lack of help. There is no vision, no administrative framework and scant guidance reaching public authorities to tell them how a culture of respect for human rights might look and how it can be delivered.
§ There is a need for the active promotion of understanding that convention rights can cause positive duties in public authority. Too often, human rights are looked upon as something from which the state needs to defend itself, rather than to promote as its core ethical value. There is a failure to recognise the important part that the state can play in promoting social justice and inclusion in the drive to improve public services. Our inquiry persuaded us that the best way of encouraging a culture of human rights was by demonstrating that human rights, as the British Institute for Human Rights said, "have something for everyone", in areas such as treatment of the elderly, healthcare provisions, adequate housing, and so on. Many of the rights involved are social and economic rights, and those issues lie at the heart of the Government's agenda to reform public services.
§ We therefore believe that a more explicit commitment to effective implementation of the covenant of economic, social and culture rights would help to promote a culture of respect for human rights as well as giving a useful point of focus for the Government's plans for improving public services. Against that background, our conclusion was that human rights need a home and an independent champion. That would give human rights focus and resources and a degree of institutional stability, which we have not had to date.
§ The role of this champion would be to encourage respect for human rights among public authorities as a matter of best practice rather than risk avoidance; to promote an understanding that human rights principles provide a framework within which vulnerable and disadvantaged people can negotiate with public authorities for better conditions and treatment; to conduct inquires into systematic problems and encourage mediations in situations of conflict; to participate in public debate and be a beacon and rallying point for the defence of human rights values when commitment to them was weak or under attack, whether from within government or without; and to be a critical friend to government.
§ To be an effective body, it is crucial that the commission has appropriate functions and relevant powers. We listed a number of powers that we believe that the commission should have, particularly in relation to human rights. It should have the power to promote an understanding and awareness of human rights, including not only convention rights but also rights embodied in international human rights instruments which bind the UK; to conduct and commission research and provide financial and other assistance for educational activities; to conduct inquiries into matters of public policy and practice; to give guidance to and promote best practice in public authorities; to offer guidance and advice to Ministers and Parliament; to publish reports on any of the above matters; to assist in the provision of advice and 744 assistance to members of the public on ways in which to find help to protect, assert or vindicate their rights; to support and promote access to alternatives to litigation in disputes; to apply to the courts for permission to appear as amicus curiae in proceedings; or to intervene as a third party in legal proceedings.
§ Alongside those powers, we published a consultation document and sought views on three issues: first, whether it would be desirable for such a body to have powers and functions to provide assistance, including financial assistance, to individuals to take test cases relating to convention rights questions; secondly, whether it should be able to take cases in its own name where a victim of a breach of convention rights cannot be identified: and, thirdly, whether it should be able to apply for judicial review in its own name in relation to questions connected with human rights.
§ Apart from functions and powers, accountability and independence of any new body is crucial, if it is to have the desired effect. We were strongly of the view that the commission should be accountable to Parliament rather than the Government and outlined a number of options on how the accountability would work. We have sought views on the details on how the commission would be held accountable. However, we do not consider that the standard model of accountability that applies to non-departmental public bodies is a sufficiently outward and visible guarantee for independence from government. To ensure complete independence for the body, we suggested that there should be some form of statutory requirement to consult Parliament on the appointment of the commissioners of' the new body, and that they should be appointed according to Nolan rules.
§ Now that the Government have agreed to establish a single equality and human rights commission, it is important that the new body should not be seen as a merger between the existing equality commissions with human rights attached to it and as a poor relation. It should be a new integrated body with a new approach and ethos. Its approach should be inclusive and designed to strengthen its ability to promote a culture that respects the dignity, work and human rights of everyone.
§ When the Government announced the establishment of the Commission for Equality and Human Rights in October 2003, they said that no conclusions on key issues, such as the governance of the body and its internal structures, had been reached and that a task force had been established to advise government on these and other relevant issues. They said the role of the new commission would be to promote a culture of respect for human rights, especially in the delivery of public services. Will the Minister clarify what this task force will he looking at and what are the limits on its discretion to make recommendations? In respect of human rights, what, if anything, has been ruled in or ruled out?
§ It would also he helpful to know how our recommendations will be considered by the task force and, where our recommendations are rejected, whether we will be given reasons. Will the new body have an enforcement role—that is, the adjudication powers that the current Equal Opportunities Commission, the Commission for Racial Equality and the Disability 745 Rights Commission have to enforce gender, race and disability equality legislation by issuing non-discrimination notices to named persons and applying to the court for injunctions?
§ Furthermore, is it envisaged that the power to conduct thematic inquiries into the handling of human rights issues will be along the lines we recommended in our report—that is, the power to initiate public inquiries and, with the appropriate safeguards, the power to call persons and papers?
§ We suggested that the commission should apply to the court for orders to compel witnesses to give evidence and produce documents. We were concerned that a procedure requiring authorisation by a Secretary of State would not sufficiently meet Article 6 requirements. Does the Minister agree that it is essential that the commission is seen to be independent of government and should be able to exercise its public inquiry power on its own account?
§ Finally, in paving the way legislatively for the establishment of the new commission, would not a unified framework of equality legislation make the whole process of integration much simpler? There is now a positive duty on public bodies to promote racial equality and good community relations. Positive duties for gender and disability have also been promised. If legislation is to be introduced for some equality strands, do the Government agree that there is a rationale for extending that positive duty not only to all six equality strands but also to equality as a whole?
§ In relation to human rights, and particularly in view of the recent court decisions on the nature of positive obligations on public authorities to secure convention rights, are the Government concerned to ensure that legislation underpinning promotional work for human rights is at least equal to that provided for equality?
§ To sum up, we all believe that the Human Rights Act is a force for good and that we have a duty to ensure that the aspirations of the Act are made a reality, not by encouraging a culture of negative compliance, but by positively promoting a culture of respect for human rights. Positive promotion requires a champion—a commission that has effective powers, adequate resources and is truly independent of government. I very much hope that we will get such a commission. I look forward to hearing the views of other speakers and to the response of the Lord Chancellor. I beg to move.
§ Moved, That this House takes note of the report of the Joint Committee on Human Rights on The Case for a Human Rights Commission(6th Report, Session 2002–03, HL Paper 67).—(Baroness Prashar)
§ 11.24 a.m.
§ Lord Lester of Herne Hill
My Lords, it is a particular pleasure to speak in this debate immediately after the noble Baroness, Lady Prashar, has so ably and comprehensively introduced the committee's report. She and I have worked together for many years seeking to promote equality of opportunity without 746 discrimination, especially racial equality. as well as working for the effective protection of human rights generally.
I speak as a member of the Joint Select Committee on Human Rights, as one of the architects of the Sex Discrimination and Race Relations Acts and as someone who has acted as counsel for the Equal Opportunities Commissions here and in Northern Ireland and for the Commission for Racial Equality.
We on these Benches welcome the Government's decision to set up a new equality and human rights commission in accordance with the committee's recommendations provided, and I emphasise provided, that some basic conditions are met. That proviso is crucial and I hope that the noble and learned Lord the Lord Chancellor will be able to give a positive response to each of them in his reply to the debate.
Meanwhile, I should like to pay tribute to the noble and learned Lord, Lord Irvine of Lairg, who I am delighted to see in his place. I do so not only because he is a great champion of human rights, now unfortunately lost to the wise counsels of Cabinet, but also because I am convinced that without his personal role we would not have made the progress that is being made towards an equality and human rights commission. I am perfectly satisfied that that is the case.
The decision is long overdue. In March 1997, the Labour and Liberal Democrat Joint Consultative Committee on Constitutional Reform, which was co-chaired by Robin Cook MP and my noble friend Lord Maclennan of Rogart, published a report in which both parties envisaged that there would be a human rights commission or commissioner to advise and assist those seeking protection of their rights under the European Convention on Human Rights and be able to bring legal proceedings in its own name. In a Labour Party briefing paper by the noble Lord, Lord Warner—then special adviser to the shadow Home Secretary, the right honourable Jack Straw MP—it was envisaged that there would indeed be a human rights commission set up within what was described as "a reasonable time".
As a result of a complaint that I was driven to make as the result of some hilarious correspondence between me and the noble and learned Lord, Lord Irvine of Lairg, about the unnecessary secrecy surrounding the disclosure of the background documents relating to the making of the Human Rights Act—correspondence in which the noble and learned Lord was kind enough to tell me to wait for 30 years since he thought that I was in robust health and at the age of 94 would enjoy reading the record—I am glad to say that some redacted documents were disclosed to me, crudely and quite unnecessarily censored in black. Among those documents was a Home Office minute of June 1997 which indicated clearly that there would be a human rights commission. Unfortunately—I suspect because the Treasury blocked the proposal—it was kicked into extremely long grass.
747 As the noble Baroness, Lady Prashar, said, the Government announced that they would ask the Joint Select Committee on Human Rights to consider the case for a human rights commission. But there was a snag: there was no Joint Select Committee on Human Rights, and there was not for several valuable years which were wasted before eventually our committee was established under the great chairing of Jean Corston MP, to whom I also pay great tribute. That was a regrettable waste of time because the time when a human rights commission was most needed was in the period following enactment of the Human Rights Act, when a culture of respect for human rights could have been promoted, including understanding of the meaning of that Act. Even now, seven years later, the Government are dragging their feet, with a task force to follow our detailed work before there is any commitment to use parliamentary time to legislate in this important area.
I turn now to the basic conditions that in my view must be satisfied if the new commission is to succeed in its daunting tasks. If I do not refer to the detailed speech made by the noble Baroness it is because I do not want to repeat anything that she has said. I agree with it in its totality; I simply wish to emphasise certain points.
The first is that the commission's leadership must be chosen to ensure that it is completely independent of government. There continue to be rumours among sensible people—they are only rumours—that despite the Government's undertaking to appoint the chair and other members of the new commission in compliance with the spirit and letter of the Nolan principles, the chair has been in some way promised to a close political friend of the Government. Many in the field are concerned that the new commission will not be robustly independent but will be executive minded. We shall have to wait and see. I have no doubt that the noble and learned Lord will reassure us in his reply that it will be independent. We shall have to wait to see how that works in practice.
My second point concerns resources. In terms of the commission's funding and staffing, the resources must be sufficient to ensure that it is able to tackle unjustifiable discrimination wherever it exists, as well as tackling breaches of human rights beyond the equality field. After my noble friend Lord Jenkins of Hillhead and I left the Home Office in 1976, successive governments have clipped the wings of existing commissions in part by starving them of necessary resources to carry out their crucial law enforcement functions. In my view that must stop.
Thirdly, the chair and other members of the commission and their staff must be both able and willing to carry out their vital strategic law enforcement functions as a main priority and not as an optional extra, and to do so to the best professional standards that one finds in other enforcement agencies. This means that the commission must not be an amalgamation of the existing equality commissions and their staff but a genuinely new and powerful body. The dead weight of custom and practice for over 30 748 years and jobs for the staff of the old commissions must not be allowed to rule the future commission; otherwise, it will be doomed from the start.
The fourth point is that the commission's important task in promoting a culture of respect for human rights must not weaken really effective action to tackle discrimination. There must be no levelling down of existing protection against discrimination, but a levelling up. That is easy for me to say, but it is difficult to achieve.
My fifth point is that the commission must demonstrate that it will give equal protection to all the victims of the different forms of discrimination, including the special needs of the disabled. My Equality Bill that was approved by this House last year sought to do that in a way that would not tear the fabric of the commission and make it into a body that was full of separate, self-contained and different compartments.
Sixthly, the poor old Equality and Human Rights Commission is to inherit a tangled and incoherent mess of existing equality laws that need to be replaced as a high priority by a comprehensive, coherent and user-friendly single equality Act that gives effect to the wise and practical proposals made by Professor Sir Bob Hepple QC and his colleagues in their authoritative report.
Britain's equality code is a tangled thicket of inconsistent and incomplete legislation in urgent need of coherent reform. Its complexity makes it especially difficult for small businesses to comply with their legal obligations and hinders victims in their access to justice. Even the basic concepts of discrimination differ without rhyme or reason in the hotchpotch of different statutes. The equality agencies that were created to tackle entrenched discriminatory practices by means of strategic law enforcement have never treated that as their main priority and are not resourced to do so.
The poor old Equal Pay Act is hopelessly complex and ineffective. Equal pay between women and men remains a goal still to be achieved 33 years after the Equal Pay Act was introduced by Barbara Castle. Some 246 Members of the other place signed an Early Day Motion supporting my single Equality Bill, or a single equality Bill, but the Government refuse to recognise the pressing need for a coherent, user-friendly framework covering all the main types of unjustifiable discrimination on grounds of gender, sexuality, ethnicity, disability, religious belief or lack of it, and age, not only in employment but also in education, housing, goods and services. The Government do not recognise that instead of relying upon a negative duty not to discriminate, as the noble Baroness, Lady Prashar, said, a new equality Act needs to place positive equality duties on public bodies and to require large employers to introduce equity plans.
Rather than introduce an equality Bill to clarify and simplify the law, I am sorry to say that the Government have used cramped, delegated legislation to give effect to the European equality directives. By deciding not to 749 bring in primary legislation, the Government have fettered Parliament's ability to legislate to tackle unjustifiable discrimination, in the words of Labour's 1997 election manifesto, "wherever it exists". The Government have even excluded discrimination on grounds of colour from the strengthened Race Relations Act and introduced a wide loophole to permit discrimination against gay and lesbian workers to appease the strongly held views of homophobic extreme religious groups.
Seventhly—I have only two more points after this—the commission's mandate must cover not only human rights in the context of equality but all of the human rights, economic and social as well as civil and political, protected by the international human rights treaties by which the United Kingdom is bound. That is particularly important now that we also have a European Charter of Fundamental Rights. The Government have not accepted that that should he so, yet if the commission is to deal only with human rights in the context of equality, it will not be a human rights commission worthy of the name.
Eighthly, the commission must have adequate powers to investigate practices and procedures that are incompatible not only with discrimination but also with human rights standards, including, as the noble Baroness said, the power to obtain information and to bring legal proceedings for breaches of the convention rights. The Government have not yet recognised that the commission should have any powers beyond those now given to the existing equality agencies. But, if I may say so, there is no point in creating a toothless human rights commission as a kind of statutory NGO. Surely the new commission should be no less powerful than, for example, the Irish Human Rights Commission in Dublin.
Finally, I was persuaded by the noble Baroness. Lady Prashar, and the majority of my fellow members of the committee to recommend a single commission. I did so reluctantly and because it was made clear that the Government would not accept a separate human rights commission linked with an equality commission. I was, and remain, concerned that it will be difficult to create a successful equality commission—more successful than anything we have seen so far—without overloading it with an even broader mandate to tackle abuses of human rights generally. It will be even more difficult for the project to succeed if the commission is lopsided, with strong powers to tackle inequality and few powers to tackle wider human rights abuses. It would be beyond the ability of the most gifted commissioners and the most professional staff to enable such a commission to succeed in the ways that I and the committee hope will happen.
As I said, I hope that the Minister will address those concerns in his reply, that the task force will be robust in its advice, that its advice—the noble Baroness mentioned this— will be published, and that the Government will introduce really effective legislation to translate the ideals of equality and human rights into practical reality and make those ideals valuable to ordinary men and women.
§ 11.39 a.m.
§ Baroness Whitaker
My Lords, I am proud of this report. It was quite a long journey, and arrival is an immense tribute to the chair, my right honourable friend Jean Corston, our Clerk, Paul Evans, and all our advisers and staff. I am in fact more than proud; I am exhilarated, because it is a rare privilege to be in at the beginning of a potentially transformational event. The report sets out the case, which the Government have accepted, for a deep but subtle change for the better in the relation of the state—public authorities—to the citizen.
What is this change all about? In the report, we call it a human rights culture. We say that, although we have an excellent Human Rights Act, it has not inspired the public authorities to take its values to heart throughout their conduct. As the noble Baroness, Lady Prashar, said in her comprehensive and illuminating speech, our stretched and target-oriented public services can lose sight of their real purpose. Mary Robinson reminded us of the founding human rights document, the United Nations charter, which states,determined to reaffirm faith in fundamental human rights, in the dignity and worth of the human person".I say again,the dignity and worth of the human person".We looked to see how far the dignity and worth of the human person was respected by our public authorities. We found—and the British Institute of Human Rights found in Jenny Watson's excellent report, Something for Everyone— that old people in a residential home might be fed their breakfast sitting on a commode; that an elderly man might he left naked in public while undergoing medical procedures; that children in care can he kept hundreds of miles from their siblings or moved 35 times in three years; that boys of African-Caribbean origin are over five times more likely to be excluded from school, thereby materially undermining their chances of qualification and employment; that the children of travellers in Northern Ireland have a mortality rate 10 times that of the settled community; that adults with learning difficulties may be indiscriminately forbidden from forming intimate relationships; that deaf people may be denied interpreters when arrested and refused bail; and that child carers may be denied their right to education. The list is endless.
While no one would claim that those extremes sum up our public services, whose women and men contribute every day to the humanity and solidarity of our society for not very much money and often without much appreciation, equally many would agree with the Government that the culture of service delivery is in need of reform. I speak as one who, some years ago, administered various parts of the public service, and I noticed then a tendency to a culture of very restrictive guardianship of public resources—typically, the culture of the client having to get the better of an argument with the provider in order to obtain the service.
751 Money, standards and accountability systems are not the whole answer. Indeed, the latter may be counterproductive if they induce resentment at the lack of trust and the stress they produce. What is missing, I think, is a process to move the underlying attitude and consequently behaviour and conduct. The deficit we see in the present culture is that it is not rights-based; there is no permeating concept of entitlement. Services are managed for their own purpose, not for the citizen's purpose. Obtaining an entitlement can still be an adversarial and insensitive process. There are many thousands who will not claim benefits because it is humiliating.
This is a sorry state of affairs in the world's first modern welfare state. A most interesting book on the relation between respect and inequality by the sociologist Richard Sennett sees some of the cause as the difficulty in a meritocracy for,the strong to practise respect towards those destined to remain weak".He locates the manifestation of this particularly in the social services. Julian Le Grand, professor of social policy at the LSE, makes a complementary point when he says that, in the context of the monopoly power of the providers of public services,there seems little respect; instead there is deference and resignation on one side, and indifference and condescension on the other".We need, he says, public policies,that employ mechanisms which encourage respect for users".I would add that our libertarian preference for equality of opportunity rather than equality of outcome means that we must enshrine respect as a public value. A culture of human rights is the safest route to that end.
Why is it the safest? Primarily, in my opinion, because its basic text—the Human Rights Act—provides a framework for balancing conflicting rights. It can help public authorities—say, residential care homes—to make decisions where a patient's rights infringe those of the carer. It can help to define how far a right to confidentiality should go when there is an allegation of sexual abuse, or how far a disruptive pupil may interfere with the right to education of other pupils. Of particular importance, its internationally accepted provenance makes it the surest way of reaching agreed social norms in a multicultural society.
The culture of human rights is therefore inextricably also a culture of responsibilities. When someone I as a public servant deal with has a right to peaceful enjoyment of their possessions, I have a responsibility to not impair their enjoyment or to let others do so. Human rights culture does not protect only the rights of the vulnerable. It also produces socially responsible behaviour and thus social cohesion.
Most of the authorities we examined, however, did not see human rights proactively as helping them to do their jobs better. The outstanding exception is the Audit 752 Commission. whose recent publication, Human rights: Improving public service delivery, picks out the point that human rights can bring benefits to the service users. But the common approach was almost uniformly defensive, to check that the body was covered against legal challenge.
Law suits are only the last resort in answer to the violations of human rights I have instanced. The then Lord Chancellor, my noble and learned friend Lord Irvine of Lairg, whom I am very pleased to see in his place, said to us in evidence that an indicator of a human rights culture was,arriving at a state of affairs not where cases have multiplied but where cases are less frequent because public institutions have put their own houses in order".If amelioration is left to the courts it will be victim-led, patchy and reactive, as well as expensive for the public authority at fault and hence the taxpayer. Cultural change needs promotion. It needs a champion, as the noble Baroness, Lady Prashar, said, with sufficient resources and enough powers to make it listened to.
As the noble Lord, Lord Lester, said, an independent human rights and equality commission is necessary for that task. It could promote understanding of a non-legal response to human rights issues and an anti-litigious culture, including alternative dispute resolution. It could offer guidance. It could disseminate good practice. It could open debate on conflicts of rights. It could campaign. But if all this is to have bite, it needs teeth, as the noble Lord, Lord Lester, said. It needs, essentially, to be able to carry out free and fearless investigations of human rights problems, so as to know what is actually happening on the ground, to alert public opinion and to set its priorities for promotion and guidance accordingly. That is why, as the noble Baroness, Lady Prashar. said, it should be answerable to Parliament rather than a department of state, and why it should have the powers to summon people and their documents.
Some human rights commissions which we visited in other countries had also pursued individual cases, but there was a persuasive general feeling that a commission became bogged down if it had also this duty, so that it was side-tracked from a more strategic role of investigating generic problems and promoting change.
There is one area of democratic deficit where I see a role for a commission. As a parliament we scrutinise European legislative proposals, perhaps not enough, but we do not subject proposed international instruments to any kind of scrutiny at all. Our governments, of whatever party, sign in our name treaties, covenants, conventions put forward by the United Nations, by the OECD, by the Council of Europe. They negotiate optional protocols to these instruments exclusively within the executive. A human rights and equality commission could inform itself of these human rights proposals, or of human rights aspects of any proposal, and publish opinions or otherwise draw Parliament's attention to the issues; and, of course, it could play a major role in examining UK compliance with such instruments.
753 The relationship of a commission with democracy is inherently positive. When Mary Robinson gave evidence to our committee, she characterised the advantages of independent national human rights institutions in this way:First of all, they supplement the basic institutions of democracy. because they are working with governments; they report to parliament; they are working with civil society … they build bridges between government and civil society".Thus a commission could assist the re-engagement of people with the political process as it took part in public decision-making about conflicts of interest and encourage social cohesion by so doing.
Finally, much will he gained by having an equality and human rights commission combined. First of all, equality is one of the key human rights. It makes no sense to hive it off—and it could imperil its central role in human rights by making it the province only of those disadvantaged by unequal treatment. Human rights is for everybody and equality is as important to the majority as to minorities if we are to have a human rights culture which instils respect for the dignity and worth of the human person. Then there are cross-cutting issues of rights which compound different kinds of unequal treatment with other human rights considerations. Or there are abuses, such as domestic violence, with which the equality commissions cannot deal but which nevertheless have an equality dimension. And there are important practical considerations. We are talking about improving the performance of the public services. Is it not better to have one organisation issuing guidance rather than the present multiplicity of separate guidance, some of it even inconsistent, as the noble Lord, Lord Lester, persuasively set out?
We have the chance of developing an institution which could transform our public service culture. I applaud the Government for seizing the opportunity and for setting up the task force and I hope that organisations and individuals will engage in the consultative process to create the right structure. I commend our report to the House.
§ 11.54 a.m.
§ Baroness Stern
My Lords, I am grateful to my noble friend Lady Prashar for initiating this debate, especially for going ahead with it with a broken arm and a damaged knee. Since the Joint Select Committee on Human Rights started producing reports I have become increasingly filled with admiration for its work. With the passing of the Human Rights Act a high point was reached in the British human rights environment. Since then it has sadly become a bit of a desert. The reports of the Joint Select Committee have been like flowers in that desert and they are all very helpful in reminding us that we have a range of domestic and international human rights obligations and that our observance of them is indeed patchy.
In my contribution to this important debate on the shape and nature of a human rights commission I want to concentrate on questions of a human rights culture; how far we have one; how far we are lacking; and what the benefits are to individuals and to the staff in public 754 services, when there is a vibrant, accessible human rights culture. I am glad to be following the noble Baroness, Lady Whitaker, who made that case so powerfully, based on her wealth of experience. The more detailed questions on the establishment of an equality and human rights commission I shall leave to those people better qualified than me. I shall not discuss the high profile matters connected to the threat of terrorism, where this country's human rights obligations have been such a casualty, to the great dismay of our many friends and admirers around the world.
The most striking question regarding the situation in England and Wales from my perspective—the field of justice and human rights—is where is the ministry of justice? Noble Lords will be aware that when a raft of new countries joined our regional human rights body, the Council of Europe, after the collapse of the Soviet bloc, their move to democracy and the rule of law was assisted by the Council of Europe. It was a requirement that the management of the their prison system should be transferred from the Ministry of the Interior to the Ministry of Justice. Most countries did that. Russia did so in 1998 and it made an enormous difference to attitudes to the treatment of prisoners.
The Council of Europe felt it to be quite wrong that prisons should be under the same roof in administrative terms as ministry of the interior functions such as the police, border control, immigration and other security functions. Yet prison management in England and Wales is still run by the ministry of the interior, which we call the Home Office, because we do not have a ministry of justice, which is in itself a major difficulty in providing a human rights culture. In Scotland—and I declare an interest as the Convenor of the Scottish Consortium on Crime and Criminal Justice—there is a Minister for Justice and a Justice Department. No doubt, some interesting comparisons could be made.
I want to give just one example of the gross failure of human rights thinking to penetrate the walls of the Home Office and enter the consciousness of those who work there. I am thinking of the Government's response to the excellent 10th report of the Joint Select Committee on the UN Convention on the Rights of the Child. The committee recommended removing all children under 18 from Prison Service custody into the care of people,whose outlook is firmly grounded in a culture of respect for children's human rights, devoted to rehabilitation and care".That is a very appropriate recommendation, even if the conditions in which children are held in prison are not all as bad as those described by our excellent Chief Inspector of Prisons, Anne Owers, who asks:What is the rationale and proportionality of routinely strip-searching children on arrival in prison, particularly for a population more likely than the average to have experienced abuse? And if a child resists, can you justify him or her being held down by adults, in painful wristlocks, and forcibly undressed?".In its report on the UN Convention on the Rights of the Child, the Joint Select Committee does not say of incarcerated children under 18: "Let them all out"; it does not say: "Send them on Caribbean cruises"; it simply says that, when children are locked up, they 755 should be locked up in an environment devoted to rehabilitation and care and where children's rights are respected.
The Government's reply to that recommendation is deeply shocking and will be read with disbelief by people the world over concerned with the rights of children. I believe we must assume that these reports are read widely around the world because of the high international reputation of the members of the Joint Committee. The Government say that they do not accept the recommendation because:Children who are in custody are not just children".So, one must ask, what are they? Are they monsters or demons? They are, the reply says, criminals. But the drafters of the Convention on the Rights of the Child knew that children could he criminals and that some children would commit acts against the law. That is why they included in the convention specific articles about how such children should be treated. When children are children, they are children, even if they have stolen a mobile phone on the street or burgled a house. The fact that the sentence,Children who are in custody are not just children",could be drafted by a public official and could get through the various sieves that such papers go through shows a profound lack of human rights awareness throughout the system. We urgently need a human rights commission to start the process of sensitisation and training. We also need it urgently to support ordinary members of the public who feel that they have been deeply wronged by the state.
The House may have heard of Joseph Scholes, a boy aged 16 years and one month, who committed suicide in Stoke Heath young offender institution at the beginning of a two-year sentence for involvement in stealing mobile phones. That sentence was given to him in spite of information provided to the court by many professionals about his very disturbed condition, his attempted suicide and his history of seriously harming himself. He cut his face 30 times, and there was so much blood that the walls of his room in the children's home where he lived had to be completely repainted.
I was privileged to meet his mother at an event, attended by a number of Members of this House. to call for a public inquiry into Joseph's death. In talking to his mother, I realised again how deeply important a human rights culture can be in helping people who feel that they have been wronged to understand the meaning of what has happened to them.
In coming to terms with her loss through contact with those involved in the case, Mrs Scholes has discovered the many human rights conventions that bind this country in which she lives. She has discovered the framework in which to understand her son's death: the Convention on the Rights of the Child, which states that, in dealing with children, the interests of the child should be paramount and that custody should be used as a last resort. She has discovered the duty of care that rests on any state which incarcerates a citizen. Ultimately, whatever conclusions are reached about 756 that case, she now knows that the world community has standards and that, according to those standards, what happened to her son should not have happened. Another reason that we need a human rights commission is so that citizens who feel wronged can find out what the obligations of the state are and what their rights are within that state.
I now wish to say a word about the great benefits that a human rights approach can bring to those in public service. The most helpful report of the British Institute of Human Rights, which is a small but admirable organisation with scant resources that achieves a great deal, showed how important it is for those responsible for the care of others to be required to carry out their duties within a human rights context.
I have had many opportunities, in many parts of the world, to be involved in programmes for training prison staff in human rights. Sometimes that opportunity has been due to the Human Rights Policy Department of the Foreign and Commonwealth Office. The work of the FCO in human rights is a great resource for other parts of government and one from which they could learn much.
Prison staff training can be a superficial exercise where the staff sit sulking, listening to people talk about the rights of prisoners and muttering, "What about the rights of the staff?". That is often a very fair point but, if it is done well, human rights training can be something else entirely. It can be a powerful explanation of the complexity and professionalism of the work of prison staff and of others who care for vulnerable people. It can help them to see that their job of treating well and with respect people who have greatly harmed society or who may be despised by society is an immensely exacting job requiring great skill. It is a high-status, professional job. Through that job, people express the values of society. Respecting the dignity and humanity of those who have done wrong, those who are vulnerable or those whom no one else cares about makes a contribution in itself to our level of civilisation and reaffirms the ethical framework within which we live. That is another argument for a human rights commission, which would work to inject a human rights approach into our public services.
I could not agree more with one conclusion of the sixth report:Such a culture of respect for human rights could help create a more humane society, a more responsive government and better public services. It could help to deepen and widen democracy. It is a goal worth striving for".I look forward to a powerful, well resourced, strategic and interventionist commission with many teeth being established as soon as possible.
§ 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 he 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 758 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 he 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".Paragraph 24 ends with the words:The Court's judgements form part of our law"—that is the Court of Human Rights—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".759 That is the other side of the coin. This is a debate and there should be some balance.
§ 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".That may perhaps be too gloomy a conclusion. At the time of the Human Rights Act some of us feared something different: that a flood of cases would be brought under the Act, most of which would have no real hope of success and which would simply overwhelm the courts, as happened in Canada, when their Charter of Rights and Freedoms was introduced. It was also feared that there would be a backlash against the Human Rights Act, instigated by the tabloids and based on decisions that offended populist views.
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.
760 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 he delivered".That, I believe, is all too true. My party —the Liberal Democrats—at our last party conference adopted a recommendation that all local authorities should appoint someone to act as a human rights officer. It would not necessarily be a full-time job and would normally be combined with other duties; but there should be someone in each local authority responsible for receiving information on human rights from the Department for Constitutional Affairs and the human rights commission—when it is created—and other bodies, and who ensures that the local authority not only complies with human rights legislation but actively promotes human rights.
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".We must have a human rights commission to give full effect to the Act.
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.
761 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 he 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.
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".Having introduced it, they had a duty to take matters further. As the report argues, such a culture is in danger of stalling if a human rights commission is not created to promote actively such a culture.
The Government obviously have a duty of leadership. As the report put it:If it wills the end, it must also will the means".Again, the point was made by the noble Lord, Lord Goodhart, and others, that whatever created must be given adequate resources.
The question must then be put to the Government of what sort of commission should he 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 763 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".The second paragraph states that its principal purpose must be to promote a human rights culture and,to promote human rights in public authorities in the delivery of services".I welcome that, and the statement in the third paragraph that:It would need to offer guidance to, and promote best practice in, public authorities in relation to human rights".The report continues: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".764 In passing, anything that keeps matters out of the hands of the lawyers and the courts is certainly to be welcomed.
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".I hope that it would not usurp the rights of the courts, because in the end, it must be for the courts themselves to determine the case, but if the committee is merely envisaging the commission acting,as a friend of the court or as a third party intervener",that may be desirable.
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 765 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 766 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".I shall read one further quote, part of which was cited by the noble Baroness, Lady Stern, to emphasise why the creation of such a culture matters: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".767 We agree strongly with that. The noble Lord, Lord Campbell of Alloway, referred to the contrary view expressed by Mr Richard Shepherd in his well-reasoned minority report. We prefer the reasoning of the majority on the Joint Committee; that is why we accepted their central conclusion.
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.
768 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.
§ Lord Lester of Herne Hill
My Lords. I am grateful to the noble and learned Lord for giving way. Just to be absolutely accurate, as I am sure the noble and learned Lord appreciates. our committee started a consultation on additional powers, but the Government then took their decision. As far as I can recall, we did not reach any concluding view, although we had representations on the additional powers.
§ Lord Falconer of Thoroton
My Lords, I agree with that, and I hope that there will be an opportunity in the process that is going on at the moment. It connects with the point that I was about to make. The noble Baroness, Lady Prashar, referred to the task force. It is worth saying what the terms of reference of the task force are. It is to meet over a period of 12 months to advise the Government on the role, functions, priorities and activities of the proposed Commission for Equality and Human Rights, in furtherance of the Government's statement of 30 October on future arrangements for equality institutions in Great Britain. It is also to provide such advice in preparation for a White Paper and to provide ongoing policy advice including assessment of responses to the White Paper on the range of issues described above.
Noble Lords know that the task force is in operation and has now met twice. Its proceedings and membership are available on the website of the Women and Equality Unit. We aim to publish the White Paper around April this year. As I said to the committee when I gave evidence, I would very much welcome the committee— everyone else as well, but particularly the committee—staying close to what the task force is doing, in order to deal with issues about, for example, powers, and the precise nature of the rights to be covered, so that that can be included in the White Paper.
Having regard to the time, it would not be right for me to say anything more, save to say how grateful we are for what the report said, and that we have acted on it. There is a long way to go, but I hope that we have demonstrated our continuing commitment to the Human Rights Act 1998 and to the development of a human rights culture.
§ 12.51 p.m.
§ Baroness Prashar
My Lords, I begin by thanking all noble Lords who have contributed to this stimulating and positive debate. I am also pleased that there has been such a positive response from the noble and learned Lord the Lord Chancellor. It is important to register that the consultation is ongoing, and that the task force will undertake its work. Therefore, the debate must go on. As the noble Lord, Lord Lester of Herne Hill, said, we are consulting on two or three of the issues in terms of the powers, so it is important that those deliberations continue. I see this report as the start of a dialogue and a discussion, and I hope that we will get a commission that has teeth and will be effective. It would be a great pity if we got a commission that was pragmatic and did not really have an impact.
One could say that the noble Lord, Lord Lester of Herne Hill, the noble Baroness, Lady Whitaker, and I, have a vested interest as we were members of the committee, but I found the contribution by my noble friend Lady Stern compelling, because she was reflecting back to us what we had said. The case was strongly made why there is a need to create a respectful culture of human rights. I am mindful of the dissenting voices, which are fully recorded in the report, but we also took the view, as the Government have, that a commission is needed with some urgency. I hope that in the course of the work of the task force we will begin to generate a climate where public authorities and staff are preparing for such a culture and not just waiting for the commission to be established. I commend this Motion to the House.
§ On Question, Motion agreed to.