Equalities and Human Rights Committee

Meeting date: Thursday, November 30, 2017

Official Report 590KB pdf

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Human Rights and the Scottish Parliament

Good morning and welcome to the 29th meeting in 2017 of the Equalities and Human Rights Committee. I have received apologies from our convener, Christina McKelvie, and substitute member, Linda Fabiani.

Agenda item 1 is an evidence session on the committee’s forthcoming inquiry, in which we will examine how the Scottish Parliament should scrutinise and uphold human rights. We are very pleased to be joined this morning, via videoconference link, by Murray Hunt, who is director of the Birmingham centre for the rule of law. Murray was formerly the legal adviser to the United Kingdom Parliament’s Joint Committee on Human Rights and is a visiting professor at the University of Oxford. He is giving evidence today because of his extensive practical knowledge of and research experience in dealing with rule-of-law issues, nationally and internationally, especially in the context of the role of Parliaments.

Welcome, Murray. I will start with a soft opening question. What is your view of the current human rights landscape in Scotland, particularly in the context of Brexit? How can the Scottish Parliament, through the committee and beyond, act better as the guarantor of human rights in Scotland, particularly in the context of that landscape?

I thank the committee for the opportunity to give evidence. I make one very small correction for the record. I am director of the Bingham centre for the rule of law, not the Birmingham centre for the rule of law.

That was my mistake, sorry.

The centre is named after Tom Bingham, who is very well known and gave a fantastically accessible account of the rule of law and what it means as a practical concept.

On your opening question, the current human rights landscape in Scotland, as in many places, causes concern to those who are concerned with the protection and promotion of human rights. We live in an age when many threats and challenges are posed to the rule of law and human rights. There is concern about the rollback of current levels of legal protections for human rights. There is a general retreat from international obligations; that seems to be a worldwide phenomenon. There is a rather alarming attack on many of the legal institutions, in particular, on which we have relied for many years to protect human rights and the rule of law. The general context is broadly one of concern for human rights protections.

That is why the committee’s inquiry is so important. It is extremely important to focus on what the role of Parliaments—and elected politicians, in particular—is in relation to the protection and promotion of human rights. One of the most potent responses to the democratic critique of our institutions that protect human rights is to focus on what the role of politicians should be and try to embed in the political process proper consideration of human rights matters. Politicians can then begin to take more ownership of the concepts in human rights treaties and protections.

I know that the committee’s next panel of witnesses is going to consider human rights in the immediate context of Brexit in more detail, in terms of its implications for equality and human rights. That context raises many questions and possible concerns about whether Brexit endangers the human rights protections that currently exist. It is extremely important to think about how Parliaments can take a more active role in protecting and promoting human rights.

On your other question, I have read some very interesting papers in advance of this session. In particular, the Scottish Human Rights Commission’s submission to the commission on parliamentary reform contains a number of concrete suggestions and recommendations on how the Scottish Parliament could respond to the challenge and take a more active role in protecting and promoting human rights. I am sure that in the committee’s questions we will come to some of the specific things that I want to talk about.

You are asking exactly the right question. There is a great opportunity for the Scottish Parliament to lead by example, and I am very encouraged by the commission on parliamentary reform’s indication of the significance that it places on the issue and that the committee is taking it up in its inquiry.

Thank you for that very comprehensive answer. Since the start of this parliamentary session, the committee has recognised how big and moveable a feast the human rights agenda is. If we are to act as guarantors of human rights, we have to have a weather eye on all of that agenda.

In the early days of the committee, we looked at the fact that there are some 700 concluding observations on our progress, or lack thereof, against several human rights treaties to which we are party. While we recognise that there is a potential roadmap for the work of the committee and the wider Parliament, in terms of effecting change that improves progress under those treaties, it is a bit difficult to know where to start and how to do so with efficacy—particularly as those concluding observations can be very big or deal with some of the minutiae of the treaties. Do you have any recommendations as to how we grapple with the issue and where to begin?

That is an excellent and very important question. I worked for 13 years as the legal adviser to the Joint Committee on Human Rights in the Westminster Parliament. Even by the end of that time, I was still grappling with that problem. The sheer number of recommendations, judgments and substantive considerations from a wide range of international instruments that parliamentarians need to grapple with is often overwhelming, even to those with human rights expertise.

It is very important to try to approach that rather overwhelming landscape through a very clear framework. That is one of the reasons why it is so important that there is a specialised human rights committee in every Parliament that can take the lead in mapping out that framework and help the less-specialised committees to identify their points of engagement with that international human rights framework. I am sure that we will explore in more detail the importance of mainstreaming and how that can be combined with a specialised human rights committee. The role of the specialised human rights committee is to make sense of the complexity of the rather overwhelming landscape by providing a very clearly understandable framework for other parliamentarians in its Parliament.

The best way in is possibly to take the universal periodic review process because in the current cycle the UK is particularly well situated. We have had just over 200 recommendations from the United Nations Human Rights Council to the UK as a result of the UK’s third universal periodic review. That is an overarching review process that has generated a number of recommendations that cut across many different areas. That is the entry point that I would recommend for the committee. The committee could identify the recommendations that it can best take forward, identify those that other committees are perhaps better placed to take forward in substantive policy areas, and identify ways in which other committees, as well as your own, can engage with the follow-up process. The framework of the UPR recommendations will lead to more substantive engagement with the more detailed concluding observations of specific treaties. I would recommend that as being the window through which to approach the task that you rightly say can be rather overwhelming.

That is very helpful.

Good morning. The Scottish Parliament is a relatively new Parliament and the committee is relatively new in the grand scheme of things. Given your vast experience of working in other jurisdictions and Parliaments, do you have any suggestions of best practice or things that other Parliaments have learned that would perhaps be pertinent to us, so that we do not go through some of the teething problems that other Parliaments have gone through?

Fortunately, there is an increasing number of collections of good practice. A number of international bodies, such as the Inter-Parliamentary Union and the Commonwealth, provide a very good service by collecting examples of good practice from around the world. The number of examples is steadily growing, as more Parliaments realise that they have an important role to play.

There are some useful—and some soon-to-be-published—collections of good practice. In the draft principles and guidelines on the role of Parliaments in relating to the rule of law and human rights, which the Scottish Human Rights Commission referred to in its submission to the commission on parliamentary reform, I tried to distil from my experience of working with Parliaments the main crucial features of best practice—without being prescriptive—to try to help Parliaments that want to do that work.

One of the most important headlines in respect of those principles and guidelines is to ensure that a specialised human rights committee, which is absolutely central and necessary, is not an obstacle to the mainstreaming of human rights throughout the Parliament. There is a danger that such a committee might encourage others in the Parliament to think that they can leave all that to the members of the specialised committee because they are the experts and they know what they are doing. The way around that is for the specialised committee to regard itself as having a special responsibility for mainstreaming so that, as well as dealing with certain issues that only it is best placed to deal with because of its expertise, it assumes responsibility for identifying opportunities for other committees to engage with the international human rights framework.

For example, if there is a recommendation in the latest UPR review that concerns the criminal justice system, that may be best dealt with in the Scottish Parliament by the Justice Committee. However, for that committee to engage with the recommendation, the Equalities and Human Rights Committee and the expertise at its disposal may assist it by identifying the point of engagement for the Justice Committee and proactively trying to encourage that engagement. A human rights committee also has an important role as an engine of mainstreaming and in helping other committees and the Parliament as a whole to identify those points of engagement.

To cultivate that as a best practice—[Interruption.]

Murray, forgive us—we lost you there.

No problem.

Do you want to dial back 30 seconds and continue?

I had just finished saying that the important role of the human rights committee is to be an engine of mainstreaming. That requires the committee to be proactive in its relations with other committees and with others in the Parliament. I know from experience that that can be a slightly delicate matter for a committee—there are always concerns about treading on the toes of other committees. However, being proactive is necessary to cultivate relationships.

It also requires the expertise that is available to the committee, including human rights law and policy expertise, to be proactively available and deployable to other committees, to help them identify opportunities for engagement. That is absolutely crucial.

Thank you for that comprehensive and helpful response. A lot of heads were nodding around the table. I will follow up with a specific example and perhaps you could advise us on best practice. Is it more appropriate that on a number of portfolio issues, such as health, justice, housing and education, the Equalities and Human Rights Committee should hold the relevant—[Interruption.] The screen has gone blank, convener.

I suspend the meeting.

09:44 Meeting suspended.  

09:45 On resuming—  

We are back.

I will make my question brief. Is it better for this committee to hold Government ministers and, by default, Government departments, to account for other committees’ portfolios, or would it be better for other committees to focus on the equalities repercussions of policy decisions that those portfolio holders make? I hope that that question makes sense. Is it better for us to request that those committees do that, with us advising them on the best way in which to do it, or is it more productive for our committee to have the ministers for justice, housing, education, health and so on tell us about equalities mainstreaming within their portfolios?

The ideal end state for me would be that human rights are so mainstreamed across everything that the Parliament does that all those committees do that job with their portfolio ministers. However, that will not happen overnight.

Especially because human rights was added to your committee’s remit relatively recently, there will need to be a transitional phase in which it will be necessary to take things as they come, to a certain extent, but with that end state as the ultimate goal. That may mean that, in certain areas, there may be great overlap between your portfolio and the portfolio of, say, the Justice Committee—for example, on a matter such as prisoner voting. There may be issues in which the interest of the Equalities and Human Rights Committee is so great that it is appropriate for you to specialise and take the lead in the first instance. However, ideally, such issues will eventually be dealt with by the relevant subject committees.

I envisage something of a transitional period in which it will be a matter of feeling your way as you go, on a case-by-case basis. It will also be necessary to cultivate a relationship with other committees whereby that is not seen as a territorial conflict. The way to that will be eased if your expertise is deployable across committees, so that there are no rival claims on that expertise.

That is good to hear.

Good morning, Mr Hunt. My question follows on quite nicely from Jamie Greene’s question. Across the Parliament, individual committees have rapporteurs who look at particular issues. For example, we have European rapporteurs. Do you think that it would be beneficial to have rapporteurs in individual committees whose remit specifically included human rights, so that they could feed directly back to the Equalities and Human Rights Committee?

Yes, I do—very much so. The idea of human rights rapporteurs is an excellent one. I was pleased to see that proposal in the report of the commission on parliamentary reform. It would help the mainstreaming effort if there was a point of contact on human rights issues within the membership of another committee. That would be an important institutional provision for making mainstreaming possible. It may not be necessary to have such a rapporteur on every committee, but, on the most relevant committees, in whose portfolios human rights issues come up, a human rights rapporteur would be of great benefit.

It would also be useful if, as well as a member of the relevant committee, a member of its support staff was a point of contact on human rights. I would encourage collaboration and sharing of information between points of contact at the staff level as well as at the member level.

That is useful. If we have rapporteurs on other committees, will there be a need for some kind of training, given the breadth and complexity of human rights legislation? As we go ahead with Brexit and the implications for human rights in this country become more advanced, will there be a need for training for people who deal with human rights?

Yes, training is always extremely difficult for members, because they are so busy. Having worked for many years with members of the Westminster Parliament, I know that the claims on all your time are far more than there are hours in the week, so abstract training always poses a difficulty for members. There is a constant problem everywhere in getting members to attend abstract training.

However, I think that training is very necessary. I am a great believer in training on the job. I think that it is possible, especially with proactive secretariats, to combine an element of training with what members do as they go along and carry out their role. That makes it much easier for them to find the time to do the training. A self-conscious and reflective approach to, for example, developing the role of rapporteur, with support from staff who have done the training—it is much easier for staff to find the time to do training—is probably the way to do it.

In the Westminster Parliament, attempts that we have made to provide training for members have, generally speaking, not reached very many of them. In fact, a much more effective way of—training is probably the wrong word—spreading understanding of concepts such as the rule of law has been through the activity of all-party parliamentary groups. I know that there are many cross-party groups in the Scottish Parliament, too. I think that organising events through all-party parliamentary or cross-party groups on very topical issues, which are approached in those meetings through a human rights or a rule of law framework, is a very good way of engaging members and getting them to see things through the different lens that that framework gives them. I am more in favour of that sort of training than training courses at work, which it is unrealistic to expect members to engage with.

Good morning, Mr Hunt. In section 3.1 of its submission to the commission on parliamentary reform, the Scottish Human Rights Commission said that there are “limitations” in the Scotland Act 1998

“in terms of ensuring that the Parliament is able to fulfil its human rights mandate to protect, respect and fulfil human rights throughout all of the Parliament’s functions.”

Could you explain that to us a bit more? Do you have any advice on how we can overcome those limitations, if they are set down in legislation?

That is a very interesting question. I have been interested in and curious about whether, under the devolution legislation, the way in which the European convention on human rights compatibility question needs to be addressed prior to a bill’s introduction is an obstacle to parliamentary consideration and discussion of whether a bill is actually compatible with the ECHR. I do not think that there is an obstacle in the legislation, so I do not think that we need to change anything in the Scotland Act 1998, but we need to look carefully at the practices to see whether there is a way round what could, in practice, be an obstacle.

In that part of its submission, the Scottish Human Rights Commission has suggested that the legal advice that the Presiding Officer receives before a bill is introduced be made public, and that that would facilitate more consideration by the Parliament of the human rights compatibility of the bill. That is one of the few points in the submission with which I do not agree. I do not think that it is necessary for that legal advice to be made public in order to facilitate more parliamentary scrutiny and debate.

For me, the crucial document is the policy memorandum, which the promoter of the bill has to introduce. I will explain why. The way in which the Joint Committee on Human Rights in the Westminster Parliament approached the question was not to ask for the minister’s legal advice before it signed the statement of compatibility—under section 19 of the Human Rights Act 1998—with ECHR but, rather, to ask for a fuller explanation, first in the accompanying explanatory notes, of why the minister thought that the bill was compatible.

Our starting point at Westminster was that the Government is entitled to legal professional privilege. That is the necessary starting point, which means that we do not expect to see legal advice as such. However, over time, we have persuaded Government departments that it is in their interests to show the working behind the section 19 statement of compatibility. In the Westminster Parliament, we have now reached the point where we receive detailed human rights memoranda, which are based on the advice that goes to ministers that enables them to sign section 19 statements of compatibility. Such memoranda will have taken out anything that is legally privileged but will nevertheless contain a great deal of legal analysis. Departments have realised that it is in their interests to put that in the public domain, partly to avoid too many pesky questions from the Joint Committee on Human Rights about things that they have already considered. We now receive very extensive human rights memoranda that address the ECHR questions; in some cases, they also consider issues to do with the United Nations Convention on the Rights of the Child and other international instruments.

The way forward is to concentrate not on the legal advice that the Presiding Officer receives but on the policy memorandum. I have seen a reference somewhere to the policy memorandum generally containing only one to seven paragraphs explaining the human rights compatibility of the bill. Over time, the policy memorandum could be expanded, if the right questions were asked of the promoter of the bill, with a template of a human rights memorandum. That would be the crucial document that would enable and facilitate parliamentary scrutiny and debate. For me, the way forward would be to work out how to make the policy memorandum address in more detail the human rights compatibility of the bill.

Okay. Thank you for that.

As you mentioned earlier, this is the first time that human rights have been given a place on a committee in the Scottish Parliament, and we are now the Equalities and Human Rights Committee. Do you see there being a place for a committee that would look only at human rights, or do you think that the area is compatible with equalities and that we should keep things as they are?

The area of human rights is perfectly compatible with equalities. If a specialised human rights committee has to incorporate another subject matter, it seems to me that equalities is the best one.

In response to your question, the abstract answer—if we had a blank sheet of paper for every Parliament—would be that an individual specialised human rights committee would be the ideal. However, every Parliament is, of course, different and Parliaments have different sizes and different resources. Member time is at a premium in smaller Parliaments. Therefore, we have to be realistic about it and not necessarily say that one size fits all. Combining human rights with equalities in one portfolio is a perfectly good way of doing things, particularly if the committee takes seriously what I described earlier as the engine of mainstreaming role and is proactive in encouraging and helping other committees to engage on human rights issues.

Thank you.

You mentioned the Scottish Human Rights Commission’s submission to the commission on parliamentary reform. In recommendation 20, it suggested that the Parliament undertake

“systematic scrutiny of the Scottish Government’s response to court judgments ... concerning human rights”.

Are you aware of Parliaments that do that as a matter of course? How effective is it, and how big a job is it? Even though my background is in human rights, I am not aware of how many judgments there are on the subject. If we were to undertake that scrutiny, how arduous a task would it be?

That is a very good question. For me, it is an extremely important part of the task of a human rights committee—and of that of Parliament. As I said at the outset, one of the problems that we face is concern that Parliaments are being bypassed by courts and that courts are having the final say on human rights matters, whereas, in fact, most human rights judgments leave an enormous amount of space for political decision making, choice and discretion after the judgment. There are very few judgments that prescribe a particular outcome. Some do, but very few do in the human rights context.

Following a judgment, the role of Parliament is very important. It is also very important—not only for parliamentarians but for the public—to understand that the ball then goes back to the parliamentary court and that there is still a lot to be decided, so it is very important that Parliaments get involved in what should happen next.

The number of judgments that require parliamentary involvement is relatively manageable. It is probably impossible to put a number on it in any one system, but it is certainly manageable. In the first instance, the work could be done by the specialised human rights committee, which, over time, could develop a template for identifying the points that the Parliament needs to address. It could send those points to other relevant committees that might be better placed to question their ministers about why they were not doing this or that in response to the judgment.

There are some other Parliaments that do that. The Parliamentary Assembly of the Council of Europe has been strong in recommending that the member states of the Council of Europe develop mechanisms in their national Parliaments to follow up judgments of the Strasbourg court, and there are now some examples, which the parliamentary assembly has gathered in some of its reports, of mechanisms being established in some of the 47 Council of Europe member states to follow up on Strasbourg court judgments.

For me, that is one—[Interruption.]

I suspend the evidence session until we can re-establish the connection.

10:00 Meeting suspended.  

10:00 On resuming—  

Murray, we lost you when you were starting to tell us about how the Strasbourg court judgments are applied.

There are now mechanisms in some member states of the Council of Europe specifically for following up Strasbourg court judgments, and there are good examples of Parliaments beginning to do that. For me, Strasbourg court judgments are one important source that human rights committees need to have regard to, but judgments of national courts, too, often raise questions that Parliaments need to get involved in. Therefore, national judgments on human rights are also very important.

This is all of a piece with what your first question concerned, which was recommendations from international human rights treaty bodies. What should be the response to those recommendations? Court judgments are particularly important because they are legally binding on the state, and Parliaments have an important role in deciding how to respond to those judgments. Therefore, they are at the top of the priority list. However, the question that that raises is similar to the question of how Parliaments should get involved following treaty body recommendations, special rapporteur recommendations or UPR recommendations. They are all really of a piece, and a solution can be fashioned that deals with all those different sources of international human rights laws that the Parliament needs to grapple with.

I remind members of my interest in the matter, having been a past convener of the Scottish Alliance for Children’s Rights and having sat on the leadership panel for Scotland’s national action plan on human rights.

One of the reasons why we have few court judgments to respond to is that there is still an absence of access to justice around human rights because many of the treaties are not incorporated into Scots law. We are signatories in principle to the general idea of the treaties, but we are not actually legislating to give people access to justice through the courts.

Do you think that incorporation of, for example, the United Nations Convention on the Rights of the Child would be a way of sweeping up all our outstanding obligations that the periodic review identifies? Would that give us appropriate access to justice, or is that too simplistic?

The incorporation question is always a difficult one. Because the political reality has been, for many years, that there is a reluctance at Westminster to incorporate further international human rights treaties, I have been used to trying to find ways of making them more effective and instantiating them more into policy making and decision making without their being incorporated.

There is a tendency to think that incorporation would cure everything overnight, which it would not do. There are undoubtedly some provisions of the UN Convention on the Rights of the Child that do not immediately lend themselves to enforceable legal remedies, so I would shy away from seeing incorporation as an immediate panacea. Nevertheless, there are a huge number of ways in which Parliament is getting more involved in implementing what is in the treaties, which take us almost as far down the road as incorporation would take us.

Taking the UN Convention on the Rights of the Child as an example, I know that Scotland has legislation that imposes a duty on ministers to have regard to the convention, to keep policy under review and so on. That is a very important way of giving Parliament a role in scrutinising what the Government is doing to implement some of those positive obligations. We do not have that in England and Wales—or, I should say, we do not have it in England; Wales has its own thing. In fact, the Joint Committee on Human Rights used your model and the Welsh model to recommend an amendment to the Children and Social Work Bill in the last Parliament that imposed the same duty on ministers in order to facilitate parliamentary scrutiny of what they were doing. Many treaties such as the UNCRC require active steps to be implemented, and the duty in the Children and Young People (Scotland) Act 2014 represents a very important way in which Parliament can help to do that and brings into the political process serious scrutiny of what the state has signed up to in those international treaties.

My energies will be spent on trying to enhance Parliament’s role in implementing the obligations that have been assumed by the state in those treaties instead of allowing incorporation to be thought of as a quick and easy answer. After all, incorporation might enhance legal remedies to some extent, but it does not solve the problem of how we ensure greater public participation in such issues.

So it is just an arrow in the quiver, as it were. Thank you for that.

If no one has any other follow-up questions, I will move on to the issue of budgetary scrutiny. Every year, the committee is tasked with looking at the draft Scottish budget—or, I should say, work on the draft Scottish budget—through an equalities and human rights lens. We do that quite well, and we have some very in-depth discussions and submissions of evidence to that end. However, the committee has only newly taken on human rights responsibilities, and its focus up to now has been predominantly equalities based. What would be your recommendations on looking at a draft budget through a human rights lens?

That is a very important question, but I am afraid that I have no easy answer, as I have very little experience of it. The Westminster Parliament has simply not gone down that road. There is an urgent need to address the question of how Parliaments scrutinise budgets through a human rights lens. In some of the papers that I read before today’s meeting, I saw that the issue might be the subject of a further inquiry by your committee, and I think that it is certainly worthy of detailed consideration.

Some very good academic work has been done on budget analysis through a human rights lens. At the Westminster Parliament, I tried to interest the secretariat of the Treasury Committee in incorporating a human rights dimension to budget scrutiny, but I found it very difficult to persuade it that the issue was its concern and part of its business. Mainstreaming often comes up against obstacles such as how human rights are relevant to the Treasury Committee’s scrutiny of the budget.

I therefore have no easy answer to your question, but I think that the issue is very important and would be a good subject for a further inquiry. Incorporating it into the work of those committees that carry out detailed scrutiny of the budget would be the way forward. I imagine that your committee is expert at many things, but it will not be expert at scrutinising budgets, so this sort of work really needs to be incorporated into the work of the committees that do that scrutiny. That is probably the biggest challenge as far as mainstreaming is concerned, because people often do not recognise the relevance of human rights in that respect.

Many of the human rights obligations in the unincorporated treaties impose positive obligations on the state to do certain things, and many of the recommendations of the treaty bodies and of the Human Rights Council in the UPR require the state to spend some money. We have to face up to the fact that the state has assumed a lot of obligations, some of which are quite expensive, and we need to work out how we make sure that such things do not go unscrutinised in our Parliaments.

Thank you for that. The clerks have asked me to ask you for a note of the academic work on budget scrutiny that you referred to. You can tell us about that now, or you can email the clerks after the meeting.

Of course. I can easily send that information to the clerks.

That would be very welcome. I will move on to the issues that you have just explored around mainstreaming. The baseline that we are at in the Scottish Parliament is that every piece of legislation has an equality impact assessment and, more recently, as a result of part 1 of the Children and Young People (Scotland) Act 2014, a children’s rights impact assessment. That is really the limit of what we are doing now.

This committee is in the business of future proofing human rights so that if less progressive Parliaments emerge in the future, we have human rights built into the fabric. However, it is fair to say that I have found—from when I was a lobbyist trying to influence the processes and since then, as a parliamentarian—that sometimes, a degree of lip service is paid to those assessments and they are a tick-box exercise. I accept that some legislation is not really relevant to human rights, but those assessments still need to be carried out.

How do we improve or add to the process? How do we make it a living, breathing function of the Parliament, so that whether it is at a Government level or through the institutions of this Parliament, the process is meaningful?

Again, that is a very pertinent question. The trouble with impact assessments is that without the necessary bureaucratic will and commitment, they turn into tick-box exercises very readily and then are seen as just another pesky bureaucratic requirement that a decision maker has to go through.

The key is to work with the departments that are producing the bills to make sure that the consideration of human rights matters, human rights obligations, and relevant human rights standards is mainstreamed and embedded in their policy formation process at the earliest possible stage.

Impact assessment is one way of doing that. For me, it carries another risk as well as the bureaucratic tick-box exercise problem. It tends to make civil servants rather defensive, so that they think in terms of compliance and take a purely negative approach, asking, “Are we doing anything wrong here?” I would much prefer a more positive approach that looks not just at whether a bill will get caught out for doing something that is incompatible with human rights but at whether—as they often are—it is doing something positive to advance and promote human rights.

In my dealings with bill teams in Westminster, I have been keen to encourage them to think about not just impact assessment but opportunity assessment and to explain in their memoranda what opportunities are being taken in a bill to advance and promote human rights. Very often, the rationale for a piece of legislation includes a human rights-advancing rationale. Once we encourage civil servants to think in positive terms about how they are promoting human rights, their attitude changes. They tend to think less in terms of negative compliance and they engage much more proactively and positively with the human rights framework.

If we can encourage the promoters of bills, including Government departments, to frame each policy memorandum in a way that identifies the positive human rights benefits and advantages of a particular bill, as well as identifying possible problems, that gets us off first base.

The template for that sort of policy memorandum is a really crucial—[Interruption.]

We will suspend the meeting until we re-establish a connection.

10:13 Meeting suspended.  

10:14 On resuming—  

The connection is back, so just pick up where you left off.

It goes back to the importance of the policy memorandum. We need to build on impact assessment methodologies to see how they can incorporate opportunity identification for the promoters of bills, including Government departments. Doing that changes the whole framework in which human rights scrutiny takes place. It is particularly fitting in relation to Parliament’s role, of course. Parliament has a particular responsibility and it also has the capacity to set the legal framework and to follow up when a treaty obligation requires positive steps. Parliament can actually take the implementing measures.

Parliaments should be less interested in whether a bill interferes with human rights and more interested in whether it has missed an opportunity to advance human rights, or whether it has gone far enough in advancing human rights. If that is done through the UPR framework, the specialised human rights committee, with its understanding of all the recommendations, is well placed to identify—[Interruption.]

I suspend the meeting while we re-establish the connection.

10:15 Meeting suspended.  

10:15 On resuming—  

Thank you for sticking with us, Murray.

That is quite all right.

You were just finishing your remarks on the opportunity assessment, which we are all interested in as a proactive step that we could take. Please continue.

I was saying that I think that the specialised human rights committee is very well placed—if it is familiar with the wide range of recommendations that are contained in treaty body concluding observations, outstanding judgments and so on—to identify those opportunities. It can often work with Government departments that are introducing bills to encourage them to explain what they are trying to do in that framework. In my experience, bill teams often do not realise that a measure that is contained in a bill goes towards implementing a recommendation. Once that different way of approaching things is in place, it enables much better scrutiny and much better ministerial and departmental engagement with Parliament.

Fantastic. Thank you.

I share Alex Cole-Hamilton’s frustration with the lip service that is paid to equality impact assessments. Can we change equality impact assessments to make them more relevant? Should we use a standard format for carrying them out? Could we make changes?

The difficulty lies in the culture in the departments. That is why it is such a tricky issue. As long as the impact assessment is regarded as something that has to be done at the end of the process—[Interruption.]

I do not think that there is an easy answer. A cultural change is necessary, and, in a way, it is the Parliament’s role to bring about that cultural change by asking questions at the earliest stage of policy formation and making the promoters of legislation realise that such matters need to be addressed, because the answers need to be there. It is not a very satisfactory answer, but I think that change can be brought about only by Parliament doing its job and asking those questions.

That raises another point, which is the importance of Parliament and its committees engaging before bills are introduced. They should engage on the human rights issues that are raised in consultation papers and get involved at the very early stage of policy formation in all relevant areas in order to ask the right questions. The key thing for any human rights committee is to identify the right questions and to ask them in a public and transparent way. The earlier in the policy formation process that is done, the more we will get to an end state in which we do not have tick-box impact assessments. I am afraid that it is a long process, but it could certainly be accelerated by all committees taking the approach of asking those questions at the earliest possible stage.

Jamie Greene has a final quick question.

Your comments about the culture in the civil service were very interesting. You suggested that civil servants might take a defensive line. When we probe impact assessments or ask whether they have taken equalities and human rights into consideration in a policy decision and the application of that policy, they often adopt the defence mechanism of asking, “What have I done wrong?” or “Why are you asking me those questions?”

How do we achieve a culture shift from the top-down approach so that the ministers, cabinet secretaries, directorates, or directors of directorates instil within their departments a positive view that those policy decisions will be taken with equalities and human rights in mind at the beginning of the policy-making process rather than asking retrospectively at the end what they did not do? Do you have any experience of examples of other civil service departments, such as at Westminster, that have really taken this on board and achieved a massive culture shift in the department? How do we ensure that our Government ministers instil that same positivity?

I will come back to whether I think that there are any really good practice examples in the UK Government.

One of the crucial levers to achieving a cultural change is to persuade, in the first instance, civil servants and then, eventually, ministers. It is in the Government’s interests to encourage parliamentary debate about the human rights compatibility of legislation. That is little understood but there are signs that it is becoming understood.

Courts are increasingly influenced by the amount of democratic consideration of and debate about of laws before their enactment. Under the doctrine of the margin of appreciation in human rights law, that is clearly a consideration to which the Strasbourg court increasingly has regard, not as a purely procedural matter about whether a law has been discussed and debated, but on the correct basis that laws are likely to be better and more democratically defensible if the difficult balances that they strike have been properly debated in Parliaments.

I have found that the bill teams that are most engaging, encouraging and forthcoming with the information that they provide about the human rights compatibility of legislation are the ones that have understood that message. The best example that I can give is in relation to the Protection of Freedoms Bill, which was a Home Office bill that implemented the Strasbourg court judgment on Marper and the DNA database. There is a passage in the human rights memorandum for that bill that explicitly says that the Government recognises that, if the human rights compatibility of this solution is debated in Parliament, that is a positively good thing and something to be welcomed. That is based on the insight that subsidiarity means that courts respect properly taken democratic decisions when there has been proper consideration of human rights issues, not as a purely formal thing, but when it is clearly relevant.

Governments are beginning to realise that it is therefore in their interests to provide the information and detail of why they think something is compatible, to encourage parliamentary debate about it, and to respond to real concerns as they are raised. That is the biggest lever to the culture change that you describe.

On good practice, the Department for Education in Westminster is the best example of a department that has embraced explaining—in a positive sense—its legislation’s compatibility with international human rights law, including the UN Convention on the Rights of the Child. There are some good examples of human rights memoranda voluntarily provided by the Department for Education, in which they have explained why, in their view, the bill positively promotes children’s rights and—[Interruption.]

We will suspend briefly while we re-establish the connection.

10:24 Meeting suspended.  

10:24 On resuming—  

Murray, you are back. You were just concluding your answer to Jamie Greene.

The Department for Education is probably the best example and I can provide your clerks with some human rights memoranda that have come from the Department for Education that are good examples of positive engagement with the requirements of the UN Convention on the Rights of the Child. They explain the provisions in bills in terms of their furthering of recommendations in the UNCRC’s report and the UK’s implementation of some of the positive obligations in that treaty.

Great stuff. Unfortunately we are going to have to leave it there. I thank you for persevering with the technology; it has been difficult. I am grateful to our audiovisual guys for helping us along the way. I am sure that I speak for the rest of the committee when I thank Murray Hunt for his contribution this morning. It has been incredibly illuminating and it will help us to frame a view on how we proceed as the human rights guarantor in Parliament. I hope that this will be the beginning of a long and productive relationship. We would certainly like you to come and see us in person at the earliest opportunity.

I suspend the meeting for a short comfort break and I invite the next witnesses to take their seats.

10:25 Meeting suspended.  

10:30 On resuming—