Clause 7 - Guidance for criminal justice organisations on human rights standards

Justice (Northern Ireland) Bill [Lords] – in a Public Bill Committee at 10:30 am on 1st April 2004.

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Photo of Dominic Grieve Dominic Grieve Shadow Attorney General 10:30 am, 1st April 2004

I beg to move amendment No. 58, in

clause 7, page 4, line 30, leave out 'international'.

The clause provides for guidance for criminal justice organisations on human rights standards. I want to make it clear that I have nothing against providing such advice to such organisations. It is clear, from reading the clause, that the Human Rights Act 1998 has a particular role to play. However, it is bizarre that subsection (1) provides that when the Attorney-General for Northern Ireland issues the guidelines, the organisations' functions should be

''in a manner consistent with international human rights standards relevant to the criminal justice system.''

I have simply no idea what such standards may be. They are infinitely flexible, they may change, and they are not subject to any legislation passed by this Parliament: they are meaningless. The human rights standards that this Parliament has chosen to apply, before the incorporation of the Human Rights Act, could be referred to by reference to the human rights convention, to which we are a signatory, and must now be derived from the Act. I would hope that the Human Rights Act is seen to be compatible with nebulous international human rights standards. However, the insertion of the word ''international'' is meaningless. It is gobbledegook. That gobbledegook is emphasised in subsection (2), which states:

''In the exercise of its functions, such an organisation shall have regard to any guidance for the time being in operation under this section; but this does not affect the operation, in relation to any such organisation, of section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act in a way incompatible with a Convention right).''

So there we have it. Under the subsection, an international human rights standard would have to be disregarded if it was not compatible with section 6 of the Human Rights Act 1998, which is part of our law.

I do not know why the word ''international'' has been used, but I hope never to see it in a document of this sort again, because it is appalling drafting. I have no idea where it came from. I suspect that the right hon. Member for Upper Bann will say that this is the incorporation of yet another nebulous concept into a piece of legislation as a result of some sideline agreement between the Government and the SDLP or some other party to previous political discussions. I do not know, but whatever its origin, it should not be included in the clause.

The Minister will have to provide me with persuasive justification for the use of the word ''international''. I do not believe that he can, and I certainly intend to press for its deletion.

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office

There is always a danger that any mention of the word ''international'', possibly slightly less so than the word ''European'', is likely to excite the Opposition's interest. The hon. Gentleman will know that Governments of all parties have signed up to several international conventions that are mandatory and binding. We were bound by the European convention on human rights long before we introduced the Human Rights Act. We were, in fact, bound by 16 such standards listed by the criminal justice review research report, of which the European convention on human rights was but one. We signed up to several binding treaties, and to non-binding, declaratory and even advisory treaties. Signing up to such treaties has been ongoing practice to which Governments of all parties have subscribed.

The balance that the hon. Gentleman said was necessary is provided by the guidance issued by the Attorney-General described in other parts of the clause, which we will no doubt deal with in our debates on other amendments or on clause stand part. It does so precisely to avoid doubt and provide clarity for the courts.

We could have talked about human rights standards in general, but that could have created far

more ambiguity and led to organisations and individuals claiming a wide body of opinion to support their position. The word ''international'' is used to make it clear that the document should consider non-domestic human rights standards and provide the mechanism by which they are provided to the courts. In many ways, despite the possible knee-jerk reaction to certain words, that answers the hon. Gentleman's argument.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

I hope that the Minister will accept that I have, as a Liberal, stronger internationalist credentials than some hon. Members with whom I must share the Opposition Benches. However, I have some sympathy for the arguments advanced by the hon. Member for Beaconsfield, whether or not they are knee-jerk reactions. If the intention is to issue guidance on various international treaties, conventions and whatever else to which we are party, surely we should declare it. The elegant way of doing so would be to insert a schedule that listed them. That schedule could, perhaps, be updated from time to time by statutory instrument, which is the Government's chosen way of amending primary legislation these days. That would be better than endlessly using the phrase ''international human rights standards'', as the hon. Gentleman said. If the Government's intentions are what the Minister says they are, why does he not seek for them to be reflected in the Bill?

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

I support the hon. Gentleman's comments, which were apposite. The phrase

''international human rights standards relevant to the criminal justice system''

is far too vague. The problem is not only with the word ''international'' but with the whole phrase.

The Minister referred to the existence of a number of treaties, some of which may be binding on the United Kingdom. However, other things are hawked around as though they were international human rights standards. The phrase ''international human rights standards'' is too broad and does not necessarily relate only to those treaties to which the United Kingdom is party and which are binding on us. Other agreements exist, some of which do not involve the United Kingdom and may not even be treaties in the proper sense, but are referred to by human rights ''activists'' as though they were international human rights standards. We cannot expect all those involved in the administration of the legal system to have a detailed knowledge of everything to which reference is made, some of which may be spurious and some of which may be, as the hon. Member for Beaconsfield said, nebulous.

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office

Does the right hon. Gentleman accept that, given how the clause is drafted, the mechanism by which guidance comes to the courts is via the Attorney-General? That deals precisely with the point that he rightly raises. Although one would not expect the courts at all levels to be fully conversant with the validity or standing of various treaties, the filter mechanism helps to provide for consistent guidance.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

I was about to develop some thoughts along not dissimilar lines. I understand the distaste for writing in such provisions—the clause is a page and a half, but one's instinctive reaction is to regard it

largely as a waste of paper. However, if it were applied sensibly, it could perhaps be used to avert confusion in the system. One way to use the provisions sensibly would be take up the excellent suggestion that the hon. Member for Orkney and Shetland made, to include reference to the specific instruments concerned, because of the uncertainty about the phrase ''international human rights standards''.

As I said, a lot of things are hawked around as though they represent human rights standards, when in fact they do not. It is easy for people to make mistakes in that context. If I may dare say so, it might even be possible for Attorneys-General to make mistakes, too. We do not want to open the door to allowing an Attorney-General inadvertently to recommend people through guidance to abide by a standard, convention or agreement to which the United Kingdom is not party and by which we do not wish to be bound. Providing for a simple schedule listing the documents to which the clause is intended to refer would therefore be a sensible safeguard. That is a good suggestion on which the Minister will, I hope, reflect, bearing it in mind that some people go around trying to foist on the system things that are not international human rights standards as though they were.

Photo of Mr Andrew Hunter Mr Andrew Hunter Independent Conservative, Basingstoke 10:45 am, 1st April 2004

I do not quarrel with the lines of argument suggested by the right hon. Gentleman or the hon. Member for Orkney and Shetland, but surely the essential point was made by my hon. Friend the Member for Beaconsfield. Since subsection (2) subordinates the relevant human rights conventions—or whatever they may be—to the Human Rights Act by means of section 6 of that Act, why on earth do we need to refer to them at all?

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

The Human Rights Act gave effect to the European convention on human rights, which has limited content. Subsection (2) ensures that the guidance will not override anything contained in the European convention on human rights. However, what happens if other provisions, documents, conventions, agreements or alleged agreements relate to matters not covered by the European convention on human rights? Subsection (2) will not cover those situations. There may still be some merit in the approach that we have suggested.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I did not seek to delete subsection (1) in its entirety, because I accept that Parliament could pass further human rights standards other than the Human Rights Act 1998. In those circumstances, it would be the Attorney-General's job to apply them so long as they were not incompatible with the Human Rights Act. The Minister accuses me of knee-jerk reactions to the words ''European'' or ''international'', but it is fairly well known within my party, although I sometimes wonder and begin to regret it, that I was one of the few people who expressed broad support for the idea of incorporation during the passage of the Human Rights Bill.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

Yes, and I sometimes regret it, because it has been used as an excuse for diminishing aspects of human rights in this country on the basis that, having done so, we are still Human Rights Act compliant. That was something I had not anticipated at the time when I suggested that I though it might be worth while. However, leaving that to one side, the Human Rights Act has force of law, and that is why it has to be applied.

Picking up on a point made by the hon. Member for Basingstoke, I have to say that it is dangerous to have nebulous concepts in legislation in the first place. Whatever a human rights standard may or may not be, if it does not have force of law it is only a guideline. No organisation is required under the law to follow that guideline, because it does not have force of law. There is an argument there.

I understand the intention of the clause, which is that the Attorney-General should remind the various statutory organisations about human rights standards that he considers relevant to the criminal justice system. I also appreciate that those standards could go further than the Human Rights Act 1998, particularly if we have enacted any other legislation of our own that could be said to have a human rights dimension. However, they are not international human rights standards, which by their very nature are likely to be in part other documents to which we are a signatory, but can also involve sources well beyond that. That could include discursive textbooks on what international human rights standards should or should not be.

I say to the Minister that it is bad practice to draft legislation, which will have to be subject to judicial interpretation, in such woolly and nebulous fashion. Subsection (1) is still a little woolly with the word ''international'' removed, but I am prepared to live with that, as we now seem to legislate intentions and not law. I will not accept the word ''international'', because it adds nothing to the rest and it creates a misleading picture. The nub of the issue is in subsection (2), and in the circumstances I wish to press the amendment to a vote.

Photo of Joe Benton Joe Benton Labour, Bootle

Before I put the question, I point out to the Committee that there is a clear instruction for conduct in Committees about the reading of magazines, newspapers and so forth. I will not mention individual Members by name, but I ask them to observe that rule.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 11.

Division number 6 Adults Abused in Childhood — Clause 7 - Guidance for criminal justice organisations on human rights standards

Aye: 6 MPs

No: 11 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I beg to move amendment No. 59, in

clause 7, page 5, line 17, at end insert 'or'.

Photo of Joe Benton Joe Benton Labour, Bootle

With this it will be convenient to discuss amendment No. 60, in

clause 7, page 5, line 18, leave out from 'organisation;' to end of line 19.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

Amendment No. 59 is return to semantics. I do not understand why the word ''or'' has been omitted at the end of subsection (5)(a) when it has been included at the end of subsection (5)(b). Either we have a new practice under which ''or'' is removed entirely or we have a practice under which it is reinstated. It is as simple as that. I accept that this is a drafting point, but unless the Committee picks up on drafting practice, there is no point in our trying to our job. The clause should read, ''adding any organisation . . . or omitting an organisation, or altering the description of an organisation''.

Amendment No. 60 has somewhat more substance and relates to altering the description of an organisation. I seek clarification. Subsection (4) defines a number of organisations that will be provided with guidance. If those organisations change their name, that will require primary legislation or a statutory instrument, which could provide for altering their description in guidelines and other statutes. I do not understand why the Attorney-General has been given the power to alter the description of an organisation.

I hope that the Minister gets my point. I would be concerned if the Attorney-General could alter the description of an organisation, thereby adding an organisation that does not appear on the list in the first place. I do not understand why paragraph (c) has been included, but if the Minister can explain why, I will not press amendment No. 60.

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office

I am advised that all recent legislation includes ''or'' only at the end of a list. I accept that that is a semantic point, but it is common practice.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I am grateful for that, but will the Minister deal with amendment No. 60, which concerns altering the description of an organisation?

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office

Subsection (5)(c) exists to ensure that the list of organisations to be covered by the guidance can be kept up to date without recourse to primary legislation. It allows the Attorney-General for Northern Ireland to change the description of an organisation, which he may need to do if one of the organisations changes its name. Let me give an example. The Juvenile Justice Board in Northern Ireland recently changed its name to the Youth Justice Agency. Paragraph (c) allows the Attorney-General to update the descriptions in clause 7 as such changes take place. I am advised that the formulation has been used in previous legislation, such as clause 46(6)(c) of the Justice (Northern Ireland) Act 2002.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

What is the point of subsection (5), when subsection (1) says:

''The Attorney General for Northern Ireland shall issue, and as he thinks appropriate from time to time revise, guidance''?

It would be quite appropriate to revise the list of organisations in guidance. Why on earth include a separate subsection? It seems quite unnecessary.

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office

Subsection (5) applies to the organisations in subsection (4). The ability to add or omit an organisation may reflect organisational changes. There are two issues here: the organisations to which guidance would be sent and the guidance that would be issued by the Attorney-General. Therefore, subsection (5) merely reflects standard drafting practice. Accordingly, I commend it to the Committee.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

On the second amendment, which is about altering the description of an organisation, I accept what the Minister says, although the right hon. Member for Upper Bann makes a good point. On the first, I can say only that it is a jolly good thing that I never wanted to be a parliamentary draftsman, because I would have gone mad. I am grateful to have ascertained that only the last ''or'' is left in, but if that is indeed the practice I do not understand why it should be left in—it is as simple as that.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I hope that somebody in the parliamentary draftsman's department drops me a line to explain how that practice has crept in. It is most peculiar, and, as I said, sloppy. I very much regret the form in which the legislation has come before the Committee.

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office

In a way, the hon. Gentleman raises a much broader issue. He is probably aware that the Commonwealth of Australia has an extensive guide to using normal or plain English in legislation as a matter of common practice. That may be desirable, although I fear that it is a matter for much wider debate and probably not for the Committee to explore in detail. I merely say that the drafting of subsection (5) follows current practice. Accordingly, I ask the hon. Gentleman to withdraw the amendment.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I am a great believer in plain English. I do not like ''aforesaids'' and all the other rigmarole of ancient drafting. I like plain English, which requires link words. It is an interesting feature of current legislation that one must constantly do a double-think and interpret what clauses mean because the link words have been removed. Such drafting goes much further than plain English; indeed, it is the enemy of plain English. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I beg to move amendment No. 61, in

clause 7, page 5, line 33, leave out subsection (8).

Will the Minister tell me what is meant by subsection (8), which states:

''Nothing in this section requires the Public Prosecution Service for Northern Ireland to have regard to so much of any guidance for the time being in operation under this section as is inconsistent with a provision of a code of practice issued under section 37 of the 2002 Act.''?

I have a copy of section 37, which is a code for prosecutors. None the less, I find it difficult to understand subsection (8). Perhaps he can enlighten me.

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office 11:00 am, 1st April 2004

I shall certainly give an explanation; whether it enlightens the hon. Gentleman of course remains to be seen.

Effectively, this is a B and B clause—a belt and braces clause. I fully accept that it is unlikely, although not unthinkable, that the section that the hon. Gentleman wishes to leave out would be needed. Subsection (7) provides that the Director of Public Prosecutions will take the guidance into account when preparing his code of practice for prosecutors. It is therefore hard to see how a clash between the two documents could occur. However, the clause is drafted to take account of all eventualities. I understand the problems that the drafters have in dealing with that, but I think they have achieved it in this case.

For prosecutors to function effectively, we must ensure that they are not subject to contradictory guidance. We must therefore ensure that there is clear guidance if any contradiction between the two documents unwittingly occurs. If any contradiction became obvious, however unlikely that is, steps would have to be taken to rectify it. This is a belt-and-braces measure, and I hope that what I have said explains the matter for the hon. Gentleman.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I fear that it does, and I am grateful to the Minister for providing that explanation. My regrets over the content of the legislation continue.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

I may have misunderstood what the Minister said, but it seems to have a delightful consequence. It appears that the clause is saying to the prosecutors that they have to stick to the code of practice under section 37 of the 2002 Act, and that they do not have to worry about anything in the code of practice on the international human rights standard, because the code of practice for prosecutors takes precedence. They can therefore relegate the code of practice on human rights to the lowest drawer in their desk and not bother about it. He is being helpful to prosecutors by telling them that they can ignore it.

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office

May I clarify that matter? The key point is that that would be the case only in the event of a contradiction. The guidance might be complementary.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I am grateful to the Minister and to the right hon. Member for Upper Bann for making that point—I could not have put it better myself. In the Committee, one sometimes wonders what we have been debating for the last half hour. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 ordered to stand part of the Bill.

Clauses 8 to 10 ordered to stand part of the Bill.