Equality and Human Rights Commission

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              TRANSCRIPT – 24.10.2008

 1                                   Friday, 24 October 2008

 2   Interview with Ms Nony Ardill, Mr Gordon Lishman and

 3                       Ms Kate Jopling

 4   (9.00 am)

 5               MS O'LOAN:   Well good morning and thank

 6        you very much for coming, we are most grateful

 7        to you.    We are particularly appreciative of

 8        the material that you have produced, which is

 9        very useful.

10               I think you probably know Sir Bert Massie,

11        but this is Sir Bert Massie, who is the

12        Commissioner accompanying me on this formal

13        inquiry today.

14               The purpose of the inquiry is to look to

15        the extent to which human rights have been

16         embedded within culture and to look at the

17        barriers that prevented that; to look at the

18        ways in which people made their way around and

19        over those barriers; to look at existing

20        barriers and to share good practice stories,

21        and to make recommendations to statutory

22        authorities about what they need to do to

23        further the situation.

24               You have a right to privacy and we

25        inquired whether you were willing to give

 1   evidence in public and you all indicated you

 2   were.   That remains the case, yes?     If you

 3   change your mind, just let me know.     It has

 4   happened just a few times.    If you don't

 5   understand what we are asking you, please ask

 6   us to clarify the question, it is not

 7   impossible.

 8        Lastly I usually invite organisations, if

 9   they wish so to do, to make a two minute

10   statement.    Would you like to make a two minute

11   statement?

12        MR LISHMAN:    Okay, well I will start.

13        MS O'LOAN:    You don't have to.

14        MR LISHMAN:

23   The first answer to the question of how far

24   embedded in the culture of public services is

25   the principle of human rights and the knowledge

 1   of the Human Rights Act is: to a very limited

 2   extent indeed.     That remains particularly true

 3   in relation to health and social care where the

 4   overriding culture continues to be that of

 5   a group of professionals who are in charge, but

 6   there is also a culture which involves

 7   the lack of easily identifiable individuals who are

 8   accountable for the output of the system.        That

 9   combination of a patronising

10   approach and a lack of accountability makes it

11   extremely difficult in particular cases to

12   carry problems through to resolution.

13        In relation to older people we have

14   a particular problem, because those who are

15   most likely to need the protection of the Act
16   are people who are frail and whose very

17   existence, and certainly whose comfort, is potentially


19   threatened by being involved in argument or in

20   the law.    That's quite a major problem for us,

21   because when it comes particularly to issues

22   that are around the right to life, when that is

23   threatened in the case of people who are 80, 90 or 100,

24   they are unlikely to be in a position to want

25   to take that far in legal terms with all the

 1   risks entailed.     There

 2   is evidence of

 3   people responding to stress by dying,

 4   which may be inconvenient in legal terms, but

 5   does suggest that they would be right not to

 6   take risks at that sort of stage.

 7        Take one area in particular:

 8   access to mental health services, or

 9   nutrition in acute hospital and residential

10   care settings, and the scale of the problem is

11   immense.    Prof Mary Marshall from the University

12   of Stirling some years ago identified that over

13   a third of people who are suffering from

14   dementia in long-term nursing care were

15   suffering from a degree of malnutrition.    There is

16   a significant increase in the degree of

17   malnutrition suffered by elderly people during

18   the week's period that they are in hospital.       You

19   can chart the increase in malnutrition

20   during that time.    There is no doubt

21   that in a significant number of cases that is

22   because of a failure of the people with

23   responsibility for care to provide the

24   assistance and support that's needed in eating.

25   That is a

 1   direct threat to people's lives and because


 3   it is clear that malnutrition

 4   increases the likelihood of post-operative

 5   complications, of contracting

 6   hospital-based infections,     of readmission after a short

 8   period and of hopitalisation of a caring spouse after a

 9   short time.

10        MS O'LOAN:     I think I'm going to stop you

11   at that point.     I think we want to go into some

12   of those issues in some detail, so unless

13   there's another more general point you would

14   like to make?

15        MR LISHMAN:     I was convinced by

16   Francesca Klug's argument about ten years ago

17   that when the commissions developed in Canada

18   and South Africa, the role of the commissions

19   in raising the profile of human rights was key.

20   I don't think that the Commission can transfer


22   its legal responsibility for that degree of

23   publicity to other organisations.

24        MS O'LOAN:     Yes that's absolutely clear,

25   thank you very much.     Kate, do you want to --

 1        MS JOPLING:    If I could just say a few

 2   things from Help the Aged's perspective.

 3   I thought perhaps it might just be worth

 4   outlining where Help the Aged comes from on

 5   a human rights issue.

 6        MS O'LOAN:    Just because we've so limited

 7   time, we have your human rights policy, we've

 8   got a very extensive paper, but go ahead.

 9        MS JOPLING:    I think just to outline from

10   Help the Aged's perspective and (inaudible)

11   work on human rights issues but the extent to

12   which we (inaudible).

13        There's no limit to the extent to which we

14   have been working on human rights issues, but

15   the extent to which that has been explicitly

16   acknowledged has been much more recent and

17   although most of the bulk of our work has been

18   campaigning and influencing, we have had

19   a legal officer working with us to take forward

20   a number of specific cases, not generally

21   through the courts but at an earlier stage, and

22   I think that has given us some particular

23   insights into the operations of human rights

24   for individuals and older people's lives, as

25   well as in the generalities.    So it might be

 1   worth touching on how that works.

 2           MS O'LOAN:   Do you wish to say anything,

 3   Nony?

 4           MS ARDILL:   No, no.

 5           MS O'LOAN:   Thank you for that.    Can I ask

 6   you what you think the three key human rights

 7   issues affecting older people are?         My guess is

 8   we already have Article 2, but what are the

 9   other key human rights issues for older people?

10           MS ARDILL:   I would say another

11   key -- I mean Gordon has already mentioned the

12   right to life and the malnutrition issue and

13   that is clearly an important one.      Another one

14   I would put near the top of the list is the

15   whole issue of insecurity, legal insecurity, as

16   a resident of a care home, because residents

17   have no tenancy, they are purely licensees and

18   they are aware that any complaints that they

19   raise of abuse or neglect have a secondary

20   knock-on effect, which is the fear of eviction,

21   whether it is real or imagined, and the

22   insecurity is very starkly demonstrated when

23   there is a care home closure.      So that's

24   another thing I would put near the top of the

25   list.     Kate probably has another one as well.

 1           MS JOPLING:    I was just going to say I

 2   think the article Help the Aged uses most often

 3   both informally and formally, has been

 4   Article 8, private and family life, and largely

 5   in care-related settings in terms of the

 6   classic case of the separation of couples and

 7   refusal to allow family to visit and that kind

 8   of thing.     But also, for example, the cases

 9   that we mentioned around the disability living

10   allowance and mobility issue, where it is that

11   wider context in terms of the ability to engage

12   with the community more widely that's in play

13   there.

14           MS ARDILL:    In terms of articles it is

15   Article 2, Article 8 and Article 3 which are

16   the three key articles, there's no doubt about

17   that.

18           MS O'LOAN:    Can you tell me, because we

19   are trying to identify the extent to which the

20   human rights culture is embedded and which

21   service providers actually understand their

22   obligations; can you tell me, have you

23   identified any significant impact of the Human

24   Rights Act on those with whom you deal?

25   Perhaps to revert to your situation in the

 1   cases, have you been able to use the Human

 2   Rights Act on behalf of the elderly?

 3        MS ARDILL:     I think there are some pockets

 4   of good practice.    We are aware that in

 5   Southwark Council there has been a lot of work

 6   to mainstream human rights throughout the

 7   organisation which has been quite successful

 8   and they have been working with the British

 9   Institute of Human Rights, who I'm sure will

10   tell you about this in more detail, and also

11   the Mental Health Act Commission has had a very

12   systematic approach to human rights, employing       user

13   involvement as a way to achieve that, which I

14   think is very laudable and we would hope very

15   much that what they have achieved in the Mental

16   Health Act Commission will transfer across

17   to the Care Equality Commission when it is up

18   and running.   So there are examples of good

19   practice, but I'm sure my colleagues would

20   agree it is the exception rather than the rule.

21        MS JOPLING:    I think, for me, there are

22   people who are aware of the Human Rights Act as

23   a tool, so for example the person who actually

24   operates our legal office in their other life

25   provided training quite often to social

 1   workers, and so you know, those individuals --

 2   social workers -- find it very useful and there

 3   are others who were already using human rights

 4   concepts in their work.

 5         But my observation would be there are very

 6   few of our public services who live their life

 7   through the lens of the Human Rights Act and

 8   operate that way.     Some people within those

 9   services are aware of what the Human Rights Act

10   might enable them to -- you know, how it might

11   enable them to argue up various aspects of the

12   delivery, but then there is this other problem

13   in terms of this "we dare not speak the name of

14   human rights", where human rights issues are in

15   play, for example dignity is an example in the

16   NHS, but there is a lot of resistance to doing

17   so.

18         MS O'LOAN:    That's something we are very

19   much concerned about.     You wanted to come in?

20         MR LISHMAN:    I was just going to underline

21   the general point.     You can always get on these

22   issues -- around dignity and respect,

23   human rights concerns -- a group of people who

24   are interested and it is the

25   same people who engage in

 1   discussions and bring them back

 2   to their own organisations.    There is a second

 3   tier of people who will at least go on courses

 4   and listen to what's being said.   That applies

 5   across the good practice we are involved in,

 6   and my feeling is

10   that things go in circles rather than in

11   a spiral.    Issues about dignity and respect

12   may for a time get extra attention and go

13   up the agenda - with dignity champions,

14   websites and conferences, - then

15   you get a new minister who has a different set

16   of priorities

19   and the advantages slip between your

20   fingers.    One of the specific things

22   on Kate's list is about delayed discharge.

23   Over the course of

24   three and a half decades I have seen occasional spurts

25   towards good practice, after which it falls

 1   back into the same old bad practice,

 2   lately made worse by the Delayed

 3   Discharges Act. In other areas of

 4   public policy, you can see an

 5   improvement, building on

 6   previous improvements and taking them forward.

 7   In the area of the National Health

 9   Service, that doesn't happen.

10   The reason the Commission is

11   potentially so important is that it ought to be

12   able to achieve a long-term change.

17        MS O'LOAN:   Can I take you back to the

18   language issue, because that is a significant

19   issue obviously and you talk about dignity and

20   respect and dignity champions and that sort of

21   thing.   Evidence which we have received would

22   indicate to us that using the language of

23   dignity and respect is not adequate to enable

24   people to know -- so if you have a view on

25   that, whether we need to use the more precise

 1   language of human rights, not necessarily in

 2   a legalistic way, but simply to let people know

 3   that human rights apply to -- you have a right

 4   to live with your husband, for example, when

 5   you get old.

 6        MR LISHMAN:   The fundamental point

 7   it is that “dignity” and “respect,”, by definition

 8   really, are patronising.   It's what you expect

 9   you and hope

10   somebody else will give to you.    Rights are

11   what you have a right to expect.    Ordinary

16   people, only use the word dignity in the

17   negative.   They don't say, "I want to be

18   treated with dignity",". That's

21   why "respect" is so much more important,

22   because that's the word people use: I want to

23   be treated with respect.   But that is asking

24   for a courtesy, that's asking to be treated

25   on an everyday basis as a human being.      That is

 1   a long way short of saying: I have

 2   a right to be treated in these ways, I have

 3   a legal right.

 4        I am entirely

 6   convinced that the best available weapon to use

 7   to get through to health and

 8   social care providers, is terror!     If the

 9   Commission in particular can manage to instill

10   an appropriate degree of fright about being

11   publicly pilloried    that will produce a reaction

13   that no amount of rhetoric will do.

14        MS JOPLING:     On the language thing, we

15   regularly assess cases, the local media type

16   thing, for example, when a couple have been

17   separated in a care home and it is very much

18   along the lines of, "Don't our war heroes

19   deserve better", et cetera, et cetera.    I think

20   we had to stop using the language they wanted

21   us to use and to start saying: well this is

22   about their fundamental human rights this is

23   a human rights issue.    I think it is quite

24   a shift when people tend to couch their

25   questions and views on how older people should

 1   be treated in terms of it being deserved, or in

 2   terms of it being mean and unfair to push back

 3   and say: no, people have rights.    I think we

 4   have had to make that conscious decision and I

 5   think you have to battle against the

 6   unwillingness of journalists to hear you say

 7   "human rights" when challenging stories.

 8        MR MASSIE:    So this is about the worthy,

 9   the needy, isn't it?

10        MR LISHMAN:    Exactly and you come back and

11   say, "Are you saying that conscientious

12   objectors aren't entitled to pensions and basic

13   rights and social care?"

14        MS ARDILL:    I think in public policy there

15   is a real reluctance to talk about rights of

16   any kind and I think the Human Rights Act has

17   fallen foul of that general sort of policy

18   trend.   My view on the dignity/respect debate

19   is that I think there is some value in

20   reminding people that the Human Rights Act

21   embodies the European Convention, which is an

22   expression of common values, and that's why I

23   think that the campaign just launched by

24   Liberty could be extremely helpful.

25        The important thing to remember is that

 1   these common values, which are expressed

 2   legally in the European Convention, are not

 3   just, you know, pink and fluffy: they are

 4   route do in legal requirements and are

 5   enforceable.   So I think to use that language

 6   to get people into the idea of thinking about

 7   human rights has a value, but never let them

 8   forget, whether they are users or service

 9   providers, that those are expressions of a body

10   of international legislation.

11        So I would say: yes, but no.

12        MR LISHMAN:     And people in other

13   countries, particularly in mainland Europe,

14   would recognise a philosophical underpinning

15   for that.   I think the problem we have had is

16   we have talked about rights as if people knew

17   exactly what we meant and there is a substantial Anglo Saxon

20   discourse which is about people like

21   Rawls, Dworkin and John Harris.     I'm not saying

24   that is part of what you talk to public

25   authorities about.     I'm saying that, for the

 1   people who lead this debate, a greater degree

 2   of grounding and a greater degree of

 3   understanding of the legal, philosophical idea

 4   of rights and how it applies --would be beneficial.
     I think we fail to do that,

12   which is one of the reasons for a lot of these

13   ideas sort of slopping around within the basin

14   of debate, because they don't have any firm,

15   understood, shared intellectual underpinning.

16        MS O'LOAN:   The next sort of general area

17   I want to look at are the barriers which are

18   there for achieving the sort of full effect of

19   the Human Rights Act.

20        I wondered -- I think you have identified

21   a lack of knowledge and a lack of

22   understanding, but can you --

23        MS ARDILL:   Yes, I think definitely the

24   lack of leadership at government level and I

25   think the finger has to be pointed partly at

 1    the Ministry of Justice, but partly also at the

 2    Department for Health, as the department most

 3    centrally involved in the delivery of public

 4    services, certainly in terms of older people

 5    where it really matters is     obviously health

 6    and social care.

 7           But we would also say that there’s alack of

 8    comprehensive legislation -- obviously we are

 9    very pleased that the scope of the Human Rights Act

10   has been extended to cover people whose

11    care is publicly arranged in care homes, and

12    both our organisations worked long and hard to

13    help bring about that amendment to the recent

14    legislation.

15           MS O'LOAN:   It still doesn't deal with --

16           MS ARDILL:   It doesn't deal with people

17    who are self-funding and huge numbers of people

18    are.    So really what needs to happen is that

19    the government needs to follow through its

20    pledge to examine the whole issue of what is

21    a public authority under the Human Rights Act

22    and when is an organisation that's not normally

23    a public authority performing a function of

24    a public nature?     This keeps coming up through

25    the courts, for example the recent Weaver case,

 1   which is a High Court case, has suggested that

 2   registered social landlords are performing

 3   a public function within the meaning of the

 4   Human Rights Act and undoubtedly that will be

 5   challenged through the appeal courts.      So this

 6   uncertainty is allowed to continue and the

 7   government just has to bottom this out.

 8        But the other aspect of inadequate

 9   legislation, from the point of view of older

10   people, is the fact we do not yet have in place

11   legislation to outlaw age discrimination in

12   goods and services or a public sector duty to

13   promote age equality.   We would argue that

14   equality and human rights are very, very

15   closely linked and particularly from the point

16   of view of the Commission.    You want a full

17   tool kit of legislation, you don't want bits

18   missing, so we hope very much that the equality

19   bill -- Gordon is on the senior stakeholder

20   group for the bill -- will be able to deliver

21   on this, and not in a compromised way.

22        MR LISHMAN:   It is fair to say the

23   Commission's representatives on the stakeholder

24   group have quite strongly supported the line

25   that we have been taking.    But we begin to

 1   feel some signs of that commitment ebbing,

 4   which is why we are strongly trying to keep the

 5   pressure.

 6        MS JOPLING:   Other barriers, I mean the

 7   fear factor that Gordon mentioned I think would

 8   be a key barrier in terms of, you know, you

 9   have a population that at least looks grateful

10   because it isn't complaining, even if it isn't

11   necessarily grateful.

12        I think another issue is that actually

13   some of this feels just completely unattainable

14   because at the moment we are so far below the

15   standard that delivers basic human rights that

16   it's very -- you know, it's something that you

17   learn about in the classroom, but to see how it

18   could be applied is just impossible, I mean

19   particularly around Article 8.   I can

20   understand to some extent -- I don't accept,

21   but I can understand -- that if you are sitting

22   in a social services authority and you are

23   looking at how you could achieve those

24   standards in practice and in full, you are just

25   seeing a huge gulf between what you have and

 1   what you need.

 2        MR LISHMAN:     I think I would draw

 3   attention to one of the specific points in

 4   Kate's evidence, which is the

 5   reference to delayed discharge matters.        This

 6   is one of those things that I get really quite

 7   angry about.     In relation to entry into

 8   residential care, people tend to get worked up

 9   about people losing their home.     The much

10   greater scandal, it feels to me, is the way in

11   which half of people that go into residential

12   and nursing care do so straight from acute

13   hospital settings.     We have created a situation

14   in which that happens very quickly, people are

15   told that their relatives have to find

16   somewhere in which they will spend the whole of

17   the rest of their lives within, say, two weeks,

18   without effective support or information

19   and working their way through the jungle of

20   what's available without any sort of assessment

21   of the circumstances under which they would be

22   capable to live at home.

 1   We are talking about something which affects

 2   a very large number of people every year, and

 3   I talk about a "reservoir of guilt"

 6   amongst people of my sort of age about

 7   decisions we have had to make with and about parents and

 8   grandparents.

11   Now it is really pretty basic in the field of

12   rights to have the ability, if and when you

13   have to make that decision, to make it in an

14   orderly way with proper advice and support and

15   indeed a proper ability to question whether or

16   not it is the right answer.

17        MS O'LOAN:    A lot of the residential care

18   that's provided by local authorities and social

19   care --

20        MR LISHMAN:    Is financed by the local

21   authority, yes.

22        MS O'LOAN:    One of the things that we were

23   interested in was that, in terms of local

24   authorities, there don't seem to be clear human

25   rights leaders or human rights champions.      If

 1   they are not there, who's going to provide the

 2   leadership?    Should the Department of

 3   Communities and Local Government be in there?

 4   Who should be providing leadership there

 5   because, without that, and without -- for

 6   example, I think it was the Age Concern

 7   document that alluded to the fact that the new

 8   NHS constitution has no mention of human rights

 9   and without those two specific things how can

10   you expect human rights to be delivered?

11        MS JOPLING:    Well, the CQC has a key role

12   in relation to care itself and I think, you

13   know, indications are good that they get that

14   human rights has become central to what they

15   are doing.    But also, you know, it comes at

16   a time when the inspection regime is being

17   shifted and we have to see how effective they

18   are going to be in terms of delivering any of

19   their messages, let alone the human rights

20   parts of their messages.

21        But I think, in a way, I think sometimes

22   the idea of a leader for human rights within

23   any authority is potentially as much of

24   a problem as a solution, because it is then,

25   "Well, they do human rights".    It is something

 1        about making it a reasonable way of operating

 2        day by day, and I think that means it is about

 3        writing it into objectives and standards that

 4        operate at every level, not just the high

 5        level.

 6             MR LISHMAN:   There is a fundamental

 7        difference between NHS and local government.

 8        The NHS is by definition a top-down structure.

 9        The thing they call a constitution is an

12        illustration of the fact that they

13        regard it as something which is governed by

14        national rules.

 5             Local authorities are much more bottom-up.

 6        I spent Wednesday evening with chairs of adult

 7        services committees and local authorities at

 8        their conference in Liverpool and you can talk

 9        to directors of

10        adult services and local authorities, and they

11        will understand a personal responsibility for

12        trying to get matters right in the interests

13        of the people who elected them and that's a

14        fundamental difference.

15             So if I were approaching a local

16        government, I would do it partly through the

17        DCLG, the IGA IDeA, and by going

18        directly to chairs and directors.    It doesn't

19        work like that in the health service.

20             MS ARDILL:    I think the Audit Commission

21        also has a very important role with local

22        authorities and in 2003 the report they did on

23        human rights was a really good piece of work.

24.   But I think that

25        was their peak, I don't think they quite got

 1   back to that visible level of commitment to

 2   human rights, and it would be nice if they did.

 3   I think their role in bringing up local

 4   authorities' level on human rights is important

 5   as well.

 6        MR MASSIE:    That's what Kate was saying in

 7   that you were saying the constitution sets down

 8   you said "the rules" and, Kate, you were saying

 9   that the problem with champions is that they

10   could get in the way because of pigeon-holing.

11   I'm just wondering, will something behind

12   this -- if you just have rules which are not

13   really reinforcing, you obey them when you

14   don't know why you obey them, which is why you

15   get patients with malnutrition, because no-one

16   starts off saying, "I want patients to

17   starve" ... and I think your point about the

18   champions, and I dealt with these in another

19   part of my life, is there's no job descriptions

20   for champions.    We have this thing called "the

21   champion" and if the champion doesn't quite

22   know why they are there, you know, if

23   a champion was actually picking up -- what you

24   were saying, Gordon -- actually going beyond

25   the rules to really spreading the culture then

 1   there might be a role for champions, but you

 2   would need to make sure that it doesn't become

 3   a barrier.

 4        MR LISHMAN:   Just to follow the argument

 5   through, a lot of the rules by definition are

 6   about inputs and a great deal of the

 7   measurement is about inputs and the challenge

 8   is how you get them to look at outcomes.     I'm quoting from a

15   CSCI inspector, who asked what did happened when

16   they discovered that the temperature in the

17   fridge was considerably above what it ought to

18   be and therefore there was a serious risk that

19   the food would go off and the answer was: “we

20   monitor it.”.   Take the red tray scheme, which is

21   to draw attention to people in acute health settings

22   who need help with eating,; there is

23   evidence that people feel that having red trays

24   and identifying the people who get them is

25   sufficient and you don't actually have to do

 1   anything afterwards.     We have had

 3   this idea of protected meal times so you

 4   don't have ward rounds and so on and you enable

 5   the staff to concentrate on helping people to

 6   eat and if you have relatives and friends who

 7   will be there and who will help as well, that's

 8   great.     What we've discovered is that people

 9   are protecting the meal times from the

10   relatives and friends, saying, "You

11   can't come in and the fact that you have come

12   and helped your mother and father to eat at

13   this time, we've decided to change".       It is

14   a culture which is based on rules which are

15   primarily about inputs rather than outcomes.


17   I really want to make this challenge to the

18   Commission.    You have the continuing

19   responsibility.    There will always be people

20   who concentrate on one subject rather than

21   another.    I concentrated on two themes

22   about health and social care for the after

23   dinner speech of the chairs

24   of adult services committees and I didn't

25   mention human rights, because I had to do

 1   I thought it was very important to say something about

 2   social care funding and something about inter-generational

 3   links.     A few years ago I may

 5   well have said: human rights are the thing this

 6   year.     But we are always going to be making

 7   choices.     We will have a long agenda, but at

 8   this point of that we will be saying: this is

 9   the thing we will be going for now.        You will

10   be going for those themes all the time which

11   will be raising the long-term profile.

12           MS O'LOAN:   Yes, we want to see it

13   integrated into every policy and that's where

14   it has to be.

15           MS ARDILL:   Can I make one more point

16   about the outcomes points that Gordon has made.

17   I think it is something that's very difficult

18   to capture success in human rights, because

19   the outcomes that you want to measure are often

20   to do with people's experiences and it's

21   really, really hard to devise a measurement

22   system that properly captures that, which

23   benchmarks it and then looks at progress as

24   years go by.     We've certainly found that in

25   commenting on human rights.        I don't know if

 1   you have had more success, Kate?

 2        MS O'LOAN:    One of our next witnesses are

 3   the Northern Ireland Police who have

 4   a statutory duty to give effect to the Human

 5   Rights Act -- and policing is, I think, a key

 6   issue for older people too -- and that duty is

 7   being imposed on the police authorities in

 8   England and Wales from April 2009 I think.

 9   This is their annual report on human rights and

10   they go through each operational area and look

11   at human rights.    It's training, equipment,

12   staffing, everything, so it can be done.

13        MS JOPLING:    I think one of the things

14   that's interesting from the cases we got

15   involved with, was my general perception would

16   be that there would be a bit of resistance

17   against impact assessments and other tools, yet

18   in the Eastley(?) case we got involved with,

19   which is a planning case, where the planning

20   authority had initially said, "We don't need to

21   do human rights, they are not a planning

22   matter", and we had to point out how it worked,

23   the way that they felt it would be better dealt

24   with would be to start having a human rights

25   impact assessment of key decisions.    I think

 1   that's quite interesting, because, you know,

 2   they sort of volunteered to actually get

 3   involved with another mechanism, which you

 4   wouldn't normally expect.       I think it is

 5   sometimes the case that you need a system for

 6   thinking through and stopping and stepping

 7   back, and even though at the level of central

 8   government there's a kind of general sense

 9   that, "We mustn't impose any more of these

10   things", well that authority voluntarily wanted

11   one.    I think sometimes there is a gap between

12   what people find useful when they are trying to

13   do the job and the official wisdom about what

14   is or is not a good idea.

15          MS ARDILL:    Maybe what's needed is a human

16   rights element to the new integrated public

17   sector duty.

18          MR LISHMAN:    Yes.   Can I just emphasise

19   the importance of the Northern Ireland

20   experience.    Our colleagues who run

21   Age Concern in Northern Ireland as chair and

22   chief executive and have a substantial background in the

23    northern Ireland Equalities Commission and have been very

24   much involved in the wider Northern Ireland experience, and

25   which we are not seeing brought into the
 4   wider UK discourse.    I think bringing out some of

 5   that Northern Ireland experience in general for

 6   the rest of the UK is quite important.

 7        MS O'LOAN:    Thank you.   We heard evidence

 8   yesterday in relation to barriers.    We heard

 9   from disability organisations and one of the

10   barriers that they identified actually -- it's

11   obvious but it surprised me.     It was disabled

12   people seeking public appointments and, because

13   they were in receipt of benefits, they were

14   having to consider whether they could be

15   engaged at a senior level in public life,

16   because if they were paid £5,000 a year -- as

17   many of those appointments are -- they lost

18   their benefits.    Is that an issue for older

19   people too?

20        MR LISHMAN:    I know of it in relation to

21   disability, I've certainly seen it.    Not

22   one -- it's not something I have come across.

23        MS JOPLING:    It hasn't been particularly

24   raised but there would be an interaction with

25   pension credit.    But actually I think the

 1   reality is that in terms of older people that

 2   become engaged in public bodies, it just hasn't

 3   reached that community yet for it to become an

 4   issue.

 5        MS O'LOAN:    But it is interesting,

 6   speaking as one who has sat on a number of

 7   public bodies, as there are a lot of over

 8   60s --

 9        MS JOPLING:    But probably not pension

10   credit recipients.

11        MS O'LOAN:    That's the difference.

12        Okay, I am conscious we need to move on.

13        I wanted to ask you very briefly what is

14   the role of advocacy and self-advocacy in

15   pushing public authorities?     Is there anything

16   you want to add on what you have said already?

17        MS ARDILL:    We have already mentioned our

18   mental capacity advocacy project, but that's

19   a project we are very proud of and one which is

20   underpinned by human rights values.

21        MS JOPLING:    I think waiting for

22   self-advocacy is not going to -- you need to

23   actually promote support.

24        MS O'LOAN:    Thank you.

25        MR LISHMAN:     There is

 1    a particular public policy point at the moment,

 2    which is that the so-called “concordat” document,

 3    Putting People First, which brought together

 4    a number of departments and ministries, made

 5    a strong commitment to the importance of

 6    advocacy in relation to the

 7    “personalisation agenda.”.     It is one of the

 8    statements of principle which continues to be

 9    repeated but is not being backed so far by

10    significant investment.

11         MR MASSIE:    Some of our other witnesses

12    have been very animated about the negative

13    portrayal of human rights and that is the

14    really big barrier to the whole growth of the

15    human rights culture.     Would you agree with

16    that and, if you do, what do you think would

17    account for a negative portrayal?

18         MR LISHMAN:    Do you read the Daily Mail?

19         MS ARDILL:    Well, when the YL case went to

20    appeal, they championed the cause of Mrs YL which is

21   very interesting, and I think we

22    have been saying consistently that there needs

23    to be recognition of the value of human rights

24    for older people as users of health and social

25    care as a way to push forward that side of the

 1   human rights agenda and if older people

 2   themselves understand that human rights is not

 3   just for terrorists and asylum seekers and

 4   criminals, and start to take ownership of human

 5   rights as something for them, this will feed

 6   into the whole public policy debate on it.

 7   That's one of the contributing factors which we

 8   think could change the discourse.

 9        MR LISHMAN:   In the early days of setting

10   up the Commission there was often a strong

11   voice which was saying that the Commission has

12   to be willing and courageous enough to stand up

13   for unpopular causes.     That is entirely true.

14   It will not do the Commission any harm to stand

15   up for popular causes as well. One of the

16   things in relation to age, disability and

17   gender is that they are

18   potentially quite popular causes and there is

19   quite a lot to be gained, including for those

20   groups, by standing up for them.

21        I quite strongly hold the view that in

24   arguing the case for the popular causes you do

25   not do so in any way which undermines the

 1   importance and principle in cases where groups

 2   may be less popular.

 3        MS JOPLING:     But I think it is a problem

 4   because where the Daily Mail has covered human

 5   rights it has kind of tended to say: look if

 6   all these criminals are getting human rights

 7   then this nice lady might as well too.     It

 8   hasn't fundamentally understood that the

 9   criminals and the nice lady get the human

10   rights on exactly the same basis and she isn't

11   sort of, you know, gaining from a system that

12   was meant for them; it is for everybody.        I

13   think that's really, really difficult to shift

14   and I think actually, you know, the real

15   victory will come when we start sort of

16   recognising that the human rights of, say,

17   older prisoners, for example, if that was

18   written up in the Daily Mail that would have

19   gotten somewhere.

20        MS O'LOAN:     We have taken evidence from

21   the Daily Mail and they covered things that

22   were really very interesting.

23        MS ARDILL:     Can I just make one further

24   point from a personal viewpoint on the whole criminal

25   justice aspect and that is that the government is partly to

 1   blame by majoring on this idea that victims should be

 2   put at the heart of the criminal justice system

 3   and talking about it as though it is a zero sum

 4   game: that you give rights to victims and

 5   therefore take them away from defendants.      That

 6   is such dangerous thinking and also completely

 7   cuts across the very basic principle that all

 8   of us, were we to be accused of a criminal

 9   offence, would want to be considered innocent

10   until proven guilty.    Well, that's my personal opinion that

11   we have to get back to the basic values

12   in criminal law, quite apart from human rights.

13        MR MASSIE:    I'm sure that's right but

14   there's also the issue about perceptions, which

15   is part of what we are discussing here, and

16   I mean there is an argument that -- well, it is

17   clear that we live longer --

18        MR LISHMAN:    Who knows!

19        MR MASSIE:    Well, you change the

20   definition.   But the issue on age is that it's

21   something in which everyone in the population

22   has an interest.    We either are old or hope to

23   become old, by and large.    So is it possible

24   that promoting the human rights of older people

25   is actually a very good way of selling human

 1   rights to the rest of the population, because

 2   no matter what you do in your life, no matter

 3   how virtuous you are, one day you will be old.

 4   If that's right, what could you do, as your

 5   organisation, to address this agenda and what

 6   should the Commission do and what should the

 7   government do?

 8        MR LISHMAN:     I think one thing that the

 9   Commission needs to bear in mind is that the discourse of

11   the last 11 years has been particularly in relation

12   to a government which has reference points in

13   terms of language and philosophy and political

14   ideas of one sort.     If you think about the sort

15   of language and the reference points that

16   somebody like David Davies would use, they may

17   produce the same result actually in terms of

18   human rights, but the argument is different and

19   a rights argument which is based on

20   a collective view of life and an argument

21   based on an individual's view of life is

22   fundamentally different and you need

23   a different language.

24        I think one thing that's important when it

25   comes to dealing with the Daily Mail and the

 1   Conservative party is to think through the

 2   underlying discourse.

 4        Just following through on your question,

 5   Bert, I think we need a more coherent discourse which brings

 7   together an understanding of the nature of

 8   different sorts of prejudice, which is where

 9   the EHRC potentially can construct a narrative

10   which reflects different sorts of prejudice,

11   different sorts of discrimination, into a single

12   coherent view.   Some of the prejudice even in relation to

14   race -- certainly in relation to disability --

15   has moved on from being a prejudice which is

16   about the "other", essentially

17   a xenophobic prejudice, to be a prejudice more

18   like that which is applied to women and old

19   people which is patronising.     That is

20   a prejudice which says they may have rights,

21   but actually they are just not as competent as

22   are "real people" like me, therefore I am

23   entitled to patronise them or feel exasperated

24   if they don't do what we want them to do.    Then

25   I think if you get to the nature of that

 1   prejudice and then find the ways out of that,

 2   which takes you into a discourse and then an

 3   argument which is potentially popular -- but I

 4   think you need to know what the prejudice is

 5   that you are attacking.       Patronising

 6   prejudice which is documented by Professor

 7   Dominic Abrams, a social psychologist,

 8   can go in its extreme towards abuse in care

 9   settings.     There may

10   well be more violence towards older people and

11   people with learning disabilities in

12   residential care settings than there is now on

13   the basis of race or religion on the streets.

14   It can be as bad in its effects, but

15   the way it works is more insidious and it is

16   not as flat in-your-face prejudice. It seems to

18   me the Commission needs to think through some

19   of that underlying narrative about the nature

20   of prejudice.

21           MR MASSIE:    Do you think we are not doing

22   that?

23           MR LISHMAN:    I haven't yet seen evidence

24   to that effect.

25           MS ARDILL:    Can I also say that I think

 1   it's very important for the Commission to

 2   constantly get on top of the myth that rights

 3   are absolute, because the majority of rights

 4   under the European Convention are actually

 5   balanced against the interests of the state and

 6   the interests of other individuals and I think

 7   a lot of the Daily Mail commentary on human

 8   rights completely misses this point and every

 9   single time they miss the point the Commission

10   needs to be right in there correcting them.

11        MS JOPLING:   What I think our organisation

12   could do -- I think, to be honest, we are

13   trying to do the things we can do, but

14   resources-wise we don't have much resource to

15   do more.   We are trying to acknowledge human

16   rights when they come into play in the things

17   we are doing anyway, because they do, so we

18   need to explicitly state that.

19        In terms of the Commission, I think one of

20   the things the Commission needs to do is get

21   clear about what human rights are and are not,

22   and one of the things I find frustrating when

23   it is talked about in front of non-equality

24   family types is this funny idea that human

25   rights is this wonderful angel that comes and

 1   solves conflicts and removes tensions.     I

 2   understand that there is an argument that says

 3   you can use a human rights framework to find

 4   your way through a difficult debate, but I

 5   think we have to be clear that the human rights

 6   framework is a set of rights that belong

 7   to -- you know, they are rights that people

 8   have that we can enforce.   That clarity of

 9   debate -- instead of just sort of, "By the way,

10   whenever anything is difficult we fall back on

11   human rights" -- I think is further confusing

12   what human rights are and aren't.

13        In terms of government, I think if the

14   government really believes in the Human Rights

15   Act then it has to start applying it and

16   actually acknowledging that some of its

17   services do not yet meet people's basic human

18   rights and do not support them, and actually be

19   prepared to put money into solving that

20   problem.   If we are talking about minimum

21   entitlements in social care, then we have to

22   have the human rights of these individuals as

23   our standard before we have resources offered

24   and that would be a clear indication that human

25   rights were a serious part of life.

 1            MS O'LOAN:   I think that's very useful.

 2     I'm sorry we haven't got more time to talk to

 3     you.

 4   MS ARDILL:    Could I make one final point, which is, as

 6     a Commission, obviously your remit extends

 7     wider than just the European Convention, it

 8     extends to other human rights as well.     We are

 9     beginning to recognise for ourselves the

10     importance of other human rights and we are

11     exploring at the moment whether there might be

12     the possibility to work with international

13     colleagues to support the development of an

14     international convention for the rights of

15     older persons.      But coming back to the domestic

16     setting, more immediately the government is

17     reviewing the national strategy for an ageing

18     society and we are calling for it to embed into

19     that national strategy the UN principles for

20     older persons, as has happened in Wales with

21     the Welsh strategy.     So we would hope that is

22     something --

23            MR MASSIE:   If you go to the right of

24     older persons -- which I would agree with

25     personally, but is, behind that, the belief

 1   that strand-specific stuff is not important?

 2   If you are going for an older person's

 3   convention, it suggests you still believe in

 4   strand-specific legislation, et cetera, whereas

 5   the equalities bill is trying to break that

 6   down, so I'm just trying to tease out exactly

 7   where is your position.

 8        MS JOPLING:   I believe in the equalities

 9   bill because I think that's a useful framework,

10   but I do think that the idea that now is the

11   time to airbrush over strands is completely

12   wrong, particularly for the Commission which

13   has not yet developed its understanding of age

14   discrimination as an individual form of

15   prejudice and discrimination.    It's not the

16   time to airbrush over the top.

17        MR LISHMAN:    Is the position is different in the

18   context of a democratic country with an

19   established system of law.    When you

 2   are talking about the membership of the UN --

 3   you've got the universal declaration from

 4   San Francisco, you've got your starting point

 5   in the UN, you could not simply transfer that into

 6   a convention.   Look what's happened with the UN

 7   Human Rights Commission,; you can't turn that

 8   into a convention which has any degree of

 9   enforceability in Member States in the way in

10   which you have been able to do with specific

11   conventions.    If you could do that, if you

12   could build on Eleanor Roosevelt by saying:

13   the universal convention will apply and when

14   accepted will have the force of law amongst
15        Member States, that would be a wonderful thing,

16        that would be preferable, as the Equalities Act

17        is here.    It just doesn't apply in a UN

18        context.

19               MS O'LOAN:   That's all very helpful.

20        Thank you very much for coming, thank you for

21        your very clear statements and thank you for

22        your submissions.    Thank you very much indeed.

23   (9.55 am)

24                   (The interview concluded)

                TRANSCRIPT 24.10.2008
    1                                  Friday, 24 October 2008

    2     Interview with Sir Hugh Orde, Sir Desmond Rea,

    3         Mr Keir Starmer and Mr Duncan McCausland

    4   Police Service Northern Ireland amended transcript (10.00 am)

    5             MS O'LOAN:   Well, I would like to say

    6        thank you very much for coming in such numbers,

    7        I didn't actually expect to see Duncan too.

    8             MR MCCAUSLAND:   I will go if you want!

    9             MS O'LOAN:   The Human Rights Inquiry, on

   10        which Sir Bert Massie is one of the

   11        Commissioners, and I am chairing the Human

   12        Rights Inquiry for the Equality and Human

   13        Rights Commission, is an inquiry that extends

   14        to only England and Wales.   My reason for

   15        suggesting to my colleagues that we ask you to

   16        come and give evidence is that you are the only

   17        organisation I know which has made a serious

   18        attempt -- because you have a statutory

   19        obligation to do so obviously, but it has also

   20        been more than statutory, I think, it has been

   21        hearts and minds stuff.   Given the new

   22        obligations on the police forces here to do

   23        what you have done, I thought it would be very

   24        useful if we could learn from your experience

   25        and that's why I asked you to come and that's

 1   why I am particularly appreciative because you

 2   are out of jurisdiction.

 3           SIR DESMOND REA:     We were very pleased to

 4   come.

 5           MS O'LOAN:   This inquiry is to identify

 6   the extent of human rights in England and

 7   Wales, to identify the barriers that exist and

 8   how people have found their way around those

 9   barriers and to find ways forward and positive

10   actions by various governmental agencies, and

11   our particular focus this morning is obviously

12   policing.

13           I would say to you that one of the things

14   that has interested me enormously is that in

15   all the evidence we have received, there has

16   been very little criticism of police failure in

17   human rights terms.        There has been huge

18   criticism around refugees, asylum seekers and

19   illegal immigrants, and the police are involved

20   in that, but when you take it out of that

21   context we have heard very little.        But one of

22   the things we have learned is that people here

23   do not know what human rights are about.

24           You have a right to privacy, and if you

25   wish to give evidence in private, please

 1   indicate that to me and we will go into

 2   private, but you have indicated that you are

 3   prepared to be recorded and we are being

 4   recorded, so if you could explain abbreviations

 5   or acronyms if you use them.     If you want    us

 6   to repeat our questions or clarify them please

 7   ask us to do so.

 8        It is my normal practice for me to invite

 9   witnesses to make a two minute statement about

10   their organisations before we start, if you

11   would like to.     Some do and some do.

12        SIR HUGH ORDE:     I think it will take two

13   minutes, yes.    Generally, I think where we are

14   different in terms of police services starts

15   right at the very ? it goes back to Patten,

16   who embedded a human rights training regime on

17   policing from the word "go", so what it said at

18   that level was a clear message to everyone

19   coming into the organisation that human rights

20   is at the core of what we do.     I think the

21   consequence of that has been a level of

22   awareness in PSNI offers that this is actually

23   something that has been embedded in their

24   culture and their world and it's what we do on

25   a day-to-day basis.

 1        It also had an impact at the top of the

 2   organisation because all our planning was very

 3   much, again, based against human rights

 4   standards and there was a lot of effort put

 5   into making sure we were taking human rights

 6   seriously at the top end of our business.

 7        That left us a gap of the people who had

 8   a reasonable amount of service, but weren't of

 9   a senior rank which we had to deal with and I

10   think over time we have dealt with that,

11   certainly through the initial Course For All

12   and as they worked through the organisation

13   making sure that even firearms training -- that

14   a core part of the training was human rights

15   and minimum use of force.   So I think we have

16   needed time to get there, but we are now

17   probably the most aware of our responsibilities

18   around human rights of any police service and I

19   think our communities are far more aware of

20   their rights than communities in England and

21   Wales, and like I say that's with substantial

22   experience of policing in London.

23        The final point is it's not something you

24   can do by ticking a box, there's something

25   around consistency of pressure, and what police

 1   authorities are facing we have had for three or

 2   four or five years in terms of these reports.

 3   My only learning on that is if you do it, do it

 4   properly.   My only concern would be that police

 5   authorities may not see this in the same way as

 6   our police boards.

 7        MS O'LOAN:   Thank you very much.    Desmond?

 8        SIR DESMOND REA:    Starting from where we

 9   were, I think it's very important to remind you

10   that, if I look back and look at Patten, there

11   are three things that are important.     First

12   there is the importance of consent, including

13   a strong emphasis that a police service must be

14   representative of the community of which it is

15   part and quite plainly in Northern Ireland of

16   the then RUC’s full-time officers- we had a population

     then, as you know,

17   of 8.9 per cent which came from the Catholic/Nationalist

18   community against a population of 35

19   per cent of the population as a whole and

20   therefore you had Patten’s 50:50 recommendation.

21   Secondly, again in     recognition of the consent

22   principle there was a strong

24   emphasis --

25   on the human rights.      Thus the importance of the

 1   Code of Ethics. and the monitoring

 3   framework built on the Code of Ethics.

 4   Thirdly, there was Patten’s emphasis on policing with the

 5   community.

 6   So those are the three essential                 .

 7        The Policing Board -- in its determination to

 8   hold PSNI to account,     brought on board

 9   Keir Starmer QC, assisted by Jane Gordon to advise

10   on human rights.

11   They have generated the report just published,

12    and in addition ad hoc reports, for example, on

13   contentious parades.     That   gives you some background.

14        MS O'LOAN:    Thank you very much.      Keir,

15   given your very unusual role would you like to

16   say anything before we start taking evidence?

17        MR STARMER:     Just one or two things.     As

18   the Chairman has said I was brought in as an

19   expert consultant.     That obviously isn't

20   a requirement of the Act, that was a voluntary

21   act by the Board and I hope that allowed there

22   to be a level of expertise that gave the

23   process some confidence.

24        But I mean, I think the statutory duty

25   that was imposed on the Board at the time, the

 1   only public authority with that duty imposed on

 2   them to monitor the PSNI, now being rolled out,

 3   was absolutely critical.     In carrying out the

 4   audit that that was required and the adjustments

 5   that resulted from it has achieved far more

 6   than years of litigation.     I have litigated for

 7   and against the police for years, and I think

 8   critical to the way the Human Rights Act has

 9   played its part in Northern Ireland is that

10   duty.     It is the one thing that was slipped in

11   somehow, but has been incredible because it

12   allowed things to be done in an audit fashion,

13   without fighting in court, much more quickly

14   than it would have been done otherwise and with

15   a much higher degree of compliance than I think

16   even training would have achieved.     So I really

17   would highlight that and urge that some serious

18   consideration be given to a rollout of that or

19   a similar duty to other public authorities

20   because it really makes the difference.

21           The only other thing I think I would want

22   to highlight is the way in which the PSNI

23   responded to the work we were doing was very,

24   very positive.     We could have locked into

25   difficult battles on every issue.     We didn't.

 1   We had a positive dialogue and we achieved

 2   a great deal.     There was give and take but we

 3   achieved a great deal through that.

 4        MS O'LOAN:     Thank you very much, Keir.

 5        SIR DESMOND REA:     Can I say it just might

 6   assist that in that there is a briefing note

 7   that covers this and we are happy to give you

 8   that briefing note.     So I will give you my copy

 9   at the end, but we will send you individual

10   copies.   But I will give you my notes so you

11   don't need to take an extensive note on some of

12   the legal background, for example, on what was

13   said by Keir.

14        MS O'LOAN:     If you could email it, that

15   would be even more useful.

16        SIR DESMOND REA:     That's okay, no problem.

17        MS O'LOAN:     Then we have it in

18   a electronic form and it is adaptable.

19        MR STARMER:     Just one other thing, picking

20   up on your comment about people knowing what

21   their human rights are about, one thing I think

22   this process did achieve was a better level of

23   knowledge by the police officers of what was

24   required of them and we always said: you don't

25   need to know lock, stock and barrel, you don't

 1   need to know all the latest cases, you just

 2   need to know the decision-making process you

 3   need to go through.   What I observed was

 4   a growing confidence that once they understood

 5   the way it works and what factors had to be

 6   taken into account, it made the decision-making

 7   easier and there was confidence afterwards.

 8        MR MCCAUSLAND:   If I could just add to

 9   that in terms of what Keir is saying.     I am the

10   human rights champion for the Service and I

11   think two things that have happened is that it

12   has been operationalised and we have driven it

13   around training and, as you said in your

14   opening comment, there was some resistance and

15   there still continues to be elements of

16   resistance, but people see it now as a sword

17   and shield, they see real advantages and in

18   your former life as Ombudsman you would

19   understand that in terms of holding us to

20   a certain standard, and I think if it is driven

21   right from the top to the bottom it is a real

22   benefit for any police service to have.

23        MS O'LOAN:   One thing I would say is the

24   model of human rights leadership and the model

25   of integrating human rights, I think, by chief

 1   officers has been tremendously important and by

 2   the Board itself has been tremendously

 3   important in delivering these reports, which

 4   clearly are challenging for everyone.

 5        So then, I want to consider how you went

 6   about this process, if you don't mind, of

 7   integrating human rights considerations into

 8   your policy and practice framework.     One of the

 9   issues here in England and Wales is that the

10   language of human rights is regarded with

11   massive fear.   It's regarded with uncertainty

12   and they talk rather in what they

13   call: fairness, respect, autonomy,

14   dignity -- I've lost the last one, but anyway.

15   They talk in those terms, which do not in my

16   view articulate what human rights is about and

17   there is a resistance, even in government

18   departments, such as the Ministry of Justice,

19   for the use of explicit language.     So, for

20   example, if I take you very briefly to the NHS

21   draft constitution there is nothing in that

22   about human rights at all, and yet it is

23   a constitution for the delivery of health

24   services.   You had to deal with the specific

25   language, I think.   You made a conscious

 1   decision to make the language part of the

 2   process.   I would like you to tell me for the

 3   record how you went about it and give me a few

 4   specific examples of where the Act changed

 5   policing practice.

 6        SIR HUGH ORDE:   Well, I will ask Duncan to

 7   do the specific examples.   At the top end

 8   planning was fundamental.   I think the first

 9   point was when I took over, one of the first

10   things I said was that there is nothing in the

11   human rights legislation that should be seen as

12   an impediment to policing, and that has to be

13   very clearly stated right from the word "go"

14   because the experiences of UK forces -- some of

15   the training courses were saying "the problem

16   with human rights" and it is a mind set.     So

17   the top of my list was to send a very clear

18   message that this was (a) going to happen, and

19   (b) would not prevent people getting on with

20   their job.

21        At the bottom end in terms of our policy,

22   one of the still extant, or outstanding really

23   rather, recommendations, which is a cause of

24   some frustration to me and I know to Jane Gordon and

25   certainly Keir, was we had to review every

 1   policy against the human rights standards and

 2   redraft them.     To do that properly has taken

 3   far longer than we were hoping, but we are

 4   determined that it is sorted by the end of

 5   January next year.

 6        MS O'LOAN:     I see that you got to 49 out

 7   of 50.

 8        SIR HUGH ORDE:    49 out of 79, I

 9   think -- well there's policy and guidance.        We

10   are about 100 light on guidance and about --

11        MR MCCAUSLAND:    17 to do on directives and

12   100 to do on the other.

13        SIR HUGH ORDE:    But we have far too much

14   policy, it's far too precise, and I think the

15   example I would give, the Code of Ethics, it

16   replaced an awful lot of very detailed

17   disciplinary behavioural codes with a set of

18   principles which are human rights compliant,

19   and it is a far more effective product as

20   a consequence of that and is actually far

21   easier to train, because you are training

22   people to deal with themes rather than specific

23   examples.

24        In terms of examples, Duncan, you've got

25   loads probably, so just a couple.

 1        MR MCCAUSLAND:   A couple very quickly.    I

 2   think the emphasis was put on the language that

 3   we used words like proportionate, appropriate

 4   and necessary and we drove that to the heart of

 5   the organisation and at every rank we were

 6   asking people when making decisions were they

 7   appropriate, proportionate and necessary.

 8   (inaudible) how we planned and managed firearms

 9   operations, how we made those decisions in

10   terms of our tactics, the use of AEPs and baton

11   rounds and the adjustments we made in terms of

12   needing to protect children and young people;

13   the discussions recently about Taser, Keir

14   might want to comment on that specifically; the

15   introduction of specific community consultation

16   processes before and after and even during

17   operations to ensure that we were reflective of

18   the needs of the community.   Also taking on

19   board in the planning exercise in the scenario

20   base the human rights of our officers and

21   ensuring that we were reflecting that and I

22   think the last point I would suggest would

23   probably be the scenario planning that we went

24   through, planning the scenario against the

25   human rights standards that we were supposed to

 1   meet prior to major operations, and that

 2   allowed, or in effect directed, our operational

 3   officers when they were on the ground to make

 4   key decisions.   Keir, do you want to comment on

 5   the Taser?

 6        MR STARMER:    I will comment on both

 7   aspects if I may.   I think you tend to get

 8   either the loose ambiguous phrases such as you

 9   identified, Nuala, or you get detailed,

10   technical and legal approaches and people fear

11   the second unless they truly understand it and

12   even those who are (inaudible) don't very

13   often, so they seek refuge in the first.      But

14   once you talk about fairness in its general

15   sense, it means so many things to different

16   people, it doesn't help you as a yardstick for

17   the compliance with the Human Rights Act.      So

18   what we tried to do with the PSNI, and in fact

19   earlier with the rollout of the Human Rights

20   Act back in 1998 to 2000, was just to reduce

21   the concept to a series almost of checklists.

22   We did this for magistrates in the first place,

23   which is just identifying which right is in

24   play, nothing more elaborate than that, then

25   ask yourself the question: what sort of a right

 1   is this?     Am I talking about an absolute right

 2   or a qualified right?         Then understand the key

 3   questions you have to ask depending on which

 4   categories it is, put it on a sheet of

 5   A4 -- magistrates used to have a laminated

 6   thing they put under their desk -- and use that

 7   as your template.        It works so much better than

 8   the loose language or technical stuff which

 9   people get into, you know: have you seen the

10   latest case of X from Strasbourg?         If human

11   rights becomes complicated it will never, ever

12   work.     So I think that was critical.


16           MR MCCAUSLAND:       That's why the Code of

17   Ethics as Hugh as identified is a much more

18   useful document than any other.

19           MR MASSIE:    Did you come under pressure to

20   go to softer language and to use that?

21           MR STARMER:    No.

22           SIR DESMOND REA:      Except from the Board.

23   The board did encourage that it should be

24   user-friendly.

25           MR STARMER:    When you say "softer

 1   language"?

 2        MR MASSIE:     I am thinking about words like

 3   "fairness" which I indicated begs definition.

 4        MR STARMER:     We never got any pressure to

 5   go to the loose and ambiguous language and it

 6   wouldn't have been helpful.        In

 7   Northern Ireland and everywhere, if you simply

 8   use words like "fairness" then you can't

 9   determine between competing interests, as

10   everybody knows, because there's no way

11   forward.     So we did stick in that middle

12   ground, if that's the right thing, but I do

13   think that's so important.

14        MS O'LOAN:     Yes, indeed.        Just while

15   I think about it, if you could possibly send me

16   a copy of -- have you agreed your new Code of

17   Ethics?

18        MR MCCAUSLAND:     Yes, it is here for you.

19        SIR DESMOND REA:     We hope to carry less

20   baggage back!

21        SIR HUGH ORDE:     Sorry, there is one other

22   point that I thought was critical and of course

23   is a recommendation.     The availability of -- if

24   it does get complicated, which I think Keir's

25   point is absolutely right, keep it simple, we

 1   have a human rights lawyer, or we did have --

 2   until he was stolen by someone just to my

 3   left -- a human rights training adviser and we

 4   are recruiting another one.     So if people have

 5   experts, they need those experts to go to

 6   because it gives them reassurance if they have

 7   someone to ask, because if they don't have that

 8   they will do something that doesn't work.

 9        MR MCCAUSLAND:     It becomes second nature

10   to do that, to have that lawyer there and

11   consider that issue and that's why I talked

12   about the operational aspect, once it becomes

13   that it is very simple, it generates itself.

14        MS O'LOAN:     You talk about your templates

15   that you devised.     I wonder if you would be

16   prepared to share just one of those templates

17   in terms of --

18        MR STARMER:     I've got several that I have

19   done.   Not only with the PSNI but generally.

20        MS O'LOAN:     That would be useful if you

21   felt able to send us --

22        SIR DESMOND REA:     Can I say something

23   about Taser?

24        MS O'LOAN:     Yes, and I will ask you

25   a specific question if I may on this general

           1        issue.     So you talk about Tasers.

           2                SIR DESMOND REA:   I think the Taser

           3        example is an important one, because it would

           4        be true to say that the Board didn't

           5        necessarily see eye-to-eye with the PSNI in

           6        respect of Taser.      The Board used its human

           7        rights advice to clarify its mind in terms of

           8        the human rights dimension regarding the use of

           9        Taser.     We also, as a Board, insisted on a full

          10        EQIA before we made a final decision in respect

          11        of Taser and I believe the advice that we received

          12        from our human rights advisers is good advice.

          13        I think the Chief Constable would concur with

          14        that.     I believe that it sets a model for

          15        others elsewhere, but it is interesting that,

          16        having pursued that, and we      only took the

          17        decision two or three weeks ago to -- the

          18        Board considered that the Chief Constable’s operational
decision -- was the

          20        correct one, but that it was important that

          21        what was laid down in the Board’s advice, which has

         22        been accepted by the PSNI, is adhered to.          Perhaps
23       Keir could comment on that.

          24                MR STARMER:   Just on that and one other

          25        point, Duncan mentioned expert legal backup and

 1   I do think that's really important, but I think

 2   it's important not to have too much reliance on

 3   it.   If you are really going to change the

 4   culture of the organisation you need officers

 5   who are confronting different situations on

 6   a daily basis to have the confidence to do it

 7   and not just pick up the phone to a lawyer to

 8   get advice.   So, you know, if it's going to be

 9   everyday policing it has to be something they

10   have to have the confidence to do without

11   backup, that's how you get the cultural change

12   and that's why we were keen to keep it at that

13   level.

14         MR MCCAUSLAND:   That's what I meant.

15         MR STARMER:   That's what you meant, but

16   both for the PSNI and elsewhere that's

17   critical.

18         As for the decision-making public order

19   policing and Taser, I would identify I think

20   the public order policing probably changed more

21   than any other, because you had the obvious

22   competing interests when a parade was due to

23   take place.   The Human Rights Act allowed

24   police officers to identify what those

25   competing interests were in a sensible way and

 1   to work out how to resolve those competing

 2   interests, and that's not easy, and to do it by

 3   going through relevant factors and identifying

 4   whether they are proportionate and necessary.

 5        Now, I think, rolling back, as it were,

 6   ten years, in the old days a police officer

 7   would have been told: you can make any

 8   decision, as long as it's not so unreasonable

 9   that no reasonable person would have done it.

10   I wouldn't have known what to do if somebody

11   told me that.     So the broad Wednesbury test is

12   swept away and you have something that's much

13   more operationally workable and I think the

14   Human Rights Act has made a real difference in

15   that area of the PSNI's work and other areas in

16   other public authorities where the same

17   decision-making has to be made.

18        MS O'LOAN:     I think that's very helpful

19   and, reverting to my former occupation, I seem

20   to remember orders for -- planning orders where

21   you would have specifically addressed the

22   rights so the actual wording of the rights

23   would be part of the decision process.

24        MR MCCAUSLAND:     It is embedded in standard

25   policy and it is now looking at best practice

 1   across the world.    We are now advising the

 2   Boston police department, we are advising

 3   a number of European forces in terms of public

 4   order and human rights, and I have to commend

 5   the board, and I do believe that when they have

 6   told many colleagues to actually have an

 7   independent oversight of major operations which

 8   potentially could be critical incidents, that

 9   is something that has to be commended and has

10   to be accepted and taken forward.    In fact

11   we've discussed this with Bill Bratton, just

12   before he had McArthur Park, and if you

13   remember you were -- you commented on that and

14   he sort of pooh-poohed it and within weeks he

15   had McArthur Park and he came back saying he

16   wished he had done that.

17        MR STARMER:    But just going back to Taser

18   as well, I think the Human Rights Act was

19   critical in the decision about Taser for

20   a number of reasons.    But if you hadn't had

21   a human rights yardstick, you would have ended

22   up with anecdote versus anecdote which takes

23   you nowhere and to say, "There is a test, let's

24   identify what it is", and then hold the police

25   to that test was a far more useful way forward.

 1   It allowed the Board to take a really strong

 2   line on this: this is the standard, this is the

 3   test, this is what's required substantially and

 4   procedurally, in a way that other arguments I

 5   think would have just led round and round

 6   inevitably.

 7        MS O'LOAN:   Thank you.

 8        Sir Desmond, if you could explain really

 9   for the record how you went about setting up

10   the framework to monitor compliance.

11        SIR DESMOND REA:   Basically, in terms of

12   the Code of Ethics and the areas that were

13   shown there and the various sections of it,

14   part of it flowed from that.   The framework is

15   very much the remit of what policing

16   encompasses and

17   if you look at the chapter headings of the most recent

18   annual report, they flow naturally from that.

19        So what was important was to move from the

20   Code of Ethics based on the human rights

21   legislation as well, moving to the monitoring

22   of the compliance, the involvement of the

23   Board's Human Rights and Professional Standards

24   Committee as   part of its remit, the     part that

25   related to the work that the Ombudsman’s Office, which was

     formerly your responsibility   did, and

 1   I think that we also pushed       --

 3   into some    areas of policing,      that some

 4   people might have said, "Oh,      you should

 5   stand back from", for example the area of

 6   covert policing – which     you might

 7   wish to talk about.     The latter     demonstrated a

 8   growth of trust     over a period of years       between

 9   the PSNI and the Board and also, incidentally,

10   between the PSNI and the Security Service and

11   the Board.    I don't think any of that would

12   have happened if we hadn't, on the one hand,

13   pushed at the boundaries, but equally

14   important,    the

15   openness of the Chief Constable

16   .   I believe that that

17   trust has not been broken.


25         MS O'LOAN:    Thank you, that's very

 1   helpful.


 5          MR STARMER:    I think that's right.   It was

 6   important for us to focus on the fact the

 7   standards had to come from the Human Rights

 8   Act.    There was pressure to take on board other

 9   standards and we had to be really careful to

10   say "we are sticking to those standards".

11          MS O'LOAN:    What sort of other standards

12   were you under pressure to take?

13          MR STARMER:    Sort of mission statements of

14   various bodies, the particular positions they

15   took on particular issues, which undoubtedly

16   for them reflected the human rights belief or

17   standard that they had set for themselves.       We

18   had no problem taking on board other

19   international human rights standards where the

20   European Court had incorporated them, but it

21   was external to that.

22          Then the next job which I do think is

23   vital to the process, and would be vital to any

24   other public authority going through the same

25   process, is to convert their standards into

 1   meaningful benchmarks.   So we converted all of

 2   the European Court case law into -- so we would

 3   have something on training on policy so that

 4   you could understand how it had been applied,

 5   rather than "These are the Article 8 standards,

 6   these are the Article 6 standards", which are

 7   not that helpful in the exercise.   That allowed

 8   a thorough audit to take place.

 9        As the Chairman said, probably the most

10   important thing we ever did was to invite the

11   police to respond to each of our

12   recommendations with a programme of action,

13   because that set in place a proper dialogue

14   where we would know -- they didn't have to

15   accept our recommendations, but they had to

16   explain whether they were accepting them and,

17   if not, why not.   Because we had had a positive

18   dialogue, most of the recommendations were

19   signed off and most of the failures were down

20   to an overambitious response from the police as

21   to how quickly they could do things, rather

22   than an unwillingness to actually comply.     It

23   also allowed a degree of trust to be build up.

24   I mean, one of the remarkable things was that

25   during the time I was in post, I was not denied

 1   access to a single officer or document,

 2   including high level intelligence and, thus, I

 3   could be confident, and that was a real

 4   tribute -- that was a risk and it showed the

 5   level of engagement.    But it is a risk that

 6   paid off, because it meant we could go forward

 7   sensibly, rather than sitting at arm's length

 8   slugging it out.   That made a real difference.

 9        SIR HUGH ORDE:    I think absolutely

10   critical and, again, it requires the chief to

11   say again: this is going to happen guys and

12   don't come up with alibis all the time.     At the

13   end of the covert business which, as you know,

14   is one of the critical areas in

15   Northern Ireland, it's back to allowing it to

16   happen, taking a risk, and I think that may be

17   difficult in some other places.    I think people

18   have huge -- what people see as operational in

19   my world, in England and Wales is more tightly

20   defined than what I see as operational, but I

21   am having to talk about it and I think that

22   will be a challenge.    So it is utterly

23   dependent on the quality of individuals you let

24   into your world and trust built up over time.

25        On the programme of action I think, just

 1   to reinforce a point, here it was a two-way

 2   process and sensible debate led to a small

 3   number, and it would be a handful on each

 4   report, being withdrawn, but again there was an

 5   explanation as to why that took place.    So in

 6   other words we soak up professional stuff that

 7   needs to be amended, so it had to be a two-way

 8   process.

 9        MR MCCAUSLAND:    And by lunch time of the

10   report being launched we had already actioned

11   this year's programme of action and we set

12   ourselves a tight timescale to have it produced

13   and monitored by the board and we are more than

14   happy to share that with you when it is

15   published, which will be shortly.

16        MR STARMER:    But I think Hugh has made an

17   important point.    Inevitably when you make

18   a recommendation, whoever is responding gets

19   half-way through and works out it is much more

20   complicated, and there was an willingness on

21   our part, for example to, adjust and

22   accommodate subsequent developments.

23        MS O'LOAN:    So flexibility and common

24   sense?

25        MR STARMER:    Yes, rather than saying,

 1   "That is the recommendation and time line".

 2        SIR HUGH ORDE:   And don't set yourself up

 3   to fail.   There was a huge brief of work and we

 4   underestimated it.    We said, "We can do that".

 5   If there's learning for other places, it is to

 6   agree a sensible timescale with the oversight

 7   authority, so what you can deliver you do

 8   deliver, but you deliver it.    If you look at

 9   147 to indicate, not counting the new 30, I

10   think we have four outstanding, because

11   otherwise it just becomes -- you know, you have

12   to have an end game to this and you have to

13   deliver it and that's why this -- the programme

14   actually is important because it focuses minds

15   and identifies who is responsible for

16   delivering each recommendation.

17        MR MCCAUSLAND:   Just to give exact

18   figures, there are 31 out of 50 policy

19   directives completed and 170 out of 270

20   procedures, and we have promised to have the

21   rest completed by Christmas, but as Keir says

22   this is a living document that can change if

23   events change, or there is directions or

24   different things happen in the courts in terms

25   of reflecting this and that's the important

 1   thing.

 2        SIR DESMOND REA:     But I think probably

 3   from the Board's perspective one of the

 4   important things     has been the change in

 5   culture of the oversight.     Patten was very

 6   clever, he built in this oversight commission

 7   which, as the name implies, was to oversee the

 8   implementation of the 175 recommendations and

 9   that culture moves on.     Even if you think in

10   terms of the territory of your old Office’s work, your

11   regulation 20 reports, the recommendations, the

12   feedback the police had to make to the

13   Committee, and the Committee to you as to what

14   its recommendations were regarding the

15   implementation.     I think that that was very

16   important in terms of process, that build-up

17   and the use of the feedback, and the feedback

18   within time, and if it wasn't happening why it

19   wasn't happening.

24        MS O'LOAN:     I just want to develop

25   a little bit the things you were all saying

 1   about this template and framework within which

 2   police officers now make decisions which are

 3   human rights-based decisions.   Did you

 4   experience difficulty where they were balancing

 5   those competing rights and you referred,

 6   Duncan, to the parades' competing rights, but

 7   there would be rights between what we would

 8   describe as victims and perpetrators.

 9        MR MCCAUSLAND:   I mean at times there were

10   conflicting rights and, as Keir rightly said,

11   that's where we potentially went and consulted

12   our legal advice to ensure that we were

13   potentially being given the best advice

14   possible, so we could make the most appropriate

15   and proportionate decision.   That's why I came

16   back to a point I made earlier about the sword

17   and the shield, because as Keir rightly said,

18   by being able to show the transparency of the

19   decision-making process then if we were open to

20   litigation from victims or offenders we could

21   turn around and say, "This is the process we

22   went through", and I think that underlined the

23   transparency element that Patten talked about,

24   that if it can be put in the public domain, if

25   it is in the public interest, I think that's

 1   where it benefited on the operational aspect

 2   that we felt more certain as to what we were

 3   doing because we had a framework to follow, and

 4   something that was backed up by, in effect,

 5   legal opinion and decisions through the Human

 6   Rights Act itself.

 7        MS O'LOAN:    Can I come specifically just

 8   to the Chief Constable and one point on that.

 9   You said, Chief Constable, that nothing in

10   human rights is an impediment to policing in

11   your evidence.    Has it been very difficult to

12   get to that stage where you can say that?       Was

13   it an impediment as you developed the processes

14   and the learning and that seniority?

15        SIR HUGH ORDE:    I said it before.   My

16   experience of elsewhere was it was

17   perceived -- the standard police response

18   was: this was a problem.    When it came out,

19   this is how cops think, it's not around, "We

20   are not going to do it", it's around, "This is

21   going to" -- their perception was it was going

22   to impair our ability to perform and there is a

23   chance that bad people could get through

24   (inaudible) and any police officer that reads

25   this will struggle to say, "This is stopping me

 1   doing stuff".   What it does do is ask

 2   questions, and it is interesting, the latest

 3   report has flagged up what a police officer

 4   would say is a statement of the blindingly

 5   obvious: we are using section 44 more.     Now,

 6   that's because the threat has gone up more, but

 7   it raises a series of questions around

 8   particularly some of the travelling community

 9   in this regard, which we have to then look at.

10   It doesn't stop officers stopping people,

11   because they think it is a way of keeping other

12   people safe and preserving their rights to

13   life, so I think that's how you do it.     You

14   keep banging on about it and saying, "This is

15   okay, guys, we can deliver this and it will

16   make us better not worse".

17        Two, you sell the protection it gives the

18   officer.   If you look, certainly, at the top

19   end public order stuff, it has protected

20   officers and protected the organisation from

21   litigation, which is Keir's point.     If you do

22   that, police being generally pragmatic people

23   start to realise this is a good thing and will

24   not cause a problem.   You will always get some

25   people who see this as a     nuisance because it

 1   is potentially bureaucratic, and I think there

 2   are some issues around bureaucracy, I don't

 3   think you have to record everything we do to

 4   prove it later in life and I think, if there's

 5   an issue, it's that.    It's around the police

 6   service generally tending to now look more

 7   behind itself than forward, because it sees

 8   public inquiries, it sees quasi-legal processes

 9   of investigation post-event, with hindsight,

10   et cetera, et cetera, and it is continually

11   policing in a defensive way rather than

12   policing in a way that makes communities safer.

13   That's balancing act, and that's giving our

14   front line the confidence to make decisions

15   against a framework rather than against chapter

16   and verse.

17        SIR DESMOND REA:    It's interesting that in

18   April 2008 the PSNI commissioned and received

19   a report on the operational issues regarding

20   human rights and their practical application

21   within PSNI; and 37 focus groups

22    -- with 229 participants met -- and

23   among the findings are that human rights are

24   firmly placed at the core of the Service.

25   Officers considered that PSNI

 1    were putting human rights considerations

 2   at the centre of its event planning procedures

 3   et cetera.     Secondly, most officers are clearly

 4   aware of human rights issues as they affect

 5   PSNI and while they do have some concerns it is

 6   clear they are engaging with the issues.

 7   Thirdly,     they suggest that

 8   training should emphasise the concept of how

 9   human rights plays an important part and

10   reinforces officers' key enforcing obligations; and

11    they     recommend that the use of case

12   studies would be helpful in illustrating where

13   human rights have assisted frontline policing.

14   Finally, they emphasise there is a lack of

15   training or briefings about officers' own human

16   rights.     Concerns were also expressed about the

17   personal safety of individual officers in

18   certain instances.

22           MS O'LOAN:   Can I just read into the

23   record, before you go there, just for the

24   people who need to look at this, page 21 of the

25   Human Rights Annual Report 2008 refers to that.

 1        MR MCCAUSLAND:   We actually axed that

 2   report, it didn't come from this, it came from

 3   a recommendation from the oversight

 4   commissioner to link it together and we are

 5   taking that forward now in relation to

 6   training.   Because, coming back to the point

 7   you asked the chief constable, the critical

 8   issue is constantly refreshing the training

 9   which the board have asked us to monitor and

10   report on, and that's a critical element in

11   terms of the cultural aspect embedded right

12   through into the organisation.

13        MR MASSIE:   Sir Hugh, I was interested in

14   what you were saying about how you changed the

15   culture in the police service and this is

16   something I would like to go back to.

17   I consider that most people in the public might

18   perceive there might be a tension in a service

19   like the police in some of these principles.

20   Do you think anything which you have learned

21   could actually have application to other

22   services where our evidence suggests that the

23   human rights principles are not embedded, but

24   where we think they might be, for example the

25   health service and social care, or for example

 1   a whole range of services where you think they

 2   would be more cuddly about human rights and

 3   that's not our experience.     Are there any

 4   lessons which you think those services can ...

 5        SIR HUGH ORDE:     Well, we are not cuddly

 6   about human rights.     I think that's an

 7   important right.    I think if you allow people

 8   to think of it as some sort of flaky, liberal

 9   idea, people don't take it seriously.       So I

10   think the message I was saying was (a) this is

11   serious and it is important, and (b) it won't

12   stop you doing the job you joined to do.

13   Police officers join, if I was to generalise,

14   to protect other people.     So once you get that

15   out of their minds in the first place -- but it

16   is not a science, there's no silver bullet on

17   this, or magic bullet.     It's around continually

18   talking about it.     It's around making sure

19   that, you know, it's around conversations at

20   every level of your organisation and that's not

21   in necessarily an organised way.

22        We did the Course For All, which I think

23   was important.     I did it, I made myself do what

24   everyone else had been told to do, so that was

25   good learning because it allowed officers to

 1   vent steam in a controlled way where trainers

 2   had been trained properly to deal with that

 3   angst and that pain, and it was not just human

 4   rights, it was the pain of changing.        But all

 5   of that was mixed in together.     The learning on

 6   that was: make sure your trainers have support,

 7   because it is really tough work, because they

 8   were doing this day in and day out with people.

 9        I then think it is not a one-off event, it

10   is continual.     That's why this is important,

11   because it is annual and it changes and moves

12   on and actually it is getting thinner.        You may

13   not believe it, but it is, and the number of

14   recommendations are dropping.     So it's

15   something you see as a tangible shift in your

16   organisation.

17        You've got to face up to the issues when

18   you get it wrong.     If you do get it wrong you

19   say you got it wrong and you learn and move on.

20        MR MASSIE:     I am trying to get for the

21   record that if you looked at something like the

22   health service, although you think human rights

23   would be embedded but in fact they aren't, then

24   when do you need to concentrate all the stuff

25   top to bottom and do exactly what you are

 1   doing, because although obviously there is

 2   a big resource issue there, the output would be

 3   very well worth it.

 4        SIR HUGH ORDE:   The difference is we were

 5   funded.   Patten gave us access to an income

 6   stream, which no other force has, so there is

 7   a reality check around this.     So the Course For

 8   All was paid for in essence.     But I do think

 9   it's a big decision and you can do it.     I know

10   the health service is huge and the police

11   service is huge compared to us, but you have to

12   start somewhere and the learning we had was

13   that you have to keep it simple.     It's no good

14   going through case law.     Jordan and McKerr mean

15   nothing to your police cop, why should they?

16   But sell it to them as though it adds to their

17   world rather than distracts from it.

18        MR STARMER:   I think this opens up a

19   really important debate about embedding human

20   rights and that is whether you go for something

21   like the Course For All, which is a human

22   rights specific course, or whether you

23   integrate.   Frankly, I think the time for

24   a Course For All is over.     I don't think it's

25   that helpful to have separate human rights

 1   training, people don't respond to that, they

 2   don't understand it.     What you've got to do is

 3   to integrate, which is so much more difficult.

 4   That's why Piers(?) and I have got bogged down

 5   in the policy review, because it is much, much

 6   more difficult to do.     But if you can identify

 7   that and identify what parts of human rights

 8   law apply to what areas of the work you are

 9   doing and integrate that, it is so much more

10   effective.

11        We did public order training and when you

12   are talking to people who are going out next

13   week to do this and you say, "In your area,

14   this is what it means", they want to know.        But

15   if you sit them in a room saying, "Article 8

16   means right to privacy", et cetera ...     So I

17   think integration is the only way forward and

18   separate courses had their place ten years ago,

19   but ...

20        MR MCCAUSLAND:     You asked about the issue

21   of it being specific to the health service and

22   I would suggest that it may well be used,

23   a human rights framework, potentially to give

24   them the ability to have a proper consultation

25   with stakeholders and community engagement.

 1   That's one of the big significant things that

 2   we have found operationally in PSNI, that we

 3   now can talk to the community and understand

 4   the community's needs and it may well be that

 5   the health service addressing that potentially

 6   could use it as a benefit.

 7        MR MASSIE:    That's a perfect link into our

 8   next question, actually, which was about

 9   stakeholders.     One of the things I am

10   interested in is how you protect sometimes the

11   victims of crime certainly, but also people who

12   might well be in custody, but may have a mental

13   illness.   How do you cope with those tensions?

14   But also using outside agencies, how have you

15   actually built up those links so they are

16   strong, you trust them, they trust you, because

17   that doesn't happen a lot.

18        SIR HUGH ORDE:    I disagree slightly with

19   Keir on the Course For All.    I think you have

20   to make the training bespoke for the

21   organisation you are trying to turn around or

22   change, and I think in the context from the

23   change of RUC to PSNI and what all that meant

24   and new policing dispensation et cetera,

25   et cetera, I think it was very good to send an

 1   external message that this was going to start

 2   somewhere and it is going to start now.

 3   Equally it is an important internal message as

 4   well.     I accept entirely it is a blunt

 5   instrument, but I think what came from that was

 6   then the embedding of human rights principles

 7   in initial training, critically, but also every

 8   other course that was done.      So if you turn up

 9   to your firearms training, the first thing you

10   get is lecture in relation to human rights that

11   are relevant to if you get a gun out of your

12   holster.     It may well have moved on, I don't

13   disagree with that necessarily.

14           In terms of engaging stakeholders, I think

15   there are a number of things really.        One is,

16   identify the key groups and meet them.         It's

17   not rocket science, you know, independent

18   adviser groups across a range of areas are now

19   in our organisation, certainly around

20   disability, race, hate crime, the lesbian and

21   gay community, young people, you name it

22   we've -- to learn how we impact on them in our

23   day-to-day lives.

24           MR MASSIE:   Do those groups feed in

25   different things?

 1        SIR HUGH ORDE:     Yes, and in different

 2   groups are different problems.     So again if it

 3   is a tick box, "I've got an IAG, aren't

 4   I lucky", so what?    It has to be, "We have this

 5   particular issue, we need to set a group across

 6   the broad range of contacts we have, and maybe

 7   an NGO", they are quite important and we have

 8   plenty of those in Northern Ireland.

 9        SIR DESMOND REA:     It's interesting, we

10   launched the human rights report recently, and

11   in terms of the questions there was a

12   degree of criticism from the lesbian, gay and

13   transgender grouping, but it is difficult to generalize from

14    an individual's personal experience.

16   But what is important is that I went away and said

17   , “let’s

18   ask questions about the points     this man made and

19    how factually was it based.     Let’s

20   develop answers to

21   those questions, and then if there are more

22   general issues that flow from that discussion,

23   we would seek to, , deal with them.

24        Also, from the Board's perspective, we

25   have, as a Board, in terms of community

 1   engagement, engaged with various

 2   groupings -- the elderly, women, young people,

 3   et cetera, the lesbian and transgender -- and

 4   we brought ACC McCausland    into some of those meetings when

 5   he was ACC Urban to assist us

 6   .   So that doesn't answer your question about

 7   the health service, but I suppose one of the

 8   issues in there really relates to respect.

10         MR MCCAUSLAND:   They are not just talking

11   shops, we use them as means of checking out our

12   policies.   For example, I've just established

13   a children's forum with the Children's

14   Commissioner and the Children's Law Society so

15   that, in effect, they can come every three

16   months with a clear agenda of issues of concern

17   that they have and we then will openly answer,

18   or try to show them what our policies are and

19   learn from them in terms of potentially making

20   changes.

21         If they are, just as the chief constable

22   says, a simple talking shop, people will get

23   very tired of them and won't turn up.    They

24   have to deliver a difference on the ground and

25   it is a very useful way potentially of testing

 1   the vulnerable groups and how our practices

 2   are.     For example, you asked a question about

 3   mentally ill patients within custody and then

 4   using that to potentially adjust our principles

 5   and our procedures to reflect the concerns that

 6   could take place on a Friday night in a custody

 7   suite anywhere in the provinces.

 8          MR MASSIE:   That's the sort of case you

 9   would give to your disability group: this is

10   how we handled it, could we have got it better?

11          MR MCCAUSLAND:   Correct.   We ask for the

12   future or we learn from cases that have taken

13   place.    With statement 20, reflections come

14   through from the Ombudsman, and we would just

15   adjust and review our policies in terms of the

16   Ombudsman's recommendations and the Human

17   Rights Act and what these groups were telling

18   us we should potentially consider, but the

19   Human Rights Act gives us a framework around

20   which to work.

21          MR MASSIE:   I think a number of

22   organisations would think it has been much more

23   difficult to imagine a police service than it

24   is in their own public service (inaudible)

25   obviously helpful is actually, if you can do

 1   it, then really these organisations should be

 2   able to do it.

 3        MR MCCAUSLAND:     It should be easier for

 4    them.

 5        MR MASSIE:     So the question we have to ask

 6   is: why   haven't they done it?

 7        SIR DESMOND REA:     I should say that what

 8   we have increasingly done is create

 9   partnerships, , with relevant

10   agencies, e.g. the Housing Executive because it is rare that

11   the problem is specifically a policing one.       The PSNI

13   and the Board encourages this and we have had

14   a number of meetings.

15        MR MCCAUSLAND:     But the one final point we

16   would make, which should be easier for our

17   colleagues in England and Wales, is that they

18   have the requirement to have these

19   partnerships.     In Northern Ireland, as you

20   know, Nuala, we do not have the law

21   actually -- the Crime and Disorder Act, aspects

22   like this, requiring us to have these

23   partnerships.     We have to work even harder in

24   effect to build the partnerships up.

25        MR STARMER:     Just two very brief points on

 1   that.     One, local level outreach is very

 2   important.     One of the things that was very

 3   interesting, we went around all the districts

 4   and went through an agenda and at the end of

 5   that we said, "What are you doing locally?",

 6   and there were all sorts of initiatives that

 7   were very important.

 8           The second is publishing the policies.

 9   One thing we have said is, get your policies

10   out there so people understand what they are,

11   because there was a great tendency in the old

12   days to keep them hidden.       Have confidence in

13   them so people can download them and look at

14   them.

15           MS O'LOAN:    Can I first ask you, may we

16   take another five or ten minutes maximum?        Very

17   quickly, then, Keir, you suggested the need for

18   a specific statutory duty on public authorities

19   to compliment this human rights-based approach

20   and the Human Rights Act.       The Joint Committee

21   on Human Rights have suggested a similar

22   obligation.     The government say section 6 is

23   sufficient and we know that public authorities

24   really do what's measured.

25           MR STARMER:    The trouble with section 6 is

 1   you are hedging against litigation and

 2   everybody does it, let's be honest.     If you

 3   don't think there's going to be a legal

 4   challenge, you don't do it as thoroughly as if

 5   you think there is.     So it's piecemeal, it

 6   depends on where you are placed, who is likely

 7   to challenge you, et cetera, et cetera.       Of

 8   course section 6 is great in one respect, but

 9   it is also limited.     This permits a much

10   broader audit away from the court.     I mean I'm

11   a lawyer who thinks people shouldn't go to

12   court, frankly.

13        MS O'LOAN:     Okay, thank you.

14        MR MASSIE:     (Inaudible) Richards(?) and

15   the HRPA and the barriers you have found in

16   implementing.     So first of all, what were the

17   barriers and, even more importantly, how do you

18   overcome them?

19        MS O'LOAN:     You have talk to some degree

20   about the barriers, but if there's any

21   specifically?

22        SIR HUGH ORDE:     I cannot think of any

23   specific barrier that we came up against, in

24   that it was difficult -- it's bound to be

25   difficult, you've got an organisation of 10,000

 1   people, so it is easy to say and hard to do.

 2   Dissemination was firstly going to make a real

 3   difference.    My role, which I saw as

 4   a leadership role, was saying, "This isn't

 5   going to go away and it is important and it is

 6   not something to be frightened of".      If there

 7   has been barrier, work load has been difficult

 8   and sheer volume of change has been difficult.

 9   You know, we are hearing every policy was

10   difficult.    Looking at identifying what

11   training material we had was difficult, so it

12   focused minds in that way.    But I can't think

13   of any concerted effort by any group to prevent

14   it.   I think there were legitimate concerns in

15   certain areas, certainly around the secret side

16   of the business, which had to be dealt with.

17   I'm not sure that was a barrier.    I think that

18   was really concerns by very professional cops,

19   who were concerned about their business,

20   because by definition it is not something the

21   public will see.    But it was around looking at

22   the training materials for level of knowledge,

23   other reports available and that sort of stuff,

24   and you divide what they are doing up into bits

25   that you really need to be sure you are

 1   delivering in the right way on and you trust

 2   the people that are doing it.    I think there

 3   would have been huge barriers, frankly, if some

 4   lawyer who did not have the confidence of the

 5   cops was employed in doing it.     So I think if

 6   there's some learning it's around choose your

 7   people carefully.   But I'm just trying to

 8   struggle --


13        MR MCCAUSLAND:    Can I just say one thing

14   from an operational point of view.     I will be

15   straightforward and candid here.     There was an

16   element of skepticism and cynicism about, was

17   it just a box-ticking exercise and that was the

18   danger.   If it just became a box-ticking

19   exercise, people in effect would just go

20   through the motions.

21        Keir has watched operationally this in

22   live time over the last three or four years and

23   we could not have hidden or we couldn't have

24   portrayed this as a box-ticking exercise or

25   played something for him to assess and what

 1   I believe is that it became -- we were a risk

 2   averse culture, we do have elements of risk

 3   aversion in all public sector bodies, but I

 4   think the point the chief made is well made.

 5   If you hadn't got the right chief constable in

 6   position --

 7           SIR HUGH ORDE:     No, I told you to say

 8   that!

 9           MR MCCAUSLAND:      -- who embraced it

10   wholeheartedly with the policing board and was

11   prepared to drive it from the top right down it

12   could easily have failed.        It could easily have

13   failed and once people then embraced it and

14   realised, "This is a benefit to us", then it

15   started to become second nature, and I'm

16   talking about hard-nosed detectives or firearms

17   officers who were dealing with very difficult

18   situations who realised: this is something that

19   is of benefit to us and taking the risks and

20   explaining them.

21           MR STARMER:   Much more broadly on the

22   question of the barriers, I would answer that

23   with a single word: misconception.        That was

24   the real barrier.        It goes really back to what

25   you said, Nuala, in the first place, that

 1   people don't really know what human rights is

 2   about and that meant that initially police

 3   officers thought the Human Rights Act would

 4   stop them.   They would not be able to stop and

 5   search people or take them into custody,

 6   et cetera, so they were nervous about that.

 7   I mean, not in any derogatory sense but there

 8   was a misconception about what the Act would

 9   allow them to do.

10         But it is not just internally, externally

11   people have a misconception on what they are

12   entitled to expect on the Human Rights Act, so

13   you get people lobbying on parades, for

14   example, saying, "I'm entitled to this and that

15   and that's my human rights", and there was

16   a barrier finding their way through that to

17   a better understanding.    That has been the

18   journey and the process and that has been

19   hugely rewarding when the bits fall into place

20   and now the police will say, "Because of the

21   Human Rights Act, I can do X, or should we do

22   Y", rather than, "It's stopping me doing X and

23   Y".

24         MR MCCAUSLAND:   It became something rather

25   than being did or done to us, it was something

 1   we did with people.

 2           SIR HUGH ORDE:     Just a couple of things.

 3   Staff associations need to be engaged fully in

 4   this.     It's partly they feel the need to

 5   protect their people and certainly I think the

 6   fallout from the public order situations --

 7           SIR DESMOND REA:     They believe there is a   lack of

 8   training on their own human rights.

 9           SIR HUGH ORDE:     -- that was very much

10   around concerns around the transparency we

11   built into system.       They felt impacted on the

12   decision-making process around officers issuing

13   baton rounds in this case.        So it's not

14   a barrier but the learning is the more

15   engaged -- which of course now federations sit

16   in all the meetings, so there's something

17   around staff which people need to be aware of.

18   It is not a barrier but something that needs to

19   be handled.

20           MS O'LOAN:    Can I just ask two very quick

21   questions finally.       One is (inaudible)

22   specifically monitor human rights -- do you

23   think inspectorates generally monitor human

24   rights compliance?       Should they?

25           MR STARMER:    Yes absolutely.

 1         SIR HUGH ORDE:     Yes.

 2         MS O'LOAN:     The second one was, and again

 3   it is quite simple: Northern Ireland was in

 4   some ways way ahead of England and Wales on the

 5   human rights dialogue.        Do you think there is

 6   a need for a public articulation of the human

 7   rights dialogue at a high level in England and

 8   Wales?

 9         MR MCCAUSLAND:     Yes.

10         MR STARMER:     Yes.

11         MR MCCAUSLAND:     It's to address what Keir

12   said: the uncertainty and confusion about what

13   it means.   As chief just said, the staff

14   associations that you described needed to be

15   cuddled and needed it explained to them.

16         SIR DESMOND REA:       In respect of your first

17   question, I think that one of the learning

18   experiences of this for me has been the use of

19     our Human Rights Advisors       in a sense to perform some of

20   the functions of an inspector

23   The   fact that we     said to them, look at

24   that matter and come back with whatever you find, and they

25    did was of enormous assistance in the ad hoc

 1   reports.

 2        MS O'LOAN:    It would be my hope that your

 3   learning will move through ACPO ranks and

 4   through policing in England and Wales.

 5        SIR HUGH ORDE:     I think that's an

 6   interesting question.     We are sending one of

 7   these to all chiefs, because under the March

 8   legislation they are going to -- the

 9   interesting thing will be to see how it is

10   dealt with.

11        MR STARMER:    I've written some guidance

12   for them.

13        SIR HUGH ORDE:     Reassuringly expensive

14   guidance, I'm sure!     But I do think that's

15   important.    It will just be interesting because

16   I do think there's something about -- as

17   a chief -- you know "another oversight body,

18   another report", the danger is there are days

19   when you feel almost breathless with the amount

20   of oversight and it's how you make sure it

21   doesn't fall into that trap.

22        MR MASSIE:    It does seem to me, though,

23   that we can always look at the cost of these

24   things, and there is always a cost, but there

25   is an opportunity cost, there is a cost of not

 1   doing them.

 2         SIR HUGH ORDE:    There is a very real

 3   cost: litigation if you get it wrong.

 4         MR MASSIE:    There might well be, at some

 5   point, a chance to actually look at some of the

 6   research about not doing it and how much that

 7   costs.

 8         MR MCCAUSLAND:    But it is also the right

 9   thing to do.

10         MR MASSIE:    Absolutely.

11         MR MCCAUSLAND:    That's the reality of it.

12         MR STARMER:    But to be fair, if public

13   authorities all speak up on it and realise this

14   is a way to avoid litigation -- litigation is

15   enormously expensive.     Not just paying the

16   lawyers, but people have got to prepare to give

17   evidence, et cetera, et cetera, and it is all

18   a waste of time, because it is after the event

19   and the learning will be five years' down the

20   line, by which time things have moved on.        It

21   is difficult to quantify that, but when people

22   say "the cost" you really have to factor that

23   in.

24         MS O'LOAN:    Thank you very much indeed for

25   coming and coming in such numbers.     Thank you.

 1   (11.10 am)

 2                (The interview concluded)























              MR ANDREW DISMORE MP
               TRANSCRIPT 24/10/2008
 1                                      Friday, 24 October 2008

 2           Interview with Mr Andrew Dismore MP

 3   (11.25 am)

 4                MS O'LOAN:     Thank you very much for coming

 5        and thank you also for all the work you have

 6        done, because I think the JCHR has played

 7        a significant role.        We do find ourselves

 8        quoting the reports at very regular intervals.

 9        I'm sure you know Dr Nicola Brewer and I'm

10        Nuala O'Loan.        I am chairing the inquiry for

11        the Commission.        The purpose of the

12        investigation is to identify the extent to

13        which a human rights culture has been

14        identified in England and Wales, to identify

15        the barriers which people have experienced, to

16        identify good practice in terms of the way in

17        which people have addressed those barriers, and

18        to identify ways forward and action required.

19        This will also inform the Commission itself and

20        it's own strategy on human rights, and it's in

21        the process of formulating its strategy, so

22        this will, I hope, very much inform that.

23                You do have a right to privacy.     You've

24        already commented that you are happy to give

25        evidence in public, but if at any stage you

 1   would like to go into a private session, please

 2   tell me.     We have palantypist who will record

 3   your evidence.        If you don't understand our

 4   questions, please feel free to ask us to repeat

 5   them.

 6           It is my practice to invite my witnesses

 7   to make a statement of not more than two

 8   minutes, if they wish to do so, about the

 9   organisation they represent or anything they

10   wish to say.

11           MR DISMORE:     As you know I'm chair of the

12   Joint Select Committee on Human Rights.

13   I always put "select" in inverted commas

14   because people don't know what select

15   committees are, really.

16           To me, it was an eye-opener when I took

17   the job on.     It certainly wasn't something I

18   was expecting to be asked to do after the last

19   election, and I think what I found when I took

20   it over was symptomatic of the human rights

21   industry, if I can use that word -- not in

22   a pejorative way but for shorthand -- in that

23   it was very legalistic, it was, "the Del Monte

24   man says 'no' to everything and never says

25   yes", and although the members of the committee

 1   thought they had a lot of influence in

 2   Parliament, in practice they had very little.

 3   It's work, frankly, was, as far as the House of

 4   Commons was concerned, pretty well unknown.

 5        What I wanted to do was change all that.

 6   I think one of the problems with the Human

 7   Rights Act and human rights generally is it has

 8   become a prisoner of the lawyers, so I wanted

 9   to try and make it more accessible to the

10   public, to other Parliamentarians who are not

11   lawyers, but also to significantly increase its

12   influence in Parliament, through a number of

13   Parliamentary means.   And also to try and turn

14   human rights into a more positive thing, to

15   say, "Okay, you can't do this, but have you

16   thought about doing that?", and to look at

17   issues that were out with the traditional sort

18   of things that the human rights industry was

19   looking at, to get away from the concept it’s about

20   criminals and terrorists and to start talking

21   about human rights in the mainstream and what

22   it means to ordinary people.

23     I think we have largely made progress, the

24   first year was a real transition year and it

25   was very hard, but from then on I think that

 1   the members of the committee who were sceptical

 2   about that approach have been convinced that

 3   that's the way to go.     I have slightly adjusted

 4   my own position a little on some of the legal

 5   stuff we are doing, which I think, with

 6   hindsight, is essential but in a more selective

 7   way and I think the net result is we have been

 8   more influential, certainly in Parliament, than

 9   ever before and I would like to think that we

10   are starting now to set the agenda to the

11   outside world.     I think part of that is

12   building partnerships and I think we now have a

13   relationship with our NGO partners --

14        MS O'LOAN:     When you say "our NGO

15   partners", do you mean Liberty, or who are you

16   talking about?

17        MR DISMORE:     Well a variety of people.

18   Obviously on the civil and political rights

19   people Liberty, but going much more broadly and

20   as we start to branch out into the health care

21   report or disabilities, it's engaging with all

22   the NGOs that support the patient groups, for

23   example, the unions that represent health care

24   staff; a much more broad approach.     That, I

25   think has brought into play a lot people who

 1   previously either never thought about human

 2   rights, or saw them on the sidelines of what

 3   they were doing.

 4        MS O'LOAN:     Thank you very much indeed.

 5        Now, Jack Straw said in evidence to the

 6   JCHR that:

 7        "The Human Rights Act has shifted the

 8   balance from the state to the citizen and

 9   changed the behaviour of all public

10   authorities, in my view in favour of the

11   citizen.     It's terrific."

12        He did go on to say it's a nuisance,

13   however.     But I wanted you, for the record, to

14   tell us what your view of the current state of

15   human rights in England and Wales is.

16        MR DISMORE:     Well, I think that's what we

17   would all like to see.     Yes, the Human Rights

18   Act can be a nuisance, but an essential

19   nuisance, and when it is a nuisance it is for

20   good reason.

21        I think, as far as the public service

22   generally is concerned, the real problem is

23   everything is top-down rather than bottom-up

24   and you put the Human Rights Act or whatever

25   into a public authority and then it begs the

 1   question: what do we mean by "public

 2   authority"?   Which is another question.    It

 3   goes in at the top and by the time it filters

 4   down to middle management, where I think it

 5   really does need to bite, it is just yet

 6   another job to impose on somebody who has 1,001

 7   other things to do, because the things that get

 8   put down are on the middle management and it is

 9   seen as a burden rather than a tool.     Where it

10   has worked well you can see the difference, but

11   it is very patchy.

12        If we take the health service, for

13   example, the five pilot schemes that BIHR have

14   been running with various NHS trusts, all the

15   feedback we have had from users, people

16   involved in the trusts themselves and academics

17   has all been very positive.   I've also seen it

18   myself in my own patch in that when we did the

19   health care inquiry I decided we would use my

20   patch as a bit of a guinea pig and we visited

21   the acute trust and the primary care trust

22   community hospital.   The acute trust,

23   I thought, was a bit behind the game and I have

24   been badgering them ever since.   I now meet the

25   Director of Nursing quite regularly -- I am

 1   trying to get her title changed to "chief

 2   matron", which means more to people, but that's

 3   a different story -- and she gets it and they

 4   are starting to make a difference on the wards

 5   on dignity and respect and those sorts of

 6   things.

 7        At the community hospital I was much more

 8   impressed, because the staff didn't really

 9   understand the issues in concepts of "human

10   rights" in inverted commas, but understood what

11   we were talking about.   After, I had some informal

12   discussions, I went up with the staff and had

13   a cup of tea with them and started talking

14   about all these issues in the context of Human Rights

15   and they got it, they understood what we were

16   talking about and they were implementing it.

17        I think the difference there is that

18   a community hospital is a smaller operation --

19   50 beds as opposed to several hundred

20   beds -- and it filters down because you are

21   dealing with middle management.   So the key to

22   it I think is to get it out of the lawyers'

23   offices, who say: we have done this policy,

24   blah, blah, blah.   It is like, I suppose, going

25   back to the years of when we were looking at

 1   gender equality and race equality.      It was all

 2   at the start a tick box; to change attitudes it

 3   takes a long time.   In the early 60s

 4   drink/driving was something that somebody did

 5   and got away with, and now it is seen as

 6   something which is condemned by society and if

 7   you get done for drink/driving it is seen by

 8   society with opprobrium.   I think we have to

 9   start trying to embed that within the public

10   service generally and it is not happening

11   because it is coming from the top rather than

12   further down.

13        One of the key concerns I have on the

14   health care issue, for example, is we have had

15   these five pilots which we know have been

16   successful -- the evaluation has not been done,

17   or if it has been done it has certainly not

18   been published, but I don't think it has even

19   been done, let alone rolled out.     All the

20   evidence that we have collected on these issues

21   is that, generally speaking, it costs very

22   little, if anything, more to do things in the

23   correct context of human rights and in fact

24   some of the doctors said it actually works out

25   cheaper, because if you treat people properly

 1   in the first place they are less likely to

 2   complain, which has an opportunity cost as it

 3   works its way through the system, you are more

 4   likely to get your systems right, and you are

 5   more likely to get the patients better quicker

 6   and not to come back for a relapse.       So

 7   everything, for example, in the health care

 8   system seemed to point to the idea that once

 9   you had done the basic work it wasn't going to

10   cost a vast sum of money.

11          There will be some cost in initial

12   training, but again I think the approach to

13   training is, if it is taught as a human rights

14   module you go along and have your human rights

15   and have your particular tick box, "I have done

16   the training".       It doesn't work like that.     It

17   has to be done through training throughout the

18   whole system.

19          MS O'LOAN:     Can I take you specifically

20   into the issue that I think is one of the most

21   important issues for this inquiry.

22   Incidentally, MORI have evaluated those five

23   projects.

24          MR DISMORE:     They haven't published it

25   yet.

 1        MS O'LOAN:     No.   We have done a research

 2   report as part of this inquiry into delivery of

 3   human rights and we have looked at a number of

 4   those projects in some depth and that will be

 5   published.     That's, again, just as a matter of

 6   information.

 7        But it's the language I wanted to talk to

 8   you about.     Because the way that this matter

 9   has been approached in England and Wales has

10   been a matter of fairness, respect, autonomy,

11   et cetera, dignity, and that language is not

12   specific enough in my view to deliver human

13   rights, because if people don't know what it is

14   they are talking about they are not going to be

15   able to monitor whether they are delivering it.

16   Jack Straw said, again, that it would be the

17   language you would need to speak to win an

18   argument.    You have done work particularly on

19   older people and people with learning

20   disabilities.     Do you think that's right?

21        MR DISMORE:     Yes I do.   I mean I think the

22   starting point is now the government seems to

23   be frightened of the language of human rights,

24   because it has got such a bad name, and we can

25   explore maybe why that has happened.     When

 1   everything is produced, the human rights

 2   language is always somewhere buried in the

 3   background documents, it's never in the upfront

 4   paperwork.     Very rarely then do you find people

 5   making the link.     Occasionally it happens and

 6   when they do, you know, big surprise and give

 7   them a tick.     But they use this language of

 8   dignity and respect and all of rest of it but

 9   not specifically in the context of human rights

10   and I think that's part of the problem.

11        One of the battles, for example, I had

12   with the trust, when I went to see them, is

13   they produce a leaflet for the patients about

14   when they can expect.

15        MS O'LOAN:     Is this the acute trust?

16        MR DISMORE:     Yes, and I said, "Where does

17   it say what the patients' rights are?     “Oh we’re not

18   sure about that".     I think that's part of the

19   issue.   One of the issues that came out very

20   strongly on a lot of the work we have done on

21   the wider human rights service issues -- which

22   is that people need to know that they are not

23   just entitled to have the services delivered in

24   a proper way, they expect that, but that they have

25   the right to expect the services in the proper

 1   way.

 2          MS O'LOAN:    Do you think that they are

 3   actually afraid of admitting that they have

 4   rights, is that what you are saying?

 5          MR DISMORE:    No, I'm not saying that.

 6   What I'm saying is I think that they are

 7   frightened of using the language of rights

 8   because of what the Daily Mail will say.         I

 9   think that, you know, you get the most bizarre

10   things -- the way our reports are twisted

11   around to say the opposite of what we meant.

12   I'm trying to think of an example.      There is an

13   example involving prisoners, but I can't

14   remember what it was now.

15          I think they don't like to use the

16   language of human rights in these documents

17   because they think somehow it will debase the

18   document rather than enhance it is how I would

19   put it.

20          MS O'LOAN:    I mean the reality, as the

21   evidence has come through to us, is that, you

22   are quite right, people are afraid of the

23   language, not just governments but

24   organisations are afraid of the language.         They

25   don't have the language themselves, the people

 1   very often giving us evidence didn't have the

 2   language, and because they don't, they don't

 3   understand what it is they are talking about

 4   and the problem that we have with fairness and

 5   dignity and respect is that you could have

 6   a minimum level which actually doesn't breach

 7   people's human rights and they are universal

 8   human rights.

 9        One of the things that we have been doing

10   this morning is taking evidence from the Police

11   Service of Northern Ireland, which was the

12   first organisation which had a statutory duty

13   to monitor its compliance, and that document

14   there is their annual report on compliance with

15   the Act and it covers every aspect of work --

16   operational, policing, training, recruitment,

17   et cetera -- in terms of the Human Rights Act.

18        One of the things we have also seen is

19   that where an organisation does use the

20   language of human rights, the service delivery

21   has been much better, it is very clear.     The

22   police service would say to us, it's not

23   a problem, it's not a threat, it makes us

24   better and we can defend ourselves if we have

25   to go to court.   Yet, despite all that, if

 1   I take something like the draft NHS

 2   constitution, there is no mention of human

 3   rights in that.

 4           MR DISMORE:    Yes, it's buried in the

 5   background.

 6           MS O'LOAN:    Yes, and it will

 7   never -- I mean ten years on, England and Wales

 8   has come very little distance really hasn't it?

 9           MR DISMORE:    Well, I think that's right.

10   It's taken a long time to get into the public

11   psyche the whole issue of equality and now you

12   are a merged Commission, as it were, with human

13   rights as part of that responsibility and I

14   think that part of the job is to make human

15   rights as prominent in the popular psyche as

16   the right to equality and I think people do see

17   it as a threat.       It's like complaints, you

18   know?     Is a complaint a threat or an

19   opportunity?     When you see somebody who makes

20   a complaint, you know, should you pull up the

21   drawbridge or should you say, "Well, let's

22   investigate it and if it is found to be right,

23   what can we do to put it right?          It is an

24   opportunity for us to clean up our act", and

25   this is all in that same context.          I think you

 1   are right about the point about the NHS

 2   constitution, and it is one that we have been

 3   making.     I think that then leads you inevitably

 4   into the issue about social and economic rights

 5   as well, which we may or may not get around to

 6   talk about, if that's what you would like to

 7   talk about at some stage.

 8        MS O'LOAN:     We will stay with human

 9   rights.

10        MR DISMORE:     Well, I think they are human

11   rights, but that's another story.

12        MS O'LOAN:     But under the Human Rights Act

13   and the Convention at this present time, it's

14   not human rights.     It's the Human Rights Act,

15   well that's my belief.

16        You have made a recommendation for

17   a specific statutory duty to comply with the

18   Human Rights Act and the government response is

19   that section 6 is adequate, something that they

20   have already looked at and they are not

21   prepared -- do you think that's a satisfactory

22   response?

23        MR DISMORE:     No, and we keep hacking away

24   at all these different aspects and eventually

25   sometimes we win through, you know.     The

 1   Convention on the Rights of the Child and the

 2   reservations we have been going on about for

 3   ages, now they say they are going to lift them.

 4   Never as a response to our reports or

 5   recommendations, but it eventually happens.

 6           But, yes, I think we have to have

 7   a statutory duty to comply.      That doesn't mean

 8   I want to see public bodies in court all the

 9   time.     That's not the way we are going to sort

10   these issues out and I think that has been part

11   of the problem that has led to the defensive

12   mechanisms we have seen.      The cases that are

13   brought, well some are apocryphal, but if you

14   look at the real ones, most of them are to

15   address genuine difficulties and even for

16   "unpopular" people like prisoners, often they

17   are the ones that have points to make.      They

18   are the ones that get reported, of course, not

19   the ones in the care homes who are making

20   a very valid point and are usually winning

21   them.

22           MS O'LOAN:   Does the committee have a view

23   as to whether police authorities who have this

24   new statutory duty -- who are the only

25   organisations which do in the England and

 1   Wales -- whether they require additional

 2   funding to enable them to do this?    Because the

 3   Northern Ireland experience was predicated on

 4   funding for training.

 5        MR DISMORE:    I don't think we have a view

 6   on that and, coincidentally, we are going to

 7   Northern Ireland on Monday morning and we are

 8   meeting the Northern Ireland police service

 9   then, so I think that's something we could talk

10   to them about as part of our discussions.

11        MS O'LOAN:    They would say that the

12   resources are critical to their delivery, but

13   it has avoided litigation and made it much more

14   effective.

15        If I could ask you then about the role of

16   political leadership, because frankly every

17   witness I have heard has said to me that there

18   is a need, a very visible need, for political

19   leadership.   They are also articulating a need

20   for the Commission to lead, but health care

21   bodies, for example, are asking for the

22   relevant department to lead, et cetera, and we

23   have been advised that the ministerial group on

24   the Human Rights Act has really been suspended

25   because those ministers are concentrating their

 1   energies on the British bill of rights and

 2   responsibilities.    Do you think that that maybe

 3   is one of the reasons why we haven't had this

 4   public conversation about human rights?

 5        MR DISMORE:    Well, I think the starting

 6   point was that the ground work wasn't done in

 7   the first place to argue why we need the Human

 8   Rights Act incorporated into UK law.    It was

 9   part of our manifesto.    I frankly admit I was

10   sceptical about the whole thing myself back in

11   1997, and I have significantly moved my

12   personal position in relation to these issues

13   as I have done more work on it.    My fear back

14   in 1997 was that shared by a lot of people from

15   my lawyer generation, which was that this is

16   another tool for the judges to beat up a Labour

17   government.   It has been that, but I think

18   actually in a constructive way.    So I think

19   part of the problem was the work wasn't done in

20   the beginning by us, collectively from our

21   leadership as a government, through to us as

22   MPs and then disseminated through the political

23   parties.

24        I think part of the problem also has been

25   the approach of the opposition, which I think

 1   is disingenuous, and it is partly to do with

 2   the Human Rights Act itself.   It's partly to do

 3   with "Europe" -- I mean a large proportion of

 4   the population are sceptical of anything that

 5   comes out of Europe and they think this is

 6   something to do with the European Union, and

 7   very bright intelligent people think it is to

 8   do with the European Union, and they don't know

 9   the genesis of it and where it came from.     So

10   basically I don't think we did the ground work

11   at the beginning to prepare people.

12        It's also spreading it out more widely,

13   and one thing I really liked when I visited

14   Northern Ireland the first time to look at

15   these things was the booklet which the

16   Northern Ireland Human Rights Commission had

17   prepared for the general public, you know, what

18   this means in real life.   Wherever I have gone

19   I've said to people -- I think I've said it to

20   Trevor here and maybe Nicola when we met first

21   privately, "Look at this, I think it is the

22   best thing I have seen".   I have said it to our

23   ministers this is the best thing I have seen

24   and why are aren't we doing it on the mainland.

25   I think that, for me, is a very good piece of

 1   work which we should build on if shows people

 2   what is and isn't human rights.

 3        Where do we go from here?    Well, the

 4   medium term -- we then had all the problems of

 5   the Human Rights Act being used by the media to

 6   beat us up over terrorists and criminals and

 7   all that sort of thing, because the ground work

 8   hadn't been done, and also with newspaper editors,

 9   I guess, who are never going to be our friends

10   anyway, to explain what this is about.    If the

11   media is hostile to it, you are on a hiding to

12   nothing to start with.

13        MS O'LOAN:    But interestingly enough

14   Mr Piers Morgan(?) reviewed the Human Rights

15   Act and didn't find (inaudible) terrorism and

16   yet was that published, was it made known?

17        MR DISMORE:    Well, not very well and we

18   did our own report about 18 months ago I think

19   it would probably be now, on all this, and

20   whilst the government says it gets into

21   myth-busting, it clearly hasn't, and it has

22   been as much part of the problem as part of the

23   solution.   A lot of the myths have been created

24   or perpetuated by government, who should know

25   better, and certain home secretaries, who shall

 1   be nameless, have been particularly vociferous

 2   in their criticism.    That doesn't help and it

 3   really is friendly fire of the worst type.

 4        So where do we go from here?    Well, this

 5   is why I think the forthcoming debate on the

 6   British bill of rights is important because

 7   this is a new opportunity to try and put all

 8   this stuff in a new context and make it more

 9   relevant.   The reason I say "relevant" is this.

10   When people come to my constituency and say,

11   "My human rights are being infringed", it's

12   usually about things that are not in the Human

13   Rights Act at all; it is their health care or

14   the fact they don't have a decent home or they

15   can't get the kids to the school they want or

16   whatever.   That's why I think that if we can

17   start to bring in a statement on human rights

18   in a very careful way, it gives us an

19   opportunity to start to explain how human

20   rights in the broader sense are relevant to

21   people's everyday lives, like the Northern

22   Ireland booklet did.

23        Kathy Ashton used to put it in an

24   interesting way.   She said: if your washing

25   machine breaks down, you know you have consumer

 1   rights, even if you don't know exactly what

 2   they are.    At least let's try and get to that

 3   position where people know they have some basic

 4   rights that they can use.     It's getting away

 5   from some of these myths that is the hardest

 6   part, because the newspapers are always

 7   perpetuating the myths and they won't print

 8   a retraction showing the myth to be wrong.

 9   I mean the Dennis Nielsen case of pornography

10   in the cell didn't get beyond first base.

11        MS O'LOAN:    And more politicians continue

12   to run with those incorrect stories.

13        MR DISMORE:    Yes.

14        MS BREWER:    I would like to ask a question

15   about competing rights.     This inquiry has heard

16   from a number of witnesses, particularly those

17   working in the field of criminal justice, that

18   the Human Rights Act provides a good framework

19   for balancing so-called competing rights; we

20   talked about criminals and terrorists versus

21   victims.    How do you see the role for those

22   involved in the public domain, public leaders,

23   in using -- explicitly you talked about they

24   bury the language of human rights, so

25   disinterring that language -- using the Human

 1   Rights Act as the framework to helping to

 2   balance those so-called competing rights.        How

 3   do you see their role and, if you don't see it

 4   yet being used, what do you think will be the

 5   way forward?

 6        MR DISMORE:     I get a bit concerned when

 7   talking about balancing rights, but I think the

 8   starting point is to talk about universality.

 9   What do we mean by "universality"?     Well, okay,

10   anyone can end up being arrested for something

11   you haven't done and your human rights protect

12   the fact that you are entitled to fair

13   treatment from the police and, ultimately, if

14   you are charged, with a fair trial.     It can

15   happen to anybody.     All the time you hear about

16   people being arrested and charged with things

17   that aren't right.     That's not a very good

18   example, but I think it comes down to what we

19   have been trying to do, saying, okay, if you

20   look at the thematic reports we have done, I

21   think we have produced sympathetic subjects in

22   the way we approach them.

23        The first thing we did was on people

24   trafficking which was a bit of both really.

25   You've got the undertone of immigration and

 1   possibly migration offenders, but also victims

 2   with whom people can sympathise.      We then did

 3   the work on the elderly which took off big

 4   time, much bigger than I thought it ever would

 5   and has been quite a --

 6        MS O'LOAN:     Everybody will be old at some

 7   point.

 8        MR DISMORE:     Exactly.   We then did the

 9   report on asylum seekers -- not who is and who

10   isn't, but on the treatment of asylum seekers

11   and, frankly, I was horrified by it.      I knew

12   a bit of it anyway from my own constituency

13   work, but putting it altogether was pretty

14   horrific.     But it shows that we can provide

15   a balance and, again, that was relatively well

16   received even by some of the right wing press.

17   Then the work more recently done on adults with

18   learning difficulties -- again, a sympathetic

19   group -- didn't get the publicity it should

20   have done.     I think that was partly because of

21   the timing and so forth, but we will come back

22   to that.     Again, showing how this is for

23   a particular group who people have sympathy for

24   and, again, we found some pretty horrific

25   things; some excellent practice but also a lot

 1   of bad practice too.

 2        I suppose, getting back to the question,

 3   it is showing that you've got to balance all

 4   the things up and I think the best example in

 5   this was work I hope you may come back to at

 6   some stage, which was adults with learning

 7   difficulties in the criminal justice system,

 8   which really does square the circle, because

 9   you've got people who are getting a raw deal

10   from the criminal justice system because of

11   their learning difficulties.   For example, one

12   of the things that really struck me in the

13   inquiry was the evidence that we had that

14   somebody who was convicted of an offence and

15   put in prison with learning difficulties was

16   more likely to spend more time in jail than

17   somebody of average intelligence because they

18   couldn't qualify to do the rehabilitation

19   courses because of their learning difficulties.

20   Now, I think anyone would sympathise with that.

21   Okay, they are criminal -- well that begs the

22   question about the whole trial thing, but all

23   things being equal there, it is not fair that

24   they should end up having to spend more time in

25   jail simply because of who they are.   It's

 1   discrimination.     So I think if we start to look

 2   at some of these discriminatory aspects of

 3   people who might not necessarily attract

 4   sympathy you might start to try and square some

 5   of these circles.

 6        MS BREWER:     And specifically on the

 7   question of whether it would be advantageous to

 8   draw attention to the fact that it is the Human

 9   Rights Act that provides a framework for

10   balancing competing rights, do you see any

11   signs that people in public life are drawing

12   attention to that or alternatively are quietly

13   doing it, but not drawing attention to it?

14        MR DISMORE:     If they are doing it they are

15   not doing it very well.     Then you get into this

16   whole thing about the rights of victims versus

17   the rights of the accused, and I don't think

18   they are conflicting rights.     Actually, I think

19   they are different rights and I don't think it

20   is a question of balancing up.     You can't

21   balance up the right of the victim who has been

22   beaten up with the right of the criminal to

23   a fair trial.     The accused is entitled to

24   a fair trial and the rights of the victim don't

25   come into that, you know?

 1        MS BREWER:    That's not often said loudly

 2   and publicly, is it?

 3        MR DISMORE:    No, it isn't, and the victim

 4   has rights.    I think the whole thing about

 5   restorative justice is possibly a way of trying

 6   to put some of that together, but that's very,

 7   very, very delicate and certainly not

 8   appropriate for many, many cases.    No, they are

 9   different rights, they are not contradictory

10   rights.

11        MS O'LOAN:    You can get competing rights,

12   if you took, for example, the right to protest.

13        MR DISMORE:    I was going to give you that

14   example now, I was about to exactly draw that

15   point.    You do have competing rights and we are

16   in the middle of an inquiry on the right to

17   protest, and we heard some evidence about this

18   the other day on freedom of expression.    In

19   fact, I have just done some work for the

20   Inter Parliamentary Union on freedom of

21   expression and the cutting edge here is

22   probably on religion, but again do you need to

23   get into that very angels on a head of a pin

24   debate about competing rights between freedom

25   of expression and right to protest, or should

 1   we be moving that debate beyond what is or

 2   isn't a statement that incites religious

 3   hatred?     I think these are all very interesting

 4   questions for lawyers, but in practice do they

 5   make a difference?     Let me just finish the

 6   point and then you can shoot me down if you

 7   like.

 8           I think we need to be moving the debate

 9   about freedom of expression way beyond some of

10   these legalistic arguments and say, yes, we

11   have a right to freedom of expression, but most

12   people in this country have no opportunity

13   whatsoever to ever exercise it.     How do you, if

14   you are a lone parent on a council estate,

15   perhaps one of many, take on the council

16   through your right of freedom of expression to

17   protest about what the council is doing on your

18   housing estate?     The avenues aren't open to

19   you, you don't -- you have a right, but you

20   don't have an ability or the opportunity to

21   exercise that.     So I think we need to start

22   moving -- the freedom of expression debate, for

23   example, is a very interesting one for me as

24   a lawyer with my lawyer's hat on and I can

25   argue the detail as much as anybody else can,

 1   and we do in the committee -- there are many

 2   different views on aspects of this,

 3   particularly the religious aspect.      But, having

 4   said that as a politician, I think we need to

 5   go beyond some of those debates which really

 6   don't take us very much further and certainly

 7   how we develop these rights to be more

 8   meaningful to people at large.

 9          MS O'LOAN:    I think you are quite right

10   there, but I think we can immediately place in

11   front of you examples of situations here in

12   England and Wales where, for example, we have

13   heroes returning from Iraq and Iraq protests

14   simultaneously occurring and then the police

15   policing that have a duty somehow to give

16   effect to the right to protest and

17   simultaneously protect the rights of the

18   soldiers, and to do it and not to put the right

19   to protest around the corner and out of the

20   way.    So it is a necessary part of everyday

21   dialogue as well.

22          MR DISMORE:    It is and I'm not going to

23   give you a firm answer to that now --

24          MS O'LOAN:    I don't want you to.

25          MR DISMORE:    -- because we are producing

 1   a report on this hopefully around the turn of

 2   the year and I wouldn't want to be seen to be

 3   prejudging what the outcome of that inquiry

 4   will be.    We have heard evidence so far from

 5   the civil rights organisations, Liberty and all

 6   the rest.     We have heard evidence earlier this

 7   week from protesters and protestees, so we get

 8   both points of view.     We will be hearing

 9   evidence in Northern Ireland, which is very

10   cutting edge on this sort of thing, I think, on

11   Monday and we will be hearing from the minister

12   later in the sessions as well.     So we are

13   trying to get an overall picture on these sorts

14   of things on the right to protest, and freedom

15   of expression, yes.

16        If you ask me my personal view, yes we

17   have to do both.     You have to protect, if you

18   have a counter-demonstration, you have to make

19   sure it is safe but both people have the right

20   to protest.    If you don't do that you end up

21   with far worse scenarios, as we have seen in

22   Northern Ireland.

23        MS BREWER:     A minute ago you were talking

24   about the relationship between the Human Rights

25   Act and whether it had or hadn't hampered the

 1   fight against terrorism and Dame Nuala

 2   mentioned that the 2006 review expressly found

 3   no such hindering or hampering, but the claims

 4   continue and claims also continue that the

 5   Human Rights Act has tied the hands of police,

 6   undermined Parliament and done little to

 7   protect traditional civil liberties.      Do you

 8   want to comment on that?

 9           MR DISMORE:   Well, I would disagree with

10   that.     If you look at the counter-terrorism one

11   in particular, again I have changed my view

12   about this from the 90 day debate to the 42 day

13   debate for example.      The reason I have changed

14   my mind about it is when we debated the 90 day

15   debate there was no human rights alternative,

16   it was all or nothing, and what we tried to do

17   in the committee -- this goes back to what I

18   was saying earlier on.      Instead of just saying

19   no, which is what we said on the 90 day debate,

20   we said okay is there a human rights compliant

21   way of developing a counter-terrorism strategy?

22   We spent a lot of time and effort on that. I

23   think we are on our 13th or 14th report on the

24   policy now, but the seminal one is one we

25   published in the summer the year before last, I

 1   think, in which we actually put forward

 2   a series of options and ideas that could

 3   improve counter-terrorism work within the human

 4   rights framework, which has since been

 5   developed and expanded on and responded to and

 6   I have now significantly changed my position on

 7   this, because I think there are better ways of

 8   doing it in a human rights framework that don't

 9   exacerbate religious tensions and also give police

10   the tools they need.   Some of the suggestions

11   have come from the police and Attorney General

12   themselves.   I wish the government would

13   actually look more positively on some of things

14   we have been saying.

15        MS BREWER:   Can I move on to talking about

16   the different kinds of roles in terms of

17   promoting and articulating human rights that

18   the government has, that your committee has and

19   that this Commission has.   I would be

20   interested in your comment in terms of

21   promoting human rights and how you see the

22   distinct roles of those three actors.     You

23   mentioned a moment ago the myth-busting role

24   and how the government, you said, clearly

25   hasn't got into myth-busting, so that's one

 1   example where I would be interested to hear

 2   your views on the different roles those three

 3   actors can play.

 4        MR DISMORE:   What can the government do?

 5   The government has different roles.      Role

 6   number one is the leadership role, which is the

 7   secretaries of state doing the myth-busting and

 8   doing the active promotion in the speeches they

 9   make, the comments they make, what they say in

10   the House, what they say to outside learned

11   bodies, and what they say to the press.         That

12   has not been happening, primarily because it is

13   the line of least resistance, I think, and that

14   includes people who are in the old Lord

15   Chancellor's department when it became the DCA

16   and now the MoJ.   I think it has been

17   a consistent theme that they say they will do

18   it, but in practice very little happens.


20   So that's the flagship leadership role.

21        But much more important is the work the

22   MoJ should be doing to disseminate human rights

23   principles throughout government departments.

24   Then this is the trouble with the

25   hierarchies: how does it filter through down?

 1   So, okay, it filters through to the Department

 2   of Communities, how do they filter it down to

 3   the local authorities and how do then the local

 4   authorities filter it down within their own

 5   departments?    By the time it gets to the bottom

 6   of the food chain, where it engages with the

 7   public, it is so diluted it's lost, which is

 8   why I come to the point I made earlier on that

 9   the key to this for me is to try and engage

10   middle management, which is not happening.

11        MS O'LOAN:    The Ministry of Justice, in

12   evidence to us -- and I will ask Nicola to

13   correct me if I am wrong, because I don't want

14   to misquote the Ministry of Justice, but I

15   think they said to us that it is not their

16   responsibility to ensure rights, that it is the

17   duty of the individual elements of the public

18   authorities to do this and that that's correct

19   in that they do have a individual duty.

20        MR DISMORE:    Yes, but my understanding was

21   that they had a clear coordinating role within

22   government.    The human rights minister is a MoJ

23   minister and we had quite an interesting

24   discussion with Michael Wills about this time

25   last year when they had the big data loss on

 1   the child benefit -- I think it was child

 2   benefit data, wasn't it?    Just for his bad luck

 3   he happened to be giving evidence to us the

 4   next day, so we were able to probe him about

 5   these aspects, about data protection, for

 6   example, as a human rights issue, what his role

 7   was and, basically, he didn't seem to have one,

 8   although we recommended that he should have.

 9   So it seems that the MoJ ministers have

10   a theoretical role, but in practice it doesn't

11   happen and I think we have to have some central

12   coordination, which goes against my basic

13   premise that you've got to have it further down

14   the tree.

15        MS O'LOAN:    Is the answer not that if you

16   get it both ways then it meets?

17        MR DISMORE:    Yes.   It was very

18   interesting, the evidence that we had from the

19   RCN on the health care one, where the nurses

20   were saying to us, this actually helps us take

21   on management.     If they are asking us to do

22   things or work in a way which we don't think is

23   human rights compliant with our obligations

24   professionally to our patients, we can say to

25   our management: our patients have the right not

 1   to be treated this way or to be treated this

 2   way.     It strengthens their arm.   So I think it

 3   has got to get further down.

 4           What's our role as a committee?   Well, our

 5   formal responsibility is to advise Parliament

 6   on human rights, both Houses of Parliament.

 7   Traditionally that was seen as scrutinising

 8   government bills for compliance.      We still do

 9   that work, but I think we do it in a more

10   focused and precise way.     Before it was every

11   single bill got the same treatment and by the

12   time anything was produced it was far too late

13   to make any difference.     What we are doing now

14   is sifting bills for a preliminary whip through

15   to see if there is anything significant of

16   a human rights nature.     We then pick out those

17   we think have significant issues and for those that

18   have very significant issues we do a big number

19   on, and I'm expecting, for example, in the

20   forthcoming year that we will do a major piece

21   of work on the immigration bill, on the

22   equalities bill and on the coroners' reform

23   bill.     I'm not sure what it will come out being

24   called, but it will be something like that.

25           One of the things we will be doing on the

 1   immigration bill, which will be interesting, I

 2   hope, is that because this is a consolidation

 3   bill bringing together ten and a half acts of

 4   parliament going back to 1971, it will give us

 5   an opportunity to do for the first time some

 6   really heavy post-legislative scrutiny on stuff

 7   that was passed long before the Human Rights

 8   Act became law.

 9        What I would like us to do more of on the

10   scrutiny side is getting into white papers and

11   green papers at an earlier stage.   I think the

12   thing we don't do nearly as well as we should

13   do is delegated legislation.   The real problem

14   is that both those issues relate to resource

15   implications both in terms of our staff and member

16   time as well, and the few things we have done

17   on delegated legislation -- I think it opened

18   up some real cans of worms; the immigration

19   work we did on the issue of youth training

20   centres, restraint techniques for example.

21   Part of the problem is we don't have the

22   resources to monitor what's going on and one

23   thing I think would be very useful -- I don't

24   know if this is something the Commission could

25   think about -- is giving us an early warning

 1   system of things that you might pick up in

 2   delegated legislation which we might miss.      If

 3   we are tipped off we can decide whether it's

 4   something that we want to have a bit of a go

 5   at.

 6         Beyond that --

 7         MS O'LOAN:    Can I interrupt and ask if you

 8   would like a glass of water?

 9         MR DISMORE:    No I'm fine thanks.   I'm used

10   to speaking for hours without anything!

11         Beyond that, what I'm also keen for us to

12   do, as far as Parliament is concerned and the

13   reports, is translate those then into

14   meaningful action in Parliament, because I did

15   the select committee for work and

16   pensions/security committee for eight years

17   before I came to the human rights committee and

18   I was conscious of the fact that we produced a report

19   then that would pretty well be the end of the story.    So

20   what I've tried to do is to make sure,

21   dog-with-a-bone-like, we that don't let these

22   things sit on the table.     For example, when we

23   did the health and social care bill, we dusted

24   off the Health Care for the Elderly report and

25   brought those recommendations into the bill,

 1   particularly, for example, on the duty of the

 2   regulator, which unfortunately does not include

 3   a duty to enforce human rights. We didn't

 4   win, but we keep coming back.   Similarly, on the meaning of

 5   public authority, we are bringing that up all the

 6   time as well.   So that's an example of how we

 7   are trying to translate those reports into

 8   action on the floor.

 9        The other thing we are doing is, now

10   routinely when we do scrutiny, we produce a lot

11   of amendments which are usually tabled.     The

12   other thing we are doing is our -- they are not

13   entirely working to my satisfaction yet, but we

14   have done four now, mini-conferences picking up

15   our previous reports, bringing the NGOs back to

16   meet us informally with a minister to talk

17   about the recommendations, progress and so on,

18   because as I said, you know, the NGOs are key

19   partners for us, and I want them to feel valued

20   and not just patted on the head and say "thank

21   you very much", but to be part of our work and

22   part of our process, and by bringing them back

23   and letting them see what we have recommended,

24   which may or may not be what they agreed with,

25   the challenges of what we recommended and the

 1   challenges of what we are doing to take those

 2   recommendations forward, and privately giving

 3   them access, they might not otherwise get in

 4   a collective way.     It is starting to work.

 5   I still haven't got the format right but the

 6   concept I think is a sound one.

 7        MS BREWER:     Can I probe a bit.   You talked

 8   about the regulators and you were extending

 9   that into the role of inspectorate bodies.

10   Where do you think the impetus for reaching

11   into local government will come from?      Will it

12   be through inspectorates or regulators in terms

13   of the understanding and embedding of the human

14   rights based approach in local government?

15        MR DISMORE:     I think ultimately it comes

16   down to spreading good practice and part of the

17   problem is the leadership in local government.

18   You know, if MPs and parties in Parliament and

19   the executive don't really understand or get

20   it, it's very difficult to think that these are

21   local authorities who a large part of part-time

22   are going to get it, or give it priorities.     So

23   it is partly trying to give it political

24   direction from within a local authority in the

25   first place, and it is particularly difficult

 1   now given the political complexity of local

 2   government generally.       So I think that's part

 3   of the problem.      It's also the monitoring so

 4   you can talk about inspectorates and all that

 5   sort of thing, but I think it's more -- I think

 6   we've not even got to that level yet with

 7   organisations, if they are prepared to try and

 8   do some education work within local government

 9   to explain what we are on about, with the

10   senior officers.      I think it is the

11   professional bodies as well and I think also

12   trade unions have a role to play at the bottom

13   end.

14          MS O'LOAN:    Can I just develop that

15   a little further, because we had evidence from

16   the Audit Commission yesterday on the

17   comprehensive area assessment process and I

18   don't think human rights form part of that

19   either.

20          MR DISMORE:    No.   It's all a "tick box

21   bolt-on at the end" attitude.       This is the

22   conflict, I suppose, between measuring things

23   and mainstreaming things.       If you want to

24   measure something you have to have the box to

25   tick: have you got a human rights policy, have

 1   you got an equality policy, have you got an

 2   anti-bullying policy, whatever, tick the box

 3   you have a policy, fine, but how do you

 4   mainstream that policy throughout?    That

 5   becomes much harder to measure.

 6        MS BREWER:    Do you think it's also

 7   a question of follow through?     So, for example,

 8   one of the bodies that I have spoken to is the

 9   Audit Commission and they did a report in 2003

10   about human rights and improving public

11   services, but they see their role as being to

12   audit, so to take a spot measurement but not to

13   follow through.    Do you think -- you were

14   talking about making sure the thematic reports,

15   your committee's thematic reports, you helped

16   translate those into practical action via

17   Parliament, do you think that's mapping into

18   other bodies?

19        MR DISMORE:    No, I don't, but that's the

20   nature of the structure.    If -- supposing

21   a local authority decided to set up a scrutiny

22   panel on human rights like they have the

23   scrutiny panels on health and all the rest of

24   it, I would be absolutely gob-smacked, because

25   it is not the sort of thing they talk about.

 1   They should, I would love to be -- well,

 2   I wouldn't want to be back in local government

 3   again, that was a nightmare, but if I were, I

 4   would like to say, now, from what I now know

 5   compared to the little I knew then, I would see

 6   this is something I would try and persuade my

 7   local government colleagues to do, try and set

 8   up a scrutiny panel within the local authority.

 9   One thing that irritates other select committee chairs is

10   the way that I seem to be poking my nose into

11   their business all over the place, particularly

12   home affairs.

13        MS BREWER:     On each of the roles, again,

14   is there anything you would like to say about

15   the role of the Commission?

16        MR DISMORE:     I haven't finished on the

17   committee yet.     So our formal role is working

18   with Parliament, but I'm trying to broaden that

19   out and the staff do quite a bit of speaking

20   outside, and I do a bit of speaking -- not as

21   much as I would like, because of Parliamentary

22   duties -- to try and spread the message of what

23   we are trying to do in the way that we've

24   organised things differently, not necessarily

25   the best way, but it is a different way of

 1   doing things, and also to spread the wider

 2   message and I encourage my colleagues to do

 3   that too.   Within the constraints of our job we

 4   do that.

 5        As far as the Commission is concerned,

 6   well it's early days for you yet.   To me the

 7   real challenge, as I said at the beginning, is

 8   to try and have human rights seen in the same

 9   context as the equality duties and we haven't

10   got there on the equality duties.   I mean gay

11   rights -- you have a member of your Commission

12   who I have doubts about, but that's another

13   debate on that particular issue, which I'm sure

14   you know.

15        These are still, unfortunately, issues

16   that are not well-settled and when I go

17   overseas and talk about these things some of

18   the things I come across are absolutely

19   horrific in terms of equality, or lack of.     So

20   it was a huge job to do and what can you do on

21   a practical level, you know, I think that we

22   need to have a close working relationship.      The

23   one thing that you can do that we can't is much

24   bigger inquiries.   You've got a much better

25   policing with a small "p" role than we have,

 1   but what we do and have is access to

 2   Parliament and government in a way that we can

 3   put things on the political agenda, perhaps, in

 4   a way that you can't.    Therefore, I think

 5   between us, it's trying to push work backwards

 6   and forwards, not in a sense of shoving it to

 7   somebody else's in-tray, but thinking: we have

 8   done this, we have uncovered this, this is

 9   something you might like to look at.    The thing

10   I particularly highlighted is trying to monitor

11   delegated legislation, which we can't do

12   systematically, but if you have the resources

13   to and you tip us off on something you think we

14   should be looking at, we are happy to take that

15   back to the committee.

16        For example, on the broader issue -- well

17   ultimately it all comes back to resource, not

18   within the organisations we are talking about

19   but the resources that you or we have to do

20   this work.   You know, if you've got the money

21   to produce the Northern Ireland booklet and

22   shove it through every letterbox that would be

23   wonderful.   Whether that would achieve a great

24   deal in the short-term I don't know, but it

25   might get people thinking about some of these

 1   things.   So there's -- we are all in the same

 2   game, really, it's educating the public and

 3   educating public authorities.

 4        MS BREWER:     A broader question now about

 5   how you see the role of human rights in British

 6   democracy.     Perhaps narrowing it a little bit,

 7   on the one hand you hear people saying that it

 8   has improved law-making and on the other you

 9   hear people saying it has undermined

10   Parliament.     Would you like to comment on that?

11        MR DISMORE:     It has certainly not

12   undermined Parliament.     Whoever said that is

13   talking absolute nonsense.     The whole structure

14   of it makes sure it doesn't undermine

15   Parliament, because in the end under the

16   various processes in the Act, Parliament still

17   has the final say.     If a court says that what

18   we have done as a Parliament does not comply

19   with the Human Rights Act, Parliament has to

20   consider it.     That's not undermining

21   Parliament.     But if Parliament say, "Okay, we

22   are sovereign, get lost judges, we will do what

23   we want anyway", we are entitled to do that.

24   So it has certainly not undermined Parliament.

25        Has it improved law-making?     Yes, I think

 1   it has and it has got better.    Some of the

 2   departments have got much better.    On the

 3   immigration bill we've got in the explanatory

 4   notes a huge chunk on human rights compliance.

 5   The trouble is that the bill as published

 6   doesn't have all the meaty bits in it, but on

 7   the bits they have published they have done

 8   a good job on that.    It is patchy between

 9   departments and in our annual reports, which is

10   another thing I have introduced, we are

11   highlighting a bit of naming and shaming and

12   praising those departments that are doing it

13   well and naming those that aren't as part of

14   our putting the year's work together.     So I

15   think it has improved law-making.

16        MS O'LOAN:    I would like to know, do you

17   think that an explicitly rights-based approach

18   will improve public services?

19        MR DISMORE:    Well, it depends what you

20   mean by "rights-based approach" I think.       We

21   use this language in a technical sort of way.

22   It can't do any harm is how I would put it, but

23   in the end what we have to do, I think, is

24   change attitudes, okay?    Everybody has the

25   right not to be discriminated against, but it's

 1   only when people actually believe it that it

 2   starts to make a difference, you know.

 3   Everybody has got the right not to be

 4   discriminated against on the grounds of gender

 5   or race but it still happens.

 6        MS O'LOAN:    For example, we have heard

 7   evidence that using rights-based language in

 8   the context of medical services, and doctors

 9   particularly, is regarded as provocative by

10   a number of professionals, because they are

11   used autonomously to making the decisions about

12   patient care and the best interests of the

13   patient.

14        MR DISMORE:    Yes, well, I think that would

15   be a very good example of where we do need

16   a rights-based approach.    The whole idea of

17   "doctor knows best" I think should be confined

18   to history and I do say that having been in

19   practice myself for 20 years as lawyer.     I saw

20   far too many screwed up law cases where the

21   lawyer knew best and clearly didn't and I would

22   translate that to any profession.    Most

23   professionals do a pretty good job and they

24   know what they are doing but they are hopeless

25   at communicating -- not every professional, but

 1   a lot of people are, and they don't always know

 2   best and they don't always get it right, and

 3   particularly when you are dealing with

 4   something so personal as health care, yes, it

 5   should be a rights-based approach and if I were

 6   a modern doctor I wouldn't be frightened of

 7   that.

 8           MS O'LOAN:    So if I take you on to the

 9   advocacy issues which exist in mental health

10   and health generally, how important do you

11   think education and provision of advocacy uses

12   is for service users to make their rights

13   meaningful to them?

14           MR DISMORE:    I think it is absolutely

15   essential.     We particularly highlighted this

16   not just in the health care report but also the

17   learning disabilities report.       I should declare

18   my interest in that my partner works for

19   a learning disabilities advocacy charity.          I

20   think she has been quite an influence on my

21   thinking on this as well.       I've no doubt that

22   you have to have that because, as I said

23   earlier on, you have consumer rights, you know,

24   if your washing machine doesn't work you've got

25   rights, but you might not know necessarily what

 1   they are.     But we have in the local authority,

 2   or should have, a consumer protection

 3   organisation to take up your case on your

 4   behalf and it's no different.     You've got to

 5   have proper advocacy services.

 6        MS O'LOAN:     And they need to be funded.

 7        MR DISMORE:     They need to be funded, yes,

 8   and they need to be trained.

 9        MS O'LOAN:     Can I ask you then, if I move

10   on from that to an element of social care and

11   the YL case, can I ask you whether you think

12   that the clarification which is proposed by

13   statute, bringing private care homes within the

14   Human Rights Act where residency placements

15   have been organised by the state, went far

16   enough?     Because we still have this sector of

17   elder care particularly where they are outside

18   the Act.

19        MR DISMORE:     That was a compromise.

20   A compromise deal.     We have been battering away

21   with the government -- a lot is being done in

22   private as well, not seen by the public.       There

23   were two schools of thought about this.       One

24   is, well, do we go for the whole option in

25   terms of the care sector and include self-funders which

 1   would solve the problem for the care sector,

 2   but it would also ease the pressure on the

 3   government for everybody else, and in the end

 4   the committee came to the view -- and it was

 5   a difficult one for us to come to -- that what

 6   we thought we should do, or we thought was

 7   achievable more importantly -- because you can

 8   have the best policy in the world, but if you

 9   don't deliver it, it is not much use.     What was

10   achievable was to get the government to put the

11   law back to where we all thought it was before

12   YL, which is what the amendment to the bill

13   did, so to that extent we were satisfied we

14   were back to where we started.     That doesn't

15   mean to say that's where we should end up and I

16   have been promoting my own private member's

17   bill now for two years.     The first one was

18   a more general one and the one this year was based on

19   Baroness Hale's judgment on the tick box, the

20   criteria to be looked at.     That's not got

21   anywhere, but I will have another go next year.

22   It will never go through as a private member's

23   bill, but it is an opportunity to keep raising

24   the issue and pushing the issue.

25        I think it's very bad that it's part of

 1   the debate on the bill of rights because that's

 2   going to take forever to resolve.     We've come

 3   up with quite a complicated formulation which I

 4   think works to square the circle on the bill of

 5   rights report.     In the meantime what's

 6   happening is that every time a privatisation issue

 7   comes before the house, I am moving an

 8   amendment, like we did a couple of weeks ago to

 9   do with social care by the social services

10   departments -- not in the residential

11   setting -- which was part of the bill that went

12   through two or three weeks ago.     We did it on

13   the children's bill I think as well.        So

14   whenever these opportunities come up, we will

15   have another go.

16        It's crazy to try and do it this way by

17   picking off each service as it comes up,

18   absolutely barking, we need to have a sensible

19   generic solution to this, which I think my

20   private member's bill would deliver, but as

21   I say we have come up with an alternative

22   formulation for the bill of rights report which

23   goes beyond where the wider debate is now and

24   moves much more broadly into the whole issue of

25   horizontality.

 1        Last year we did a study visit to

 2   South Africa looking at the bill of rights

 3   issue and again I was sceptical before I went

 4   and a convert when I came back on the whole

 5   concept of social and economic rights and what

 6   has become known as third generation rights,

 7   which is environmental rights.   Part of the

 8   issues we are looking at as part of that

 9   inquiry is the extent to which human rights

10   should be enforceable, not just against the

11   state but against other institutions; that's

12   the horizontality debate.   I think we came to

13   the conclusion that the only way to resolve

14   these YL type issues and also look more broadly

15   at things like environmental rights is to allow

16   direct enforcement against private bodies.

17   There is an argument about what we mean by that

18   to flesh out, but for example if your

19   environment is being polluted by a factory

20   belching out asbestos dust, should your action

21   be against the state or should you be able to

22   bring an action against the factory?     Why do

23   you have to go through a convoluted route, why

24   can't you do it direct?   You probably could on

25   the law of nuisance, but why should there not be

 1   a human right to clean air and a clean

 2   environment?    So that's an example where we

 3   think the YL debate ultimately ought to be

 4   going.    So that would then get over the whole

 5   issue of what's a private body and what's

 6   public body.

 7        MS O'LOAN:    Thank you.

 8        MS BREWER:    We have been talking about

 9   changing attitudes and I guess another way of

10   looking at that is to talk about development of

11   a positive human rights culture.    Would you

12   comment on the speed at which a positive human

13   rights culture has been developing.    You said

14   quite a bit about barriers to that.    If you

15   want to add anything further on that -- you

16   talked about top-down or bottom-up.    So speed

17   and barriers and what priorities you think are

18   needed.

19        MR DISMORE:    The speed is going backwards,

20   I think, is possibly the answer to that one.

21   It comes back to the point I made at the

22   beginning, the fact is that the ground work

23   wasn't done in the first place so we are now

24   rowing back against the tide and when you've

25   got the opposition -- and it is a party

 1   political point I'm afraid.     When you have the

 2   opposition saying we ought to repeal the Human

 3   Rights Act and it is evil from Europe, that

 4   doesn't help and the fact it is all nonsense

 5   and they couldn't do it is neither here nor

 6   there, they are saying it and it is affecting

 7   the agenda.   It is a pity and the media feed on

 8   it.   The tabloids don't go behind their

 9   statements.   I mean any (inaudible) some of

10   them might like to do that, but that's another

11   story.

12         MS O'LOAN:    We ought to have a British

13   bill of rights and responsibilities.

14         MR DISMORE:    Well, interesting you say

15   that because we have come to the conclusion

16   that you can't have a British bill of rights.

17   We have come to the conclusion that you should

18   have a UK bill of rights which deals with the

19   devolution dimension, which they hadn't thought

20   of, and we had an interesting discussion in

21   Scotland when we met the Scottish justice

22   minister to talk about these things.     If we are

23   serious about this, we have to look at the

24   devolution dimension, you know.     The right to

25   jury trial -- if we are talking about a British

 1   bill of rights, I think we have said that in

 2   the context of, first of all, what the values

 3   are which unite our society, what it means to

 4   be British, then we go on to talk about some of

 5   the traditional British values -- so the right

 6   to a fair trial -- but you have to do that in

 7   the context of -- Conservatives like to have

 8   a jury trial, (inaudible) because if you look

 9   at the Magna Carta it doesn't guarantee you

10   a jury trial, but that is part of the popular

11   myth, but that is meaningless in Scotland.     So

12   you've got to try and adapt some of these

13   things.

14        I think our report has been pretty well

15   received and what we have tried to do is go on

16   the offensive, I suppose, really, and say: well

17   we've got the Human Rights Act, we screwed that

18   up in terms of the publicity, let's not make

19   that mistake with the British bill of rights,

20   so let's ground it in what people think is

21   a discussion of what it means to be British or

22   a UK citizen, and it will mean different things

23   to different people, what are the basic values,

24   and then move beyond that into this issue of

25   social and economic rights.   The reason I say

 1   social and economic rights are important is

 2   that that's what people think their rights are.

 3        MS O'LOAN:     If I interrupt and tell you, I

 4   don't think they are unimportant, but I think

 5   I want to constrain you to human rights.

 6        MR DISMORE:     I know you are and I'm not

 7   going to argue the case for that, I'm simply

 8   saying that if we are going to start arguing

 9   the case, let's move the goalposts and start

10   arguing from a perspective that people actually

11   can relate to in a way they can't perhaps

12   relate to civil and political rights.     What was

13   very interesting is Northern Ireland on human

14   rights, which came out with enormous popular

15   support -- and when you are trying to get

16   support for this --

17        MS O'LOAN:     Can I interrupt you and tell

18   you that consistently 80 per cent of the

19   British public think we need national standards

20   of human rights.     There's huge support for

21   human rights here, it just hasn't somehow

22   managed to get translated into the common

23   dialogue about human rights.

24        MR DISMORE:     It's because we don't say

25   what we mean.     We talk about it in a generic

 1   way, so I suppose it comes back to squaring

 2   a circle that you raised with me at the

 3   beginning.   It's how do you square a circle

 4   between human rights and the subtext of that

 5   and freedom of expression?     What does freedom

 6   of expression mean to average Joe Public?       Free

 7   speech they might just get; freedom of

 8   expression isn't the same thing.     It goes

 9   beyond in some ways and restricts in others.

10   But if you say, going back to the point I made,

11   that we are going to try and find you a way to

12   give you a voice, that might mean more.

13        MS BREWER:    Can I check in terms of the

14   priorities for action, am I hearing you

15   correctly that you think the priorities should

16   be to explain to people what human rights mean

17   to them in practical terms in their everyday

18   lives?

19        MR DISMORE:    Yes.   The single biggest

20   thing I think could be done, is the

21   Northern Ireland booklet.     It was bizarre, and

22   we said to the MoJ, "You have to start

23   producing some leaflets", and what's the first

24   thing they did?    Something about law and order

25   and the rights of criminals or

 1   something: exactly the opposite of what they

 2   should have been doing.       It is a communication

 3   job and for the party with a small "p", I think we

 4   have to move on.    We have lost the human rights

 5   debate, unfortunately, but let's move it on to

 6   new territory and new ground and do it and

 7   hopefully use the bill of rights debate to get

 8   it right from the beginning.

 9        MS BREWER:    We have just produced

10   a booklet called "Ours to Own", which tries to

11   explain human rights in terms of what it means

12   to individuals.    I will get one sent to you.

13        MR DISMORE:    Thanks.

14        MS O'LOAN:    Is there anything you would

15   like to add?

16        MR DISMORE:    No.   I think it's very

17   interesting what you are doing.      We did

18   a similar exercise ourselves mainly on the

19   myth-busting side of it and came to pretty

20   horrible conclusions, and I would be surprised

21   if you don't come to some pretty horrible

22   conclusions as well.      But you are right to

23   focus on the way forward, so my view of the way

24   forward is: let's expand rather than contract.

25        MS O'LOAN:    Thank you very much, that's

 1        really helpful.   Thank you for coming,

 2        Mr Dismore.

 3   (12.35 pm)

 4                (The interview concluded)





















              TRANSCRIPT 24.10.2008
    1                                   Friday, 24 October 2008

    2     Interview with David Williams, Jenny Ashby, Ian

    3     Naysmith, Naomi Passman AMENDED TRANSCRIPT - 30th January 2009

    4   (2.00 pm)

    5               MS O'LOAN:   May I say you are very welcome

    6        and we are very grateful to you for coming

    7        today.     This is a formal evidence taking

    8        session.     If I could introduce, if you don't

    9        already know her, Dr Nicola Brewer, who is

   10        a Commissioner, and my name is Nuala O'Loan and

   11        I am chairing the inquiry for the Commission.

   12               The purpose of this inquiry really is to

   13        assess the extent to which human rights are

   14        embedded in the culture of England and Wales;

   15        to identify the barriers which have existed and

   16        which may well indeed have prevented the

   17        embedding of that culture both in terms of

   18        people's access to their rights and in terms of

   19        government agencies or public authority

   20        understanding of their duties under the

   21        legislation; to look at the examples of good

   22        practice, of which we have found many; and to

   23        identify where further activity is required of

   24        government departments, of this Commission and

   25        indeed of anybody else who could assist.

 1        You have a right to privacy and you were

 2   asked whether you would be prepared to give

 3   evidence in public and you indicated, yes, you

 4   were on the record.     If at any stage you would

 5   like to go into private session, if you

 6   indicate that to me, that would be helpful.

 7        In terms of this particular session we

 8   want to look at the impact of the Human Rights

 9   Act on policy formation within your department,

10   the impact of human rights on your role on the

11   agencies, your NDPBs, and your work in

12   particular with local authorities and, as

13   I said, the role of government in fostering

14   a human rights culture.

15        Kate is our palantypist and she will

16   record your evidence, so if you use

17   abbreviations or acronyms if I could ask you to

18   explain them.   If my questions are

19   incoherent -- which is possible -- please

20   advise me of this and ask me to explain them.

21        Finally, I invite every organisation that

22   comes to give evidence, if they would like, to

23   make a two minute statement at the start, or if

24   there's anything you would like to talk about.

25        MR WILLIAMS:     Okay, thank you for the

 1   introduction and the welcome.   First I should

 2   just apologise that I have a bit of a cold at

 3   the moment, but I will do my best to speak

 4   clearly.   I thought I would start just by

 5   introducing the team, and say something about

 6   the department and where I think our work

 7   touches particularly on issues of human rights.

 8        I'm David Williams, I am the director of

 9   communities and migration at the Department for Communities

10   and Local Government and I have with me today Jenny

11   Ashby, who heads up my race equality and diversity

12   team and represents the department on the

13   government-wide human rights champions network,

14   Ian Naysmith who works for Jenny, and Naomi

15   Passman, who is the human rights coordinator in

16   our legal department.

17        Communities and Local Government as

18   a department has overall sort of policy

19   responsibility for issues around housing, both

20   in terms of housing supply, of vulnerability (?)

21   and of issues around homelessness.   It leads on

22   regeneration and planning policy, on issues

23   around cohesion and integration, as well as

24   issues around fire and rescue services.      We

25   lead on two of the cross-cutting PSAs for

 1   government: PSA 20 on housing supply and PSA 21

 2   on cohesive, active and empowered communities.

 3        I think the areas where the department's

 4   work touches particularly on issues of human

 5   rights are in respect of the planning system,

 6   where Article 8, Article 1 Protocol 1 and

 7   Article 6 are all relevant considerations.         We

 8   have an issue -- an interest, rather, given our

 9   sort of focus, on equalities and diversity and

10   Article 14 and how that applies generally and

11   particularly in terms of service delivery

12   through local government.     We also have an

13   interest, given some of the responsibilities in

14   many areas around faith and interfaith issues,

15   for example, in Article 9.     That's what I would

16   say by way of introduction.

17        MS O'LOAN:     Thank you very much.   If we

18   move then to the first area we would like to

19   look at.   We would like it if you could explain

20   how the Human Rights Act has impacted on your

21   department and your delivery agencies, firstly

22   in terms of policy forming and, secondly, in

23   terms of the exercise of delivery functions

24   through agencies like the housing corporation.

25        MR WILLIAMS:     Well, first of all, if

 1   I talk a bit about the approach that we have

 2   taken to ensure that human rights are embedded

 3   in our policy formulation function and then my

 4   colleagues may want to supplement what I say.

 5        Our approach, I think, is very much about

 6   ensuring that there is adequate awareness of

 7   human rights legislation; having built that

 8   awareness, ensuring that staff have the

 9   necessary skills and tools to reflect properly

10   on those requirements, but to try and do that

11   in a way which embeds these issues in the

12   day-to-day work of the department, rather than

13   simply having a sort of specialist cell.

14   That's not to say, however, that we are not

15   able to draw on particular legal advice where

16   that is needed.

17        So the sorts of actions that we have been

18   taking have been around general

19   awareness-raising, guidance on our intranet,

20   the provision of training -- we are rolling out

21   an e-tool about human rights legislation, which

22   has been developed by the National School of

23   Government -- building human rights into some

24   of our underpinning processes.    So we pick it

25   up, for instance, in our equalities impact

 1   assessment work, but also through more routine

 2   management functions, so the statement of

 3   internal control, for example, that each of the

 4   directors in the department at my level and

 5   above need to produce on a twice-yearly basis,

 6   pick up how well equalities and human rights

 7   have been embedded in the processes that we

 8   operate.

 9        I think we can talk perhaps a bit about

10   local government, but I mean our approach to

11   some of the arm's length bodies will depend on

12   whether they are public bodies in their own

13   right, insofar as your interest in them is

14   concerned.   I mean, they have access to our

15   sort of central guidance, but what we tend to

16   see is that key sort of bodies will develop

17   their own guidance and own expertise.   So if

18   I take, as an example, the planning

19   inspectorate, the awareness of human rights

20   within that organisation is sort of

21   specifically built into training and guidance

22   for planning inspectors.   The sort of processes

23   and format of planning judgments and judgments

24   in appeals of its planning decisions

25   specifically take human rights into account.

 1   That in some ways is, I think, the best model,

 2   rather than it being a top-down,

 3   one-size-fits-all; it's around ensuring that

 4   particular operating arms of the department

 5   have tailor-guided expertise to fulfill their

 6   particular function.

 7        I don't know if colleagues want to add

 8   anything.     Don't feel you have to!

 9        MS O'LOAN:     Can I take you then to one of

10   the contributions we have received in your call

11   for evidence and it is how your department has

12   used the Human Rights Act to improve services

13   and it says:

14        "In the guidance ... (Reading to the

15   words) ... due account of human rights

16   provisions including when processing

17   evictions."

18        I wondered if you could tell us something

19   about the nature of that guidance.

20        MR WILLIAMS:     Yes, well, let me start,

21   and, depending on how far we get, if you want

22   a more detailed explanation we can certainly

23   send you a supplementary note.

24        I think the challenge for me around Gypsy

25   and Traveller rights is less, I think, about

 1   how well the department has got a grasp of

 2   human rights legislation, but more around the

 3   way in which Gypsy and Traveller communities

 4   are still viewed by many in society in Britain,

 5   and the degree of discrimination and

 6   misunderstanding can lead to local tensions,

 7   and makes that balancing of individual

 8   rights -- whether of the Gypsy and Traveller or

 9   of, for shorthand, what I will call the settled

10   community -- against the public interest is a

11   particularly thorny issue.

12          The response around Gypsy and Traveller

13   issues for me I think sets out a number of the

14   routes that the government has to influence

15   local government as one of our key delivery

16   partners.     We have used legislation where

17   a legislative framework seems to us to be

18   appropriate, so guidance removing exemptions

19   around local authority provided sites in terms

20   of security of tenure as opposed to private

21   sites through section 308 of the Regeneration

22   Act.     The Housing and Regeneration Act is an

23   example of how we have used a legislative

24   route.

25          On the whole our preference is to use

 1   guidance and we have provided guidance to

 2   councils on approaches to eviction, approaches

 3   to appeals, using our role to help sort of

 4   spread best practice, but also working in

 5   conjunction with second-level organisations

 6   like the Local Government Association and

 7   the Improvement and Development Agency, so there is

 8   a combination there of using legislative means

 9   and guidance and best practice to try and

10   deliver the outcome we want to see.

11        I don't know if you want to supplement any

12   of that?

13        MR NAYSMITH:     Just one additional point

14   related to the planning aspect of Gypsies and

15   Travellers.    One particular section of the

16   planning inspectors' handbook specifically

17   relates to the framework around Gypsy sites and

18   we have printed a copy of that.

19        MS O'LOAN:     That's very useful, thank you.

20   (Handed).

21        MS PASSMAN:     I was just going to add

22   something about the planning guidance: circular

23   1 of 2006.    One aspect of it was about guidance and

24   how to use enforcement powers, but the other

25   aspect of it was about helping local

 1   authorities to use the planning system to

 2   identify possible sites and to help find more

 3   sites for Gypsies, because the enforcement

 4   problems won't arise if there are enough sites

 5   for Gypsies and Travellers, so there are two

 6   aspects to the circular.     I don't know if you

 7   want us to send you copies of circular?

 8        MS O'LOAN:     I think that would be helpful,

 9   because I was concerned about not just the

10   enforcement of getting them out, but providing

11   for them.   So that is one of the challenges for

12   local authorities when you talk about

13   individual's rights.

14        MR WILLIAMS:     Yes, and I have to say the

15   principal focus of our work around Gypsies and

16   Travellers is precisely about trying to support

17   and encourage councils both to identify and

18   then take action on a combination of needs for

19   Gypsies and Travellers in terms of the

20   provision of sites, but also recognising that

21   their choice of lifestyle does not make more

22   mainstream approaches to housing need

23   a one-size-fits-all approach, so it's balancing

24   that encouragement of how we meet the needs of

25   communities with the wider population they

 1   interact with.

 2        MS BREWER:    I will come to competing

 3   rights in a minute.

 4        MS O'LOAN:    I wanted to ask you if you had

 5   specific examples of how the Human Rights Act

 6   has had an impact on outcomes delivered to

 7   service users.    You may point to this, but is

 8   there anything else you would like to draw to

 9   our attention?

10        MS ASHBY:    It may be a little early to

11   say, but I think what's in the community and

12   empowerment white paper, Communities In

13   Control, around trying to ensure that local

14   people have access to routes to exercise

15   their -- yes, exercise their human rights.      So

16   things around engagement with the democratic

17   process, making sure their voice is heard in

18   order that if there are issues around competing

19   rights, that local people feel that they have

20   routes to redress and are able to engage with

21   that democratic process.

22        I think that is motivated, although not

23   necessarily expressed in those terms, by

24   wanting to improve the quality and access to

25   some of those basic human rights.    But, as

 1   I say, those proposals are still being

 2   implemented, still to be implemented, in

 3   legislation.   So I can't give an example of

 4   a precise outcome in that case yet.

 5        MR WILLIAMS:     But I think in terms of

 6   both, you know, allowing a right of expression

 7   and the political process, and the democratic

 8   aspect of human rights, this programme of work

 9   has the potential to increase both the extent

10   and depth of communication within local

11   democracy and I think one of the issues we need

12   to be alive to, as we take that work forward,

13   is how we don't simply help those who already

14   have a voice get a louder voice, but how we use

15   these approaches to help under-represented

16   groups get their views across in local

17   decision-making and service delivery.

18        I think also, I would add, although indeed

19   the outcome is perhaps not yet clear-cut, that

20   whether it's looking at tenants or Gypsies and

21   Travellers again, some debate in the content of

22   human rights about homelessness in terms of

23   provision where people are being evicted, I

24   think it's at least got the debate going.

25        MS O'LOAN:     I mean, to go back to your

 1   initial response to me on Gypsy and Traveller

 2   sites, it's less around how government has

 3   a grasp of human rights and more around really

 4   local responses, and discriminatory responses

 5   probably, to Gypsies and Travellers.    I just

 6   wonder, to an extent, do you think there is an

 7   understanding in local government of their

 8   obligations here, so that you do get an impact

 9   on the outcome to service users?

10        MR WILLIAMS:   I think -- I mean, I think

11   there is an understanding and I think it is an

12   understanding that's growing, although if

13   I characterise the development on this issue,

14   it's tending to move forward as a result of

15   a few individual councillors who are personally

16   committed to the issues.   I think one of the

17   challenges is how we spread out that sort of

18   behaviour to be more general.

19        Now, there will be an issue, particularly

20   I suspect assessed in the context of human

21   rights, but not in terms of local politics.

22   I'm not particularly the right person to

23   comment around balancing the needs of

24   individual Gypsies or Travellers with the needs

25   of the wider electorate and, as with many

 1   issues, no doubt some councillors do that

 2   better than others.

 3        But I think we have been supported through

 4   our Gypsy Traveller task group last year, which

 5   included Jane Codona and Brian Briscoe, we

 6   have been working both to raise the profile of

 7   this issue and also in terms of how, relatively

 8   speaking, little land we would need in order

 9   for site provision to be put on a more sort of

10   sustainable and robust footing.       We have done

11   quite a bit to get that issue out of the local

12   politics and more into what I might describe as

13   a more rational sphere.

14        MS O'LOAN:     In terms of the department,

15   just a couple of questions and they are very

16   simple.   You have a set of procurement

17   guidelines and procurement is a very important

18   route for local authorities to ensure that

19   people have rights where you have a private

20   sector delivery agent.     Have you evaluated the

21   effect of your procurement guidelines?

22        MR WILLIAMS:     I don't know.    We have

23   certainly produced, I mean, specific guidance

24   for contracting for services in the light of

25   human rights.     I'm -- I can't tell you, but I'm

 1   happy to send you a note on what evaluation has

 2   been put in place.

 3        MS O'LOAN:     That would be helpful.

 4        MR WILLIAMS:     Unless my colleagues know?

 5        MS PASSMAN:     I think it would form part of

 6   the comprehensive performance assessment,

 7   wouldn't it, procurement generally, so it would

 8   be an aspect of assessing whether the

 9   procurement processes are robust and whether

10   they are serving the whole community.

11        MS O'LOAN:     But that is a different

12   question.   There is a question whether the

13   procurement services are successful and there

14   is a (inaudible) procurement process to be

15   effective, if you follow me.

16        MR WILLIAMS:     Let me just ask for a point

17   of clarification, whether it is around the way

18   in which the department itself operates

19   procurement processes or the way in which local

20   authorities or councils --

21        MS O'LOAN:     You produce guidance, that's

22   my understanding.     I've read it, I sat and read

23   it before this, and my question was whether you

24   had evaluated, that's all.

25        MR WILLIAMS:     We will let you have a note

 1   taking that forward.

 2        MS O'LOAN:     Fine.   My question was: you

 3   started off by quoting various references to

 4   the responsibilities that you have, but have

 5   you done any exercise mapping your areas of

 6   responsibility against the Human Rights Act,

 7   Mainstreaming, effectively, human rights into

 8   your areas of responsibility?

 9        MR WILLIAMS:     Yes, well, I think the

10   approach we've taken is a different one.

11   Rather than having a central mapping exercise,

12   what we have wanted business areas to do is to

13   understand the -- and (inaudible) legislation

14   but particularly then to focus on those issues

15   that are most relevant to them, for which

16   a mapping exercise is not the most effective

17   way forward.

18        The guidance that we have put out, I think

19   sort of signposts to the impact assessment

20   tools we have rolled out.      Again, it does not

21   specifically say "have you considered against

22   this article and this article", but it takes

23   staff through a process which

24   encourages -- because it forces them to think

25   through where, on a particular issue, human

 1   rights articles are relevant to their business.

 2        In terms of their access to specialist

 3   legal advice, Naomi is a coordinator, but again

 4   lawyers working in support of different

 5   areas of the department's business will have

 6   particular expertise in various bits of human

 7   rights legislation that are relevant to them.

 8   I don't think I can point to a single sort of

 9   mapping exercise, unless my colleagues would

10   like to contradict me.

11        MR NAYSMITH:     Not entirely contradict you,

12   David, but as you know CLG dates as

13   a department from 2006, but inherited many

14   previous functions of the former Office of the Deputy Prime

16   Minister, and ODPM did do a survey of its functions and did

17   an assessment of the level of human rights

18   awareness then and, as a result of that,

19   introduced a human rights training programme

20   for ODPM staff at the time.

21        MS O'LOAN:     Can I enquire, was that human

22   rights training vis a vis human rights or was

23   that -- was this about housing human rights or,

24   was it a generic human rights training?

25        MR NAYSMITH:     As we understand it, this

 1   was a generic human rights training.

 2        MS O'LOAN:     Okay, thank you.

 3        MS BREWER:   You spoke earlier about

 4   balancing rights in the context of what you

 5   were saying about Gypsies and Travellers.

 6   Looking at other kinds of so-called competing

 7   rights, say for example between perpetrators of

 8   crime and the general public, in deciding where

 9   or how to site, say, CCTV cameras; in your

10   experience do you find that the Human Rights

11   Act provides a useful framework for balancing

12   those kinds of competing rights, do you use it

13   explicitly, and do you think there's

14   a responsibility on DCLG to talk to its

15   agencies and NDPBs about using the Human Rights

16   Act as a framework for balancing those

17   competing rights in different areas?

18        MR WILLIAMS:     Let me start from the end

19   and I will work backwards.

20        I think we do have a role in engaging our

21   delivery partners with councils, local

22   government being a particular example, in the

23   way in which they understand and apply human

24   rights legislation, as indeed we do in the way

25   in which they understand and apply equality

 1   legislation.

 2        I think the question is how far that

 3   engagement goes.    So we've spoken about the

 4   legislative area, where I have explained that's

 5   necessary, and we have spoken about guidance.

 6   I think particularly for local councils where

 7   the general direction of travel in our

 8   engagement is one of devolving authority, but

 9   also with responsibilities, that our

10   relationship in this area is around helping

11   sector-led improvement, looking at how the IDeA

12   or the LGA can identify best practice and spin

13   that out through its own networks, using our

14   influence to spread some of that best practice

15   as well.    I think there's, you know, an area

16   here where we potentially can work together as

17   well, where if I think of the equalities sphere

18   you have raised some issues about not the

19   performance of individual councils but

20   collectively the extent to which, say, district

21   councils are performing well on equalities

22   duties.    That strikes me as an area where we

23   can work jointly to raise the performance of

24   the sector as a whole.

25        Where I think I would draw the line,

 1   though this may be a conversation we need to

 2   have in terms of feeding through the sort of

 3   compliance of individual councils or individual

 4   decisions, but it seems to me to be a bit

 5   beyond our day-to-day relationship with

 6   councils which, in the context of your specific

 7   question around, say, CCTV -- you know, cameras

 8   and competing rights -- I mean I can see making

 9   sure that there is a guidance and framework to

10   ensure that councils are precisely thinking

11   through those issues rather than necessarily

12   policing whether they have got the right

13   answer, and I think -- I mean, you can see in

14   a range of issues since, you know, the Act was

15   introduced, in a number of court cases, that

16   actually our understanding, the council's

17   understanding and indeed, you know, your

18   understanding of the legislation has developed

19   partly through case law as well.     So I think

20   it's a dynamic position.     But I don't know if

21   you want to add something on that, if you could

22   perhaps talk briefly about CAA, although

23   I gather --

24        MS BREWER:     We have covered that.

25        MR WILLIAMS:     That's fine.

 1        MS BREWER:    Can I ask a little bit more on

 2   any examples you can think of, of where either

 3   CLG or its delivery partners have had to

 4   wrestle in policy and service delivery terms

 5   with something seen by members of the community

 6   as competing rights -- the rights of one

 7   individual group against another -- or how you

 8   have managed to resolve that, find a balance

 9   between those rights, and whether or not the

10   Human Rights Act and its framework is

11   explicitly used to help you do so.

12        MS ASHBY:    I think one of the reasons we

13   are talking in quite conceptual terms is we are

14   not a service delivery organisation, and

15   I personally don't like the phrase, but if you

16   look at our delivery chain it is very long and

17   complex and actually what we are often trying

18   to do is to deliver policy through autonomous,

19   independently constituted, independently

20   politically directed organisations.     So finding

21   specific examples of where we may have used the

22   Human Rights Act to frame a discussion on

23   a particular decision in relation to a real

24   place is quite tricky because that's not what

25   we do, that's not what we do as a central

 1   policy department.     But I guess the closest

 2   thing I think to what you are asking about

 3   would be individual planning cases where what

 4   our role is -- and we talked about this

 5   already -- is to make sure that the Human

 6   Rights Act and the human rights discourse, if

 7   you like, is used as the framework within which

 8   those other agents will take decisions and

 9   that's why we've got an extract from the

10   guidance for the planning inspectors, which we

11   already gave you.

12        So it's more about setting the context

13   within which, as I say, decisions will be taken

14   more or less independently from us as

15   a department, rather than thinking about it in

16   specific service delivery terms because we

17   don't deliver services directly.     Does that

18   make sense?

19        MS O'LOAN:     But you do write guidance for

20   specific circumstances like procurement and,

21   really, my question is how do you factor in the

22   human rights obligations of the state, be it

23   central or local government, into that guidance

24   you are writing which should ensure delivery of

25   outcomes to service users?

 1        MS ASHBY:   Well I think we make explicit

 2   reference, so the examples we have talked

 3   about.    So the issue on Gypsy and Traveller

 4   issues and on procurement guidance, we will

 5   make sure it is in there so that the framework

 6   is clear, but then we do not directly police

 7   the delivery against that, because there are

 8   other mechanisms for doing that.   I think David

 9   mentioned the local government white paper in

10   relation to local councils.

11        MR WILLIAMS:   I mean I think the other

12   observation I would make, which goes partly to

13   a point about how helpful human rights

14   legislation is in some of these issues, is that

15   there is quite an overlap in our areas of

16   interest and in, you know, where these issues

17   come up through councils and their activities

18   between human rights articles on the one hand

19   and equality duties on the other, and I suspect

20   that councils will think, in the first

21   instance, about how they are delivering

22   services in light of their equalities duties,

23   rather than necessarily drawing a sort of clear

24   distinction between equalities and human

25   rights.   So unless it's in an area where one of

 1   the specific articles that are beyond

 2   the -- say Article 14, you know, is relevant.

 3   So I think there is a process about -- we've

 4   talked about awareness and giving people skills

 5   and getting to a point where this is

 6   proactively used, rather than reactively to

 7   changes or judicial review or whatever it might

 8   be in a way that clearly adds a distinct value

 9   to the sorts of processes that people will be

10   going through from an equalities perspective in

11   the first place.

12        MS O'LOAN:    If I take you to evidence

13   which we have heard from Gypsies themselves and

14   Travellers themselves, about -- for example,

15   there was a situation where a Gypsy Traveller

16   site that had become established, the children

17   were at school, the police moved in mid-morning

18   and moved them out and the children came home

19   from school and their families were not there,

20   which does raise a lot of human rights issues.

21   I'm not asking whether your guidance would be

22   as specific as, "Don't throw them out when the

23   kids are at school", but would it concentrate

24   their minds on the human rights impacts of what

25   they are doing?

 1        MR WILLIAMS:    Yes, I think it would.

 2   I mean, if you would like us to explain

 3   specifically how we have human rights in our

 4   duties of travelling guidance then we could

 5   send you a copy.

 6        MS BREWER:     Still in the same area,

 7   really, it's going beyond how much guidance you

 8   offer and how specific that is to particular

 9   arms of the Human Rights Act, but how it is

10   proactively used.

11        Do you have, do you operate, any tests of

12   the level and degree of understanding of the

13   Human Rights Act both amongst the staff in CLG

14   or -- and I'm conscious that Ms Ashby talked

15   about: you deliver policy and there are

16   autonomous bodies looking after their

17   responsibilities to deliver services.     But

18   testing the level and depth and understanding

19   of the Human Rights Act and how it impacts.       I

20   was struck -- you said earlier, Mr Williams,

21   when you were talking about embedding it into

22   some of your processes, I was interested you

23   referred to building it into the statements of

24   internal control.    Is that something you come

25   back and revisit to test the depth and level of

 1   understanding of the Human Rights Act?       Is

 2   there anything similar in the autonomous bodies

 3   that Ms Ashby was talking about?

 4           MR WILLIAMS:   Yes, I mean I think

 5   internally, I mean having gone through

 6   a process both before Communities and Local

 7   Government formed, in the Office of the Deputy

 8   Prime Minister, and since primarily the push,

 9   as it were -- so provision of guidance,

10   ensuring that staff in key areas had access to

11   and took advantage of training -- we are going

12   through -- I mean, I would say a renewed

13   process now of trying to mainstream both

14   awareness of equalities and awareness of human

15   rights in the department.      Now, I wouldn't say

16   that was based on a deep analytical view of

17   uptake of training or quality of policy

18   formulation, but based on an understanding of

19   how well we can see that different business

20   areas were factoring these issues into their

21   policy formulation and also just a sense that,

22   you know, a few years on it's time for another

23   push.

24           So what we have been doing -- and this is

25   taking both human rights and equalities

 1   together -- is mainstream this into the

 2   business department through clear messages of

 3   intent from the board, and through provision of

 4   refreshed training aligned with mainstream

 5   training around project and programme

 6   management.   So that picks up all of the staff

 7   involved in our key priorities and projects, as

 8   well as, you know, the development of tools and

 9   processes.

10        Looking out to councils, I would not say,

11   unless colleagues want to contradict me, that

12   we ourselves have done an in-depth analysis of

13   how well councils are aware of their human

14   rights obligations, but work that the

15   Improvement and Development Agency has done in

16   identifying the need for guidance and areas of

17   best practice would be, you know, based on some

18   form of analysis by our department.

19        But that's an area where we have been keen

20   to see sector-led improvement rather than

21   top-down improvement.

22        MS BREWER:   So would it be true to say

23   that one of the priorities for CLG is to look

24   at and explain to all the people working on

25   these issues in your department and more widely

 1   the interaction between the equalities

 2   responsibilities and duties and the human

 3   rights responsibilities and, in particular --

 4   and I think your title, Ms Ashby, is the Deputy

 5   Director for Race, Equality and Diversity, and

 6   you are also the senior human rights champion,

 7   and I would be interested to hear a little bit

 8   more about how you see those two interacting

 9   and how you talk within CLG about the nature of

10   that interaction.   So what's the, if you like,

11   inward-facing role of being the senior human

12   rights champion, as well as the deputy director

13   of race equality?

14        MS ASHBY:   I think we do talk about them

15   in the same way, which is very much in terms of

16   making better policy.   So the approach that I

17   try to take on both championing the equality

18   processes, I suppose, and having the Human

19   Rights Act in mind when developing policies, is

20   not about compliance, it is not about a kind of

21   legalistic approach; far more about the fact

22   that we want to make good policies that have

23   the intended impacts and to support ministers

24   as well.   The most powerful tools you have in

25   doing that is by thinking about the impacts of

 1   the policies on particular groups or particular

 2   individuals, and I think in some ways people

 3   find the equalities legislation conceptually

 4   easier to deal with than the human rights

 5   legislation.   I don't know whether this is

 6   something that you are picking up in your other

 7   evidence sessions.     So actually talking about

 8   them in the same breath is quite helpful, I

 9   think, in terms of making it real.     But people

10   quite often are applying human rights

11   consideration in their work, but they are not

12   necessarily thinking about it in those terms or

13   using that language.

14        MS BREWER:   So are you consciously trying

15   to draw out that language so that people are

16   seeing that, you know, if there is a particular

17   relevance to Article 14 or Article 6, do you

18   explicitly direct them back to the language of

19   the Act and are there any -- I'm sure you get

20   invited to talk to groups of staff frequently,

21   are there any particular examples that you use

22   in the work of CLG that says: because the

23   policy-maker involved in this area had in his

24   or her mind both the Human Rights Act and the

25   equality duties, they were able to produce

 1   something different and of better value, better

 2   quality, than if they hadn't had that?     Do you

 3   use those kinds of live, real examples?

 4        MS ASHBY:     We do use examples of where an

 5   equality impact assessment has produced

 6   a change in policy that means it is better

 7   received, but I will confess to you that I

 8   don't tend to dive straight into "article this

 9   or article that", because it's not always

10   helpful in engaging people.

11        MR WILLIAMS:     Naomi, do you want to offer

12   a perspective from our legal team?

13        MS PASSMAN:     Well, lawyers do think in

14   terms of article this and article that all the

15   time, and so ideally lawyers are involved in

16   policy-making at an early stage.     So if you

17   like we pick up the pieces.     If nobody has

18   thought about the human rights impacts up until

19   the point when it comes to us, they certainly

20   will do when they have spoken to us, which

21   I know is a bit more kind of defensive than

22   some of what you are looking at, but it is

23   a failsafe that lawyers will be involved in

24   looking at the sort of issues that crystallise

25   policy developments, looking at draft statutory

 1   instruments and considering the human rights

 2   impacts, drafting human rights memoranda on

 3   bills.     So certainly when the policy is turned

 4   into law, there is a strong influence from the

 5   lawyers to look at the human rights

 6   considerations if they haven't already been

 7   looked at, and often they have been looked at,

 8   but the lawyers will help to articulate the

 9   specific rights that are being looked at.

10   Provided we are involved at an early enough

11   stage, which we often are, in policy

12   development we can do that at the earlier stage

13   of policy-making rather than when you get to

14   the end.

15        MS BREWER:    Is there some similar process

16   that you or CLG are aware of for all the public

17   bodies for which you are responsible?     Are you

18   engaged in encouraging them to follow that kind

19   or another process of filtering to make sure

20   they are factoring all of the human rights

21   considerations, or do you leave that entirely

22   to the local authority concerned?     I am going

23   back to the comments you made about arm's

24   length bodies or autonomous bodies.     How do you

25   see the responsibility stretching into those

 1   autonomous bodies?

 2        MS ASHBY:     I think it depends on the body

 3   because there are degrees of separation.     So

 4   something like the planning inspectorate --

 5        MS PASSMAN:     We are the legal adviser to

 6   the planning inspectorate, so certainly as far

 7   as the planning inspectorate are concerned,

 8   they have the benefit of our advice and

 9   guidance that we agree with them and that sort

10   of thing.

11        MS ASHBY:     Whereas for local government at

12   the other end of the scale, if you like, it is

13   for them to determine.     We can offer guidance

14   and do the sector improvement work that David

15   was talking about and try to stimulate that,

16   but at the end of the day --

17        MS BREWER:     But would you take a view on

18   whether or not they were doing it themselves?

19        MR WILLIAMS:     I think not on

20   a council-by-council basis, but in terms of

21   discussions with the IDA or the LGA, I would

22   say this will tend to be in the context of

23   equalities and human rights rather than human

24   rights specifically.     Then getting through to

25   them an understanding of the state of the

 1   sector and what's going on is important for us

 2   to understand where we need to encourage best

 3   practice to develop and spread, or where there

 4   is a need for us to drive progress through

 5   specific items of guidance.

 6        MS PASSMAN:    A that's where the

 7   procurement guidance came from.     We don't set

 8   out to offer a complete package of guidance for

 9   local authorities for everything they do but

10   because the dialogue had taken place the

11   benefits of some guidance on procurement was

12   established and that's why we produced it.

13        MS O'LOAN:    I suppose it would be only

14   fair in a way if I were to tell you that I have

15   concerns about local authorities, having heard

16   a lot of evidence, and that's why we have asked

17   if you would come and talk to us.

18        I will give you some examples of where we

19   have received evidence where local authorities

20   have been very human rights based in their

21   approach and producing great results.    For

22   example, decision-makers in an education

23   department using human rights frameworks to

24   address issues of bullying and discipline in

25   schools; learning around information sharing

 1   and responses to antisocial behaviour; social

 2   workers achieving better outcomes for service

 3   users and informing decisions about

 4   unauthorised encampments.    So clearly there is

 5   a patchy, but very good understanding.

 6        My difficulty is that both LGA and IDEA

 7   have suggested the Human Rights Act is either

 8   irrelevant for most purposes -- that's

 9   Paul Cohen(?) of the LGA -- or too much for

10   local authorities -- that's the IDEA

11   consultation.    Now that really does cause me

12   concern and it won't come as a surprise to you,

13   in the light of what we have been hearing, that

14   they are calling almost unanimously for local

15   authorities guidance and specific case studies.

16   There is this feeling that they are not

17   delivering and they don't understand.    So

18   I just wondered if there is anything you wanted

19   to add in terms of steps you have taken, and

20   I do think largely Nicola has explored this

21   with you, but it is that response from the LGA

22   and the IDEA that causes me such concern.

23        MS ASHBY:    Can I say something about the

24   structure that we have put in place generally

25   to help facilitate general sector improvement

 1   because this might be an avenue that you might

 2   want to make recommendations on, if this is an

 3   area of emerging concern.     Stop me if you know

 4   this already, but there are bodies now

 5   established called Regional Improvement and

 6   Efficiency Partnerships and the idea behind

 7   them was to really galvanise this sector level

 8   and sector-driven improvement and if this were

 9   an area where the sector was feeling that it

10   wanted more guidance -- although I would be

11   interested to hear a council come out and say,

12   "We want more guidance from the CLG", because

13   frankly that's not normally the message we get,

14   but there is a structure in place and there are

15   priorities that can be set regionally and

16   sub-regionally around identifying and

17   promulgating best practice.

18        So I think again our role there has been

19   more to establish the structures and establish

20   the framework within which the improvement can

21   take place, which then provides the avenue for

22   disseminating and promulgating that best

23   practice and for peer learning because actually

24   what we found in so many areas is that's the

25   most powerful way of getting change and

 1   sustainable change within the sector, so

 2   bidding both for elected members and for

 3   officers working on particular themes, whether

 4   it be procurement, whether it be the

 5   application of the Human Rights Act in this

 6   case.

 7           MS O'LOAN:     You are moving into the CAA

 8   really.

 9           MR WILLIAMS:     Yes.   I mean, I would

10   certainly echo that and I would disagree with

11   Paul Coen saying human rights are irrelevant for

12   councils, and the positive examples showed I

13   think quite powerfully how they can indeed be

14   relevant.     I think the trick for us is how

15   collectively, (inaudible) local government,

16   sector leadership, LGA and IDEA and the

17   Commission can best help to make human rights

18   articles relevant for councils in a way that

19   doesn't simply look like some top-down

20   imposition, in which case, you are not likely

21   to get the buy-in, but it picks up precisely

22   the sort of points that Jenny has made around

23   peer-to-peer support and so on.

24           I think the general approach that the

25   sector -- and I will declare a personal history

 1   in that my previous role was working for

 2   Paul Cohen in the Local Government

 3   Association -- is that were central government

 4   simply come out with an unrequested tool kit or

 5   set of guidance saying, "This is what councils

 6   should be doing on human rights", we would

 7   be -- we are at risk of being, you know,

 8   lambasted for interfering.

 9        So the trick is how we can support and

10   encourage that sector-led appetite for

11   improvement and, indeed, that to me looks like

12   the partnership arrangements we are developing

13   with the IDEA and LGA and the local government

14   business and I think that sort of approach

15   could work in this area too.

16        MS O'LOAN:   If I take you on from that,

17   and think about all I know about CAA and I

18   think about what I have heard from local

19   government authorities -- and I have heard

20   a lot of fear that CAA and the light touch

21   inspection have heard from service users that

22   it is actually going to lead to a deterioration

23   in delivery outcomes in services.    So what

24   parts does human rights have to play in that

25   CAA, where is it factored into it?

 1        MR WILLIAMS:     Well, let me offer an

 2   initial observation, but I will ask Jenny to

 3   talk a bit about this.

 4        Firstly, I think if you look at the role

 5   of CAA's predecessor, CPA -- the comprehensive

 6   performance assessment -- the performance

 7   framework for local government I think has been

 8   an important factor in driving up service

 9   delivery and performance at a local level over

10   the last few years.     Councils and chief

11   executives care about the performance rating

12   that they get, as well as caring about the

13   service that they are delivering.

14        So the framework generally has an

15   important role to play in that service delivery

16   and clearly our intention is not, in moving to

17   a lighter touch, more risk-based assessment

18   under CAA, that this benefit will be lost.

19        The trick for me is about, one, broadening

20   out the process, and I think that this is

21   potentially useful work for the human rights

22   area, as in others, from simply looking in

23   a silo at councils through one process and,

24   say, the police through another and health

25   through another, and looking to see how the

 1   partnerships evolve is working in the local

 2   area and it has, for me, I think a more

 3   specific focus, to pick up your particular

 4   point about service outcomes, a particular

 5   point, a particular focus, on outcomes

 6   themselves.    So the targets in the local area

 7   agreement, which will form an important part of

 8   the subsequent CAA assessment, are about

 9   identifying not top-down, but in conjunction

10   with the local area and getting local people

11   involved as well.    Those are the sort of

12   priority areas for improvement in outcomes that

13   councils and their partners need to deliver

14   and, alongside work we will be taking forward

15   on citizen empowerment and engagement, I would

16   expect that process to be actually much more

17   directly relevant to the individual that

18   perhaps the priority setting process has been

19   in the past.

20        I think the difficulty in thinking through

21   where human rights sits in this process is that

22   it's predominantly a process about outcomes in

23   terms of what have you agreed to do and have

24   you done it, rather than necessarily the way in

25   which those outcomes have been delivered.     Now,

 1   to the extent that there have been challenges

 2   or progress has been less than we might like,

 3   because human rights have not properly been

 4   factored into a process, I would expect that to

 5   be picked up on a risk-based analysis on what

 6   is it that's making the veer off course.          But

 7   there is a difference about coming at it from

 8   a risk-based perception, a blanket inspection,

 9   and assessment of all top tier authorities.

10   Jenny, I don't know if you want to supplement

11   that.

12           MS O'LOAN:    I'm still confused, to be

13   quite honest, where human rights is actually

14   factored into this whole process for the

15   future.     If I take, for example, policing and

16   the police authorities and public authorities,

17   the police are now under a duty to monitor

18   their compliance with the Human Rights Act,

19   a statutory duty.       Have you any involvement

20   with that process?

21           MS ASHBY:    That's a matter for the

22   policing inspectorate.

23           MS O'LOAN:    But it would seem to me that

24   somewhere in this CAA proposal and all that's

25   underpinning it in terms of the inspectorates,

 1   there must be a mechanism through which

 2   somebody talks about, "My right to privacy, my

 3   right to housing, my right to education", these

 4   are not very high level strategic issues, these

 5   are actually practical outcomes that must be

 6   delivered and that aren't being delivered in

 7   many cases at the present time, and part of the

 8   reason why I think it will become increasingly

 9   difficult to deliver them, and we haven't

10   delivered them for ten years, and it's ten

11   years since the Act was actually passed --

12   granted, it is only eight years since it was

13   implemented, but it's something around the fact

14   that we have avoided the language for eight

15   years and it seems to me we are still avoiding

16   the language.    Is that right?   I know you have

17   a specific legal responsibility for planning,

18   but in other areas do you use the language of

19   human rights or do you use looser language,

20   perhaps -- strategic language some people call

21   it -- of respect and dignity and those things?

22        MS ASHBY:    For me, the way that CAA will

23   speak to the human rights agenda is by, as

24   David was saying, focusing on the outcomes for

25   the citizens and for different groups of

 1   citizens.     Of course the CAA is only really the

 2   kind of framework that knits the various

 3   inspection judgments of the various

 4   inspectorates, so they will still be inspecting

 5   the detail of service provision whether it is

 6   adult social care, or where some of those very

 7   specific individual rights might come into

 8   play.

 9           MS O'LOAN:   But it will be the

10   comprehensive area assessment, won't it?

11           MS ASHBY:    The individual service

12   inspections will carry on the same as they are.

13   What's different is the comprehensive area

14   assessment is looking at service delivery

15   across the partnership as opposed to just the

16   corporate performance of the local authority.

17   So on one level, as I say, the service-specific

18   inspections will still be offering that

19   guarantee of service quality, and it's often in

20   those individual kind of decisions of service

21   providers, where some of the human rights would

22   be engaged -- as you said, housing or dignity

23   or whatever it might be.      Where the CAA adds

24   a helpful dimension, I think, is by looking at

25   outcomes as a whole and looking at the quality

 1   of all of the local service provider's

 2   knowledge of their community and making sure

 3   that the services are responsive to local

 4   preferences and to local priorities.       Those

 5   sorts of things will absolutely be tested by

 6   the comprehensive area assessment layer, if you

 7   like, of this wedding cake of inspection.

 8        MS O'LOAN:     Which is risk-based?

 9        MR WILLIAMS:    Yes, but I think -- I mean,

10   what I take that to mean is that rather than an

11   inspection that looks at each area of

12   performance in the same degree of detail,

13   regardless of whether it's going well or offers

14   a particular area of challenge, that in future

15   the CAA will be most focused on those areas

16   where it can add value, and those areas will

17   vary from local area to local area.

18        Now, to the extent that that's

19   a risk-based analysis and throws up particular

20   issues of concern, there is nothing to prevent,

21   you know, a more in-depth analysis and

22   assessment if that's the appropriate next step.

23        MS ASHBY:    And indeed it will provide

24   a trigger for that if the outcomes for

25   a particular group, for example, look poor,

 1   then that might be one of the things that would

 2   trigger a more detailed inspection because that

 3   might be something that gives you to understand

 4   that the human rights of a particular group, or

 5   the balancing of human rights between different

 6   groups, isn't working because the outcomes

 7   aren't ...

 8        MS O'LOAN:     So is there potential for

 9   a breach of human rights law one of the risks

10   that you are looking at in that overall

11   strategic assessment?

12        MS ASHBY:     I mean, obviously the

13   Audit Commission are in charge of methodology

14   and it's not yet finalised so that's probably

15   a detailed question you should ask them.        But

16   my understanding is that it wouldn't

17   necessarily be a question of: has there been

18   a case that has been brought against this

19   council?     Although clearly that would be

20   a material consideration, you might not

21   necessarily have to wait for that to get a flag

22   of concern, it might be that: this local

23   partnership doesn't seem to have any

24   understanding of the different needs of

25   different communities, therefore some more

 1   detailed work might be done.     That might then

 2   uncover that the application of the Human

 3   Rights Act isn't what one would hope.     Sorry,

 4   I'm not expressing myself very clearly.        It's

 5   about looking at, as I say, the outcomes, and

 6   not necessarily the process that has led to

 7   those outcomes and if the outcomes are flagging

 8   red that would then trigger more detailed ...

 9        MS O'LOAN:     I understand that.

10        MR WILLIAMS:     I would not expect as

11   a primary focus of each exercise of each local

12   area that the Audit Commission will be going in

13   wanting to know precisely how well the council

14   has been doing against human rights

15   requirements, but were the risk-based analysis

16   to throw up a range of issues which suggests

17   that a council's grasp of human rights or

18   equalities or other issues might be a cause or

19   a barrier to further improvement, then it seems

20   entirely reasonable to assume that the process

21   will uncover that and lead to action.

22        MS O'LOAN:     You see, I have received

23   evidence earlier today that the duty to monitor

24   is critical to any achievement of human rights

25   compliance and if it is left that we have these

 1   vague rights which don't really engage and only

 2   engage when there is a breach of these rights,

 3   so that people sort of assume there's something

 4   very difficult and something very legalistic,

 5   then we will not as a state comply with our

 6   obligations under the Convention.    That being

 7   the case, if you look at it, then you face

 8   litigation, and we've seen the litigation, the

 9   human rights litigation, some of it absolutely

10   appalling in terms of governmental response,

11   you know: I think you had to be on the streets

12   for three nights and you had to prove that you

13   are seriously distressed -- you are not just

14   distressed -- before you could get some sort of

15   accommodation overnight.    That kind of

16   litigation I think is very embarrassing to

17   government and it is very expensive and it

18   takes years to get through and it doesn't

19   improve service delivery.    Whereas if there

20   were a more proactive approach on the human

21   rights front, is it not possible that we would

22   end up with much better outcomes?    I think

23   that's the challenge for us all.    It's how we

24   manage to deliver it.

25        MR WILLIAMS:   Well, I mean, yes, I would

 1   recognise that challenge, and I think it

 2   starts -- we need to be careful about starting

 3   from a premise that -- and I'm not saying that

 4   this is what we are doing, but from a premise

 5   that councils are not interested in compliance

 6   in human rights legislation and therefore we

 7   are uniformly fighting an uphill battle.

 8   Councils will -- quite apart from wider social

 9   reasons why they would want to, you know -- be

10   compliant here and would be as keen as anyone

11   to avoid court cases and judicial reviews.      So

12   it's not in their interests as an organisation.

13           MS O'LOAN:   But, Mr Williams, I have heard

14   evidence -- take, for example, the Byrne(?)

15   case.     This is a local authority case and this

16   was a lady who was not given protection of her

17   Article 8 rights.      She suffered from

18   incontinence in a wheelchair and had diabetes

19   and was left by a council in un-adapted

20   accommodation for 20 months, confined to one

21   room, unable to use the toilet.      The council's

22   failure to act was a singular lack of respect

23   for her private and family life.      She was

24   awarded £10,000 damages and the evidence I have

25   heard is that councils would rather pay the

 1   £10,000 -- that's sort of seen as the going

 2   rate now -- than sort out the problem for all

 3   the other tenants in that situation.   It is for

 4   that reason that I keep pushing.

 5        MS PASSMAN:   I am interested in your

 6   suggestion that using the language of human

 7   rights would actually promote better outcomes,

 8   because I don't know whether we should assume

 9   that's necessarily the case, because it

10   conflicts with -- our experience in discussing

11   the guidance on contracting with OGC and

12   procurement experts and with the LGA was,

13   actually, the way we got better outcomes was by

14   not using the language of human rights.      The

15   idea that we were going to encourage councils

16   to impose a blanket duty on their contractors

17   to comply with the Human Rights Act had

18   everyone throwing up their hands in horror,

19   because they thought it was some big new duty

20   being imposed on them.

21        But if you could return to the service

22   level specification and look at what's meant in

23   practice, and say to them: this means you

24   respect someone's right of privacy by the fact

25   that people in residential homes don't have

 1   their post opened, they say: we do that anyway,

 2   it is not a problem.         So by focusing on the

 3   practical outcome, we achieved a result which

 4   was going to be difficult to achieve by

 5   focusing on the strict language of compliance

 6   with the Human Rights Act.         So I think there

 7   may be circumstances where different approaches

 8   can be helpful.

 9           MS O'LOAN:    Yes.    I think (a) you are

10   dealing with a private sector agency there, and

11   (b) you are using the language, you are

12   saying: this is about somebody's right to

13   privacy, that's the reason you don't open the

14   post.

15           MS PASSMAN:    That was the reason, but it

16   wasn't expressed in that way.

17           MS O'LOAN:    I am conscious we have run out

18   of time, but Nicola?

19           MS BREWER:    Just because it picks up very

20   much what we were talking about, the language

21   of rights, but there's already lots of

22   prevalent, negative myths about the Human

23   Rights Act seen in the media, and we have heard

24   lots of evidence about that.         Could you just

25   say a bit about what you would see about the

 1   role of government generally and CLG in

 2   particular in dispelling some of those myths

 3   and, going back to the reference to the senior

 4   human rights champions network, is that

 5   something it is engaged with?

 6        MS ASHBY:   You have probably heard of the

 7   press officers' network and we have a member of

 8   our press office who is on that.   There is

 9   a couple of examples this year where we have

10   released statements or quotes or whatever,

11   following headlines in the newspapers, so I

12   think that works quite effectively.   I could go

13   into more detail if you would like, but we are

14   part of that whole system that you have talked

15   about.   It tends to be mainly, but not exclusively, in

16   relation to Gypsy and Traveller issues.

17        MR WILLIAMS:   There was an example around

18   banning prayers from council premises and our

19   response was to put out a press statement

20   saying that it's not an infringement of people's human

21   rights to be in council premises

22   where prayers are being said.

23        MS ASHBY:   I think Hazel Blears put that

24   statement out.

25        MR WILLIAMS:   So we have processes in

 1   place, but I would certainly -- we certainly

 2   don't want human rights to be the nexus of

 3   health and safety for any daft story that is

 4   running in the media.      So we do take that

 5   responsibility seriously.       I'm not saying that

 6   it necessarily means that we catch every story,

 7   but the press office is there.

 8          We do also work with councils, I think in

 9   the context of work that we do around sort of

10   tackling extremism.      We work to support council

11   press office facilities in myth-busting,

12   particularly in the run-up to elections, where

13   statements are made about the different groups'

14   access to services and so on and that's the

15   same sort of approach I think is relevant here

16   too.

17          MS O'LOAN:    Apart from that, apart from

18   the media side, how often do you meet?

19          MS ASHBY:    I think it's about once every

20   three months.       It varies depending on

21   Christmas and things like that, but it is a

22   useful kind of network, because we looked at

23   what other departments were doing with their

24   e-learning tools before alighting on

25   a particular one that we wanted to use, and

 1        it's just a useful kind of learning network as

 2        well as a mechanism for the MoJ to be able to

 3        coordinate activity across government.         So I

 4        think it's positive.

 5               MS PASSMAN:    There is a lawyers' network

 6        as well, the MoJ also came up with

 7        a cross-Whitehall lawyers' network.       We meet on

 8        a more varied basis and it depends what's going

 9        on at the time, how regularly we meet.

10        Certainly every three months.

11               MS O'LOAN:    That's very good.   I have kept

12        you late, I apologise for that.       It is very

13        interesting and obviously you have a huge

14        responsibility and we accept that, with so many

15        local authorities and so on.      Thank you.

16   (3.15 pm)

17                  (The interview concluded)









                  TRANSCRIPT 24.10.2008
 1                                   Friday, 24 October 2008

 2               Interview with Mr David Congdon
                    MENCAP amended transcript

 3   (3.20 pm)

 4               MS O'LOAN:   You are most welcome,

 5        Mr Congdon, and we are very grateful to you for

 6        coming.    This session is part of our formal

 7        evidence gathering and the purpose really of

 8        this inquiry for the Equality and Human Rights

 9        Commission is to identify the extent to which

10        the human rights culture has become embedded in

11        our culture in England and Wales, to look at

12        the barriers, to look at how people have

13        managed to find ways around the barriers, to

14        share good practice and to identify what needs

15        to be done for the future by the various

16        government departments, the Commission and the

17        government itself, et cetera.     This will inform

18        the Commission's strategy for the delivery of

19        its human rights duties.

20               We have a palantypist with us, Kate, who

21        will take your evidence, and if you use

22        abbreviations or anything of that kind,

23        acronyms, I would be grateful if you would

24        explain them for her.     You have the right to

25        privacy and you have indicated that you are

 1   prepared to give this evidence in public, but

 2   if at any stage you wish to go into private

 3   session please tell me.

 4        It is my habit -- having introduced my

 5   colleague Dr Nicola Brewer, who is the Chief

 6   Executive and official Commissioner of the

 7   Human Rights Commission, and I am Nuala O'Loan

 8   and I am chairing the inquiry for the Equality

 9   and Human Rights Commission -- to ask

10   organisations if they wish so to do, to make a

11   two minute statement at the start.       Would you

12   like to make a two minute statement?

13        MR CONGDON:    Only very briefly.     I think

14   it is fair to say that our most significant

15   piece of work as an organisation in the human

16   rights field, though I'm not sure we

17   necessarily identified it in that way when we

18   did it, was our work on health inequalities for

19   people with a learning disability where we did

20   a report which looked at policy, in 2004, and

21   made a whole range of recommendations -- but

22   not a large number, but ensuring that people

23   were not discriminated in health care

24   treatment.    It made absolutely no difference

25   whatsoever.    The DRC did their investigation,

 1   and I was on the external panel, and did some

 2   excellent work again, in my view, that made no

 3   difference.     Then we were following up our

 4   original bit of work with Death By

 5   Indifference, which really was just looking at

 6   six awful cases where PWLD died unnecessarily under the care

     of the NHS.     Now it seems we stand on the

 7   threshold of being able to make a difference

 8   and give the wake-up call, frankly, the NHS

 9   needs.     I don't think at the time, in all

10   honesty, we thought in terms of human rights

11   legislation.     We certainly thought in terms of

12   basic rights of people and I must admit we

13   probably had some difficulty sometimes

14   distinguishing whether we were talking about

15   equal rights or human rights, and in some ways

16   it didn't matter.     The fact is that people were

17   getting an awful deal.     That would be my

18   opening.     We also do work in the social care

19   field as well.     Those are the two main areas we

20   are involved in.

21        MS BREWER:     My first question is really

22   going to be about what, in your view, are the

23   top human rights issues or priorities affecting

24   people with learning disabilities and their

25   families in England and Wales today?     You

 1   talked about health inequalities and the social

 2   care, but both in terms of -- I would be

 3   interested to hear a little bit more about your

 4   view of the top few human rights issues,

 5   thinking about it, and therefore top priorities

 6   facing people with learning disabilities and

 7   their families today.

 8        MR CONGDON:   That's surprisingly difficult

 9   to answer, actually.    I have never thought of

10   it in quite those terms.

11        I think probably the most fundamental

12   thing is that generally too many people regard

13   people with a learning disability as lesser

14   citizens.   Therefore, they are not just

15   a disadvantaged group, they are a disadvantaged

16   group amongst a load of disadvantaged groups.

17   It's not always obvious and people don't always

18   articulate it in quite that way.     I mean the

19   parallel I would give would be in the race

20   field.   Sometimes people quite openly will say

21   "I hate black people" or whatever.     In the

22   disability field that's less likely.     It's much

23   more subtle.   But hidden behind that is not

24   putting the same value on the lives of people

25   with a learning disability and I would say that

 1   is the most fundamental thing: valuing the life

 2   of someone with a learning disability,

 3   particularly those with the most profound

 4   disabilities.   I think that's a really

 5   fundamental issue for our society.   That's both

 6   at the start of life -- does society let

 7   someone live and then later on -- at what

 8   stage do you actually take the view that the

 9   quality of life is not worth maintaining?

10        The second area, which I think is linked,

11   is the issue I mentioned around health and the

12   appalling lack of care that people who are

13   unable to communicate for themselves -- we were

14   focusing on learning disability, but frankly

15   anyone who is unable to communicate for

16   themselves will get a pretty poor deal.     I know

17   Age Concern do a lot of work on old people.

18        The third issue is that broad point about

19   social care.    Where people are dependent -- if

20   someone is dependent on someone helping them

21   get out of bed and eat, they generally speaking

22   will get the support to do that.   But where you

23   need support to do other things, like simply

24   going out and doing something, that is the area

25   where people's basic rights get trampled on,

 1   because you go through a complicated assessment

 2   of need, whatever that actually means.      But no

 3   underlying fundamental principles which

 4   say -- let's say from an example, and I am not

 5   distinguishing between old and young people

 6   when I say this, but someone of 25 and 30 is

 7   going to want to go out and about a bit, not

 8   all the time.   They might want to go out

 9   socially of an evening to the pub, they might

10   in the day want to go bowling or something --

11   there are all the issues around employment,

12   which I won't even talk of in terms of this

13   example, but that's a big issue.   But to do

14   those things many of them need support and

15   those with the most profound disabilities will

16   get 24 hour's support but those, say, with

17   moderate or less severe learning disabilities

18   very often won't get enough support to enable

19   them to do things.   Now at what stage that

20   becomes a fundamental breach of their human

21   rights in terms of the narrow definition of the

22   law -- and I am not a lawyer, although some

23   people say I am, I'm not sure why -- and

24   degrading and inhumane treatment is very much

25   a moot point.   I think it is more subtle than

 1   that.     If you are forced to stay

 2   indoors -- I use the emotive terms, languishing

 3   at home with nothing to do -- day after day and

 4   week after week, at what stage is that really

 5   a fundamental breach of human rights, whether

 6   the narrow legal definition or not?       I would

 7   say that would be the third big issue.

 8           MS BREWER:    Independent living can

 9   sometimes be couched in those terms.

10           MR CONGDON:    This is very interesting,

11   this is why I was finding the question quite

12   hard to answer.

13           The independent living one is a really

14   interesting one.       Parents have an absolute

15   responsibility in law to their children up

16   until the age of 18.       After the age of 18 they

17   don't.     Frankly, our society wouldn't survive

18   if parents didn't carry on with that

19   responsibility after the age of 18 and many

20   want to and that's great and that's fine.          But

21   actually, why shouldn't an adult with

22   a learning disability have the same opportunity

23   to leave the family home as anyone else?          If I

24   would have been having that discussion a few

25   years ago, I would have said by the time of 25,

 1   they stay a home a little bit longer, but they

 2   should have the opportunity.

 3        What actually happens in practice is this.

 4   If parents dig in at a very young age -- say

 5   18, or 19 or 20 or 21 -- and say, "We are not

 6   having them back", the state will come in and

 7   will provide them with the support in either

 8   a residential care -- I will come back to

 9   residential care support in a home -- or

10   independent living.   If, however, they take

11   a very responsible route and say, "No, we want

12   to look after our son or daughter, we think

13   they are still a bit young to leave the family

14   home, and by the way we don't really trust

15   services to deliver everything that will make

16   their life pleasant, safe, all those sorts of

17   things", what they will then find is they might

18   not get any other opportunity for their son or

19   daughter to leave the family home until they

20   themselves are very elderly.   We did a report I

21   think in 2001 or 2002 called The Housing Time

22   Bomb that made just that point.   It wasn't

23   a new problem, it is a problem that has been

24   there for forever and a day, but it is getting

25   worse because years ago parents, if they had

 1   a son or daughter with a learning disability,

 2   their reasonable expectation is that their son

 3   or daughter would die before them.     That's not

 4   true anymore and that's posing some very

 5   interesting issues for social care.

 6        So we did a manifesto recently called

 7   Making Rights a Reality, and we say people with

 8   a learning disability should have the

 9   opportunity to decide where they live and who

10   they live with.     Now that's a little bit broad,

11   but is we all have that

12   opportunity.     It doesn't mean to say that we

13   actually can pick the £1.5 million mansion we

14   want to live in, but we do get the opportunity

15   within reason.     People with a learning

16   disability don't usually get that opportunity

17   and what is even worse is, when they do leave

18   the family home -- and this is true whether

19   they go into residential care or supported

20   living -- the research that was carried out by

21   Eric Emmerson at the University of Lancaster --

22   it was a big survey for the Department of

23   Health called People with a Learning

24   Difficulty -- showed that over 60 per cent

25   didn't have a choice of where they lived or who

 1   they lived with, even when they had moved out

 2   of the family home.       Now if that's not a breach

 3   of peoples basic human rights I don't know what is.

 4   It's not being couched in those terms, but

 5   that's the reality of how the system really

 6   works at the moment.

 7           MS BREWER:    Just checking, you say it is

 8   not couched in those terms, but would you say

 9   that your publication, Making Rights a Reality,

10   would you say that you have drawn on the human

11   rights framework to produce that?

12           MR CONGDON:    That's a really good

13   question.     I would like to turn around to you

14   and say: absolutely, 100 per cent, yes.       I

15   think it was implicit rather than explicit.

16           MS BREWER:    Was that a conscious choice?

17   Was there something about the language of

18   rights and the framework that you thought:

19   let's be careful here?       What was it?

20           MR CONGDON:    To be honest, what it was, was

21   this.     There are disagreements, and I have been

22   reading some of the excellent -- work that has been

23   done by the British Institute for Human Rights.

24   There is some nervousness in some quarters

25   about the language of human rights because of

 1   where it has been misrepresented over

 2   terrorism.   So we had an ambiguity, probably

 3   deliberately -- and as I wrote most of it I

 4   will claim it was my fault -- about whether we

 5   were talking about equal rights or human

 6   rights.   To be honest, I didn't think at the

 7   end of the day it necessarily mattered,

 8   although I would probably prefer to have used

 9   a human rights framework for it.     So I actually

10   think it is more powerful.   It is more powerful

11   if we can get the language right and not get

12   hung up by some of the bits that get a lot of

13   notoriety in the press.   I have found that

14   personally quite disappointing, because I think

15   it clouds the debate and, as I say, it doesn't

16   matter whether people understand which article

17   says what, that's for the lawyers.

18        So when I would use the term "human

19   rights" would be to describe the things I was

20   talking to you about, because I think they are

21   very basic and I actually think -- I'm an

22   optimist on this -- I think if explained

23   properly, the public would understand it.

24   Because the Death By Indifference stuff was

25   a classic.   If you turn around and say these

 1   people died unnecessarily and a to number of them this

 2   happened to.    Tom, who is described in there and others,

 3   didn't get the pain relief they needed.     I mean

 4   what could be worse?    They didn't get the pain

 5   relief actually because they were regarded as

 6   lesser human beings and that I think is an

 7   important point.    So yes, I would, in that

 8   sense, prefer to describe it in a human rights

 9   framework.    I think definitely for us in the

10   disability field is this: we've got quite

11   a strong piece of legislation called the

12   Disability Discrimination Act, so we flit

13   between the two.    If we could get a common

14   language in the disability lobby on that, on

15   the two together, I think it would be highly

16   beneficial.

17        MS BREWER:    Thank you.   From a slightly

18   different angle, and looking at the provision

19   of public services, the Joint Commission on

20   Human Rights have talked about how an increased

21   understanding of the human rights principles

22   can be a very powerful way of improving

23   provision of public services.     Is that

24   something you would agree with, from the

25   perspective you bring from Mencap?

 1        MR CONGDON:     I think, yes.   I think

 2   without any doubt.     I think what's interesting

 3   about all of it, regardless of whether you have

 4   human rights legislation, it's about treating

 5   people respectfully, it's about respecting

 6   people's dignity, all those things, and others

 7   could describe that probably far better than

 8   myself.   The thing that is odd about it all is,

 9   in one sense it is much easier to understand in

10   the health field partly because we've done the

11   work on it, but partly because I think people

12   can relate to that better.     The example I would

13   give there would be food in hospitals, whether

14   it's for the elderly or anybody else.      People

15   can understand that.     They don't think about it

16   in terms of human rights legislation, they just

17   think it's wrong, it's just plain wrong.

18        So I think if we get on to that sort of

19   language with people, people would readily

20   understand it.     You know, it is about trying to

21   get people in doing their jobs in the public

22   sector, whether they are delivering care, where

23   you think that would be relatively easy --

24   although surprisingly it's not and I find that

25   bizarre, but then the people doing the

 1   planning, you know, I was going to say "the

 2   faceless bureaucrats", but that's unfair, but

 3   people thinking about what level of support

 4   they are going to give to people, they need to

 5   get into that mindset and ask the

 6   question: what sort of life does that give to

 7   the individual if we only give them tuppence

 8   worth of services?     So if they could get into

 9   that mindset I think that would be a big way

10   forward.

11        I don't incidentally think it's going to

12   happen simply by them producing policy

13   documents.   I think they've got masses of

14   policy documents.     I think a lot of it is about

15   leadership within the various organisations.

16        MS BREWER:     Dealing with health though,

17   for the moment, and picking up your point about

18   not just policy documents, do you know about

19   the Department of Health's Human Rights in

20   Health Care initiative, and do you find that

21   initiative useful in terms of offering the kind

22   of leadership you were referring to there and

23   what do you think about its impact on patients

24   with learning disabilities, because there are

25   five pilot trusts, as I understand it, that are

 1   rolling this out.

 2        MR CONGDON:    It has had very little impact

 3   on us.   Now that may be our fault -- and it

 4   really may be our fault.     I printed off some of

 5   the documents they have produced on this, but

 6   I suspect -- and I'm not wanting to be

 7   over-critical on this, because I think there is

 8   good will in terms of producing the documents.

 9   I think they produce so many documents that

10   none of them get read and I think a lot of the

11   stuff they produce is quite difficult for front

12   line practitioners.

13        I think it's more than just producing the

14   documents, it is about leadership throughout

15   the organisation.     I mean, I mentioned the DRC

16   inquiry and, as I say, I was on the external

17   panel and I remember at the first meeting of

18   that, chaired by David Wolfe, who is an

19   excellent barrister, I said: I think the

20   problem is it's going to be no-one's

21   responsibility this, they are all going to pass

22   on responsibility.     Sure enough, it got passed

23   backwards and forwards.     When we inquired of

24   the Healthcare Commission, for instance, "Why

25   don't you really look at the health experiences

 1   for people with a learning disability on the

 2   equalities side", it was, "We work to the

 3   framework laid down by the Department of Health

 4   and they have quite a complicated framework

 5   which lay-people wouldn't understand", and the

 6   language is impenetrable, domains and that sort

 7   of stuff.     The Department of Health officials

 8   when they came along said, "It is down to the

 9   Healthcare Commission".     That, I think, is part

10   of the problem: no-one was really wanting to

11   accept responsibility.     The actual response

12   finally on the DRC inquiry was, I think,

13   pretty derisory.

14         Now what I cannot answer is your point to

15   what extent is the work they have done had any

16   impact.     We've not noticed it but, as I say,

17   that may be us.

18         MS BREWER:    Thank you.

19         MS O'LOAN:    Can I move on to why we were

20   in this place where the work has had no impact,

21   and the earlier work, and we are eight years

22   on.   You may have talked to some degree about

23   this already, but what do you think are the

24   biggest barriers to the achievement of full

25   compliance with the Human Rights Act and

 1   changing public authorities and the way in

 2   which they provide services to people with

 3   learning difficulties?

 4        MR CONGDON:   If you think about it in

 5   terms of the health side, it is probably the

 6   best area to focus on -- I will be happy to go

 7   to the other examples if you want.

 8        I think the first bit is -- and this

 9   sounds trite and I would like to expand

10   it -- is training.   Everybody says training is

11   important, and it is, but the reservation I

12   would put on that is, training on its own isn't

13   going to achieve anything, because it's not

14   actually understanding in great technical

15   detail what a learning disability is; it's not

16   about needing to understand in great technical

17   detail what the health difficulties of people

18   with learning disabilities are, things like

19   having a greater propensity to epilepsy, for

20   instance; it's about values.   That again sounds

21   trite, but that is about getting people to

22   respect the people they are dealing with and

23   looking at them as individuals.   So that means

24   exposing people in the health service to people

25   who have profound disabilities.   Let me give

 1   you an example.     We produced a CD called "Meet

 2   the People", and it had six video clips and

 3   stories about six people with profound

 4   disabilities.     The thing that comes across when

 5   people see it is: they are all individuals.

 6   They are not simply people with profound

 7   multiple learning disabilities.     They have

 8   complex needs, they can't usually communicate

 9   verbally, et cetera, et cetera, but you see

10   things that make them happy and things in

11   a sense that make them sad and when you start

12   to see things like that, the penny starts to

13   click.   So that's very useful.

14        It's also useful to get health

15   professionals -- and when I say that I mean the

16   1.3 million staff in that sense, to have to

17   come across other people with a learning

18   disability, where the needs might not be so

19   great but there will be communication barriers.

20   The classic thing is accessible language.       You

21   mention acronyms, life is full of acronyms and

22   one thing that people with learning

23   difficulties hate is acronyms and complicated

24   language and all those sorts of things.     If you

25   get doctors and nurses to have some training,

 1   not in great technical detail, then actually

 2   the penny starts to drop and they have to

 3   adjust when they treat patients.     There are

 4   some greater complexities, yes, but where there

 5   are greater complexes they should be able to

 6   call on specific resources.

 7          But I come back to the point about

 8   leadership.    I think this is really, really

 9   important.     If there isn't a culture which

10   says -- in our hospital let's say, because

11   hospitals are the most difficult, more

12   difficult than a GP's surgery, for

13   instance:     are we satisfied that we are giving

14   good quality healthcare to marginal groups, in

15   this case people with a learning disabilities?

16   What steps are we going to take to ensure we

17   are?    What sort of monitoring procedures do we

18   have in place?    Do we create a culture where if

19   something goes wrong it feeds through to the

20   chief executive, for instance, and then the

21   chief executive takes a concern?     When the

22   cases in Death By Indifference -- the

23   Martin Ryan case that never even got

24   reported, it is a serious untoward incident.        The

25   chief executive didn't know until quite long

 1   on.   Fortunately they are responding very well

 2   in that hospital now, so that's good.   But

 3   there wasn't a culture saying: something has

 4   gone wrong here, we have had someone quite

 5   young die in our hospital, what happened?     So,

 6   yes, you need that training to give some

 7   understanding, but it's not rocket science.

 8   That's a word I use quite often on that.

 9         The one bit where you do have to get

10   a strong message is this.   If you or I go to

11   a doctor, 80 per cent or whatever it is of the

12   diagnosis is based on what you tell the doctor.

13   If you can't communicate, and let's say you've

14   got pain, then you won't get those signals.     So

15   the advice that some of the people we have been

16   consulting with, doctors we have been

17   consulting with, their threshold for

18   intervention should be lower so they should

19   intervene with greater urgency because they are

20   not going to be getting all those signals.     Now

21   that isn't a terribly complicated message -- as

22   well as things like listening to parents and

23   carers and things likes that.   Now if they

24   start from the premise that here is someone, an

25   ordinary human being, yes, who has an

 1   intellectual disability, and I'm going to do my

 2   damnedest to make sure they get the same

 3   quality of outcome, then you will see a change.

 4   That's really is the sort of message and it

 5   won't be because the doctors are thinking

 6   "Article 3 or Article 8", it will be valuing

 7   individuals, valuing them as human beings.     My

 8   view would be valuing people as human beings is

 9   actually about human rights.    Does that makes sense?


11        MS O'LOAN:    So if we look at particularly

12   the people whom you represent, people with

13   learning disabilities, you talked about people

14   articulating what's wrong with them to the

15   doctor and that's difficult.    It would be much

16   more difficult to articulate their rights, so

17   where do you see the importance of advocacy and

18   all that?   How important is it that they know

19   in the first instance?

20        MR CONGDON:    That's a really great

21   question, because one of the things is that the

22   advocacy in this country is pretty thin and is

23   actually very, very serious.    That applies both

24   to those with moderate learning disabilities

25   and right the way through the spectrum.     Those

 1   with more ability, they will still find it

 2   difficult finding their way around the system.

 3   We get lots of phone calls from parents about

 4   their adult sons and daughters.    It is very

 5   hard to find your way around the system and an

 6   advocate is very valuable.    It becomes even

 7   more invaluable when someone either lacks

 8   mental capacity or has not full mental

 9   capacity.

10        As I understand it, the early evidence from the

11   independent mental capacity advocates is that they are

12   not being called in often enough and I think

13   that's a crucial point.    There is a lot of

14   ignorance of the law in terms of capacity to

15   consent.    There is a lot of ignorance still

16   around the laws around capacity.     I mean, you

17   are talking about independent living as an

18   example and too many people as I said get

19   forced to move against their will.     I would

20   say -- it's quite funny really, this, and this

21   is why I think the human rights approach is

22   really, really good.    If you start from the

23   principle of protecting people's human rights

24   and people having choices and all those sorts

25   of things, and yes you might still believe deep

 1   down it is better for someone to live in

 2   a supported independent living situation than

 3   residential care, what do you do when

 4   confronted with a situation where someone has

 5   been living in a residential care home for

 6   20 years and social services come along and

 7   say, "Good news, we are moving you, we have

 8   a change of policy we are moving on"?      My view

 9   is that if that individual doesn't want to

10   move, their right not to move should be

11   respected.     It is not an absolute right but,

12   insofar as you can, that should be respected

13   because we wouldn't want to be forced to move

14   against our will.     You may sometimes face that

15   fierce compulsory purchase and a bulldozer, but

16   in general we wouldn't want to move against our

17   will.

18           Now, in that situation you really do need

19   an advocate.     Now, –this might not mean an

20   independent mental capacity advocate, as they are quite

21   limited in the circumstances in which you will

22   get one.     You will get one if someone

23   recognises you are entitled to one, that's the

24   first stumbling block, but for major decisions

25   like moving house and major health treatment,

 1   if you are un-befriended, well, that's okay, but

 2   what about if you live with your family?

 3   Families are great advocates, but what about if

 4   your family don't feel they are good enough at

 5   advocating?   Because it is actually quite hard.

 6   You need an advocate in those situations,

 7   because I think the advocate is there to

 8   represent, in that sense, the individual.

 9        When I get difficult phone calls -- to be

10   honest, when I get a difficult phone call from

11   a parent -- and I do respect the views of

12   parents, but equally I also respect the rights

13   of the individual, and you never know all the

14   details.   When they say to me, "There is

15   a dispute and social services won't listen to

16   us", all those sorts of things, my

17   advice is to insist they appoint an advocate

18   for your son or daughter, right?     Because that

19   then gives you the comfort that someone is

20   making a determined effort to protect the

21   rights of that individual and I think if -- I

22   was just thinking if Tom Clarke MP was here

23   back in 1986, I think it was called the

24   Disability Person's Representation Bill, that

25   had a clause for advocacy in it that has never

 1   been invoked and I think advocacy is absolutely

 2   essential.

 3        MS O'LOAN:    If we move on, and I'm going

 4   to come back to what the government and

 5   Commission should do about all these problems,

 6   but the majority of our witnesses have talked

 7   about the negative portrayal of human rights in

 8   the media and particularly in the print media

 9   and that's a barrier to the growth of human

10   rights in England and Wales.     I wonder if you

11   could give us your view of what accounts for

12   that, but more particularly do you think that

13   the government and the EHRC could do more to

14   address the issue?

15        MR CONGDON:     I think what accounts for

16   it -- and I am probably straying on to

17   difficult territory, which as a member of the

18   public I could do adequately, but as Head of Campaigns

19   of Mencap I have to be careful.     I mean, to me,

20   it is about some of the difficulties around

21   prisoners and terrorists and some of the media

22   presenting it in that way.     But what's

23   interesting about it, which is one of the

24   things I like about the human rights

25   legislation, is the concept of proportionality.

 1   I think that is something that needs to be got

 2   across much, much more.     So it's not black and

 3   white.    I don't know whether this is true or

 4   not, but I suspect that some of the situations

 5   that have been put into glorious technicolour

 6   maybe situations that either it has been got

 7   wrong or whatever, or proportionality has not

 8   really played the big part that it should.       I

 9   think it's very important to get that point

10   across.     It's also important I think to get

11   across some of the successes that have

12   occurred, although I say that with some slight

13   hesitation because I think sometimes you are

14   never too clear whether it has been human

15   rights legislation or some other bit of

16   legislation that has actually done it, with

17   human rights being -- I'm not sure "the icing

18   on the cake" is the right words to describe it,

19   but it has not been the decisive factor.

20        But being able to show -- and I think

21   there was a case, and you would obviously know

22   more than me, there was a lot in the BIHR

23   document, I think there have been examples of

24   a husband and wife in a home and they were

25   split up.     I think that is a classic example of

 1   an insensitive authority, "Oh, it's too

 2   difficult to let you live together in a double

 3   room".   I mean that is pretty appalling and

 4   those sorts of examples I think would give much

 5   greater public confidence in the legal

 6   framework and avoid some of the negative

 7   coverage.

 8        MS O'LOAN:    If I just take you on from

 9   that, we have had evidence given to us that

10   medical professionals sometimes -- I struggle

11   how to put this without doing them an injury,

12   but sometimes do not understand that patients

13   actually have rights or have entitlements.

14   Rather, they give out decent treatment and it

15   is like a benevolent gift which they give to

16   the patient, and it is very paternalistic

17   possibly, and the question is: if you shifted

18   that and used more specific human rights based

19   language, would that increase the likelihood

20   that health care professionals would actually

21   focus on the person as a whole rather than on

22   the fact they have learning disabilities?       So

23   they are a lesser person, as you said,

24   et cetera, et cetera.

25        MR CONGDON:    Optimistically I think I

 1   would say yes.    I can't prove it but I

 2   think -- we've moved, I think, as a society

 3   from being very deferential to being very

 4   challenging and that I would argue as being

 5   very, very positive.    Some people may take

 6   a different view.    But I think there are

 7   aspects in the medical field where that's not

 8   the case.    You go to the doctor, the doctor

 9   decides what's wrong with you and whether you

10   are going to have the opportunity to see

11   a consultant.    Now you and I might get very

12   stroppy and upset about that and if we don't

13   like it we create a bit of a fuss.     If you've

14   got a learning disability, the chances are you

15   don't create a bit of a fuss and you miss the

16   treatment.

17        Now if you could get across -- and I'm not

18   going to argue that this is necessarily easy,

19   but if you could get across that people have

20   rights in that way, I think that, without

21   necessarily going over the top -- don't ask

22   what I mean by "going over the top" but there

23   is a balance on all of these things.       You as an

24   individual have the right to decide whether you

25   want to have treatment, for instance, and it is

 1   a bit more difficult if you want to demand

 2   treatment, but certainly in terms of having

 3   treatment imposed on you, I think that's very

 4   important.   If you talk to older people they

 5   still think -- I'm exaggerating, but if the

 6   doctor says you have to have this operation,

 7   they have it.     Things are changing, and that is

 8   important, people have that right to decide

 9   whether they have the treatment or not.

10        MS O'LOAN:     And also the converse of that,

11   which is the "do not resuscitate" which older

12   patients do face.

13        MR CONGDON:     Yes, the "do not resuscitate"

14   is a particularly important area, because there

15   is evidence that DNRs often get put

16   inappropriately on younger people with

17   a disability and Nuala will have come across

18   because I know she is involved on the

19   Commission with, what's her name

20   Jane Campbell -- it is late on a Friday

21   afternoon, sorry, but the point she makes, and

22   I think this really encapsulates it, and she

23   doesn't have a learning disability, but they

24   were going to put a DNR on her, until her

25   husband went home and got a picture of her and

 1   said this is what she is like normally. It’s

 2   sometimes actually said, but not always because

 3   people tend to be a bit cautious about saying

 4   it, what are you going to do when it comes to

 5   the issue about do not resuscitate, or the

 6   issue about having treatment or not.        You just

 7   try and get them to recognise that patients

 8   have rights and should be respected as

 9   individuals, really.        That goes to the heart of

10   that.

11           MS O'LOAN:     It is a right to life issue.

12           MR CONGDON:     It is, absolutely, without

13   any question.        It is interesting that, because

14   in one of the cases in Death By Indifference,

15   which was over cancer treatment, and in a case

16   we have had since of a kidney treatment where

17   sadly the young man died, there were issues,

18   real issues, about doctors taking a prejudicial

19   view.     The difficulty is, in all these things,

20   that it is very well covered up, because what

21   they will do is emphasise all the difficulties

22   of treating, which you can quite easily do, you

23   can put the obstacles in the way, but if you

24   started from the premise of: I've got before me

25   someone who is 19 years old and, let's say, got

 1   a major kidney problem, what do I normally do

 2   for any other 19-year old?    And you should do

 3   the same.   And, yes, it is going to be

 4   difficult and you are going to get into all

 5   these difficulties when someone resists

 6   treatment and they clearly don't understand

 7   that, and that's the point about

 8   proportionality: if you are in A&E after a road

 9   traffic accident and your arms are flailing

10   around and you are just about to die, they will

11   sedate you and give you all the treatment

12   needed to save you, but if you have got

13   a profound learning disability and are doing

14   the same, that will be used often as an excuse

15   not to treat, because your rights as an

16   individual are not being respected.

17         MS BREWER:   You talked earlier about the

18   relationship between the human rights

19   legislation and the Disability Discrimination

20   Act and how having this powerful legislative

21   tool in the DDA, that tends to be what you look

22   to.   Do you have any thoughts on the

23   relationship between the Human Rights Act and

24   the DDA and how Mencap could use that, either

25   specific thoughts on what at the start is being

 1   done now or what we should move to with the

 2   prospect of a new equalities bill?

 3         MR CONGDON:    Can I deal with the DDA bit,

 4   because I think this will reinforce what I said

 5   before, because I'm not sure about the linkage.

 6         The DDA, with its concept of reasonable

 7   adjustments, is actually pretty good, although

 8   it is quite difficult and all the enforcement

 9   issues are difficult.     Then we've got this

10   public sector duty which we think is

11   potentially very, very powerful, but won't work

12   unless there's proper monitoring by impairment

13   groups and we know there's some rows in

14   government about that.     And Jonathan Michael's

15   report on the health side, I'm really delighted

16   with that, because you do need to be satisfied

17   that you are delivering a good quality service,

18   not just to disabled people but the different

19   groups within that population of people.

20         I mean, employment is a good example

21   there.     50 per cent of disabled people are in

22   employment, and those with a learning

23   disability known to services are only one in

24   10.   Now you wouldn't know that from those

25   figures.     So that public sector duty in the DDA

         1   we think is potentially very, very powerful

         2   indeed and we would certainly want that to be

         3   replicated in the single equality bill.

         4        MS BREWER:    With you that could be done

         5   through specific data collection.

         6        MR CONGDON:    Yes.   The bit that I find

         7   more difficult is to say the extent to which,

         8   in most of the stuff we are doing on a daily

         9   basis, do we think in terms of human rights

        10   legislation as opposed to DDA.    The bit we

        11   think in terms of human rights legislation is

        12   the right to life, and we made quite a lot of

        13   press comments not just around the

        14   Charlotte Wyatt case, which was a very, very

        15   difficult case, but there was a case of a girl

        16   in America where the mother wanted her sterilised-- and

        17   was the one in this country more recently and

        18   we said again you've got to judge that on what

        19   you would do for any other 8-year old girl, or

        20   12-year old girl, or whatever, and we attacked

        21   actually the professionals for hiding behind,

        22   "Well, okay, it can go to court and be

        23   decided".   That, frankly, was a bit of

        24   a cop-out by the professionals involved.       That

        25   I think was a very real example of where we

 1   definitely think in human rights terms.

 2           I'm not sure, and I may be wrong on this,

 3   I will probably think about it afterwards, I'm

 4   not sure there are many other areas -- when

 5   I say "day-to-day" you know what I mean in that

 6   sense -- where we think necessarily in terms of

 7   human rights, although I would have to say

 8   this.     I think increasingly when you look at

 9   court judgments, and I am thinking of the

10   Hounslow case, which we think is a fantastic

11   judgment where it said there's a corporate

12   responsibility, you can't split between two

13   departments, and in a sense it doesn't really

14   matter, ultimately, which bit of law was the

15   decisive factor, but that the duty of care

16   to vulnerable adults was very important and not

17   just that the social services department had

18   a duty of care, but the housing department had

19   a duty of care.

20           Now, we would like to see how we can use

21   that to get better opportunities for people

22   with a learning disability more generally.

23           MS BREWER:   Coming back to, first of all,

24   the role of your own organisation and then the

25   role of government and then a Commission like

 1   this, the Equality and Human Rights Commission,

 2   in terms of highlighting the positive effect

 3   of, for example, a good judgment on the basis

 4   of what you could say was a human rights based

 5   approach, what responsibility do you think

 6   Mencap has to highlight the positive impact of

 7   a human rights based approach there?

 8        Separately, what's the responsibility of

 9   the government or the Equality and Human Rights

10   Commission?   What kind of role would you like

11   to see government and this Commission play in

12   highlighting those positive human rights?

13        MR CONGDON:   This is not meant to be

14   a cop-out but I suspect it is a much bigger

15   role for government and EHRC.   I think what we

16   will do, and are doing, is look increasingly at

17   producing better quality guides for our members

18   about your rights, but done in a

19   non-legalistic way.   I think the problem for

20   official bodies is when they produce things

21   they very often have to go through a slightly

22   more formalistic or bureaucratic route and

23   sometimes the message gets lost, you know.     If

24   it starts off covering the articles, you've

25   normally gone to sleep by the end of it.

 1           Now I don't criticise people for doing

 2   that, because it is more difficult for official

 3   bodies.     We will certainly build on that.   The

 4   big difference for the voluntary sector, being

 5   quite candid about it, is that we've not got

 6   the resources to have in-house lawyers, we

 7   scrounge legal advice and some of the firms are

 8   brilliant in helping us.     But our understanding

 9   will never be at the same level.     But what we

10   would really like, I think, and I will come

11   back to the roles more specifically, but I

12   think what we would really like is a body,

13   whoever it is I do not mind, providing in very

14   good lay terms what some of the key judgments

15   are and what the implications of them are.

16   I know it is not easy, but it is very hard to

17   keep abreast of them and the ramifications.       To

18   what extent does a particular judgment -- does

19   it become -- when it becomes case law, so that

20   they can be prayed in aid, et cetera,

21   et cetera.     So there's advice needed in that

22   way to enable the message to be promulgated.

23           I think you asked then about government

24   and the EHRC.     I think it is quite interesting

25   that.     I think government clearly has a public

 1   information role about trying to get across to

 2   the public better -- and I'm being slightly

 3   vague here deliberately because I'm struggling

 4   with what I would probably ultimately think

 5   would be the difference of the role of

 6   government as opposed to the EHRC.     But one

 7   thing government should do, it should be very

 8   clear about its role -- and when I say

 9   government I mean government and local

10   government, but their role as public sector

11   bodies in embracing human rights in everything

12   they do and making sure that their services

13   that are provided are not in breach.     That is

14   probably far more important for them to do

15   than the public education.   You see the point I

16   am really making, because that will have an

17   enormous impact on people.   What is the point

18   of government passing legislation and then

19   doing very little to ensure that it's

20   implemented?   I will give an example on that

21   and I will be deliberately slightly

22   controversial here because I think it's an

23   important point.

24        The issue of the Disability Equality Duty,

25   which I mentioned just now, clearly EHRC has

 1   a responsibility to enforce that.    But our view

 2   is, well, what's the role of the Secretary of

 3   State?   They provide all the public money and I

 4   think there is a danger that government pulls

 5   back and says, "We've set up the EHRC and it is

 6   your responsibility", and I think that's wrong.

 7   I think that's a negation of their

 8   responsibility and I make the same points in

 9   terms of the Human Rights Act, although there

10   are differences because it is not a public

11   sector duty in quite that way.

12        The EHRC is more difficult to answer

13   because you are a comparatively new body and

14   from a disability point of view we clearly had

15   very good relations with the DRC and ironically

16   before they were abolished they were starting

17   to get into their stride with their inquiry

18   into health care which was very, very good.

19        I think the EHRC clearly can do the public

20   education thing, but I also think -- and I'm on

21   slightly tentative ground here so please

22   forgive me -- I'm not one of those who will

23   turn around and say that you always take people

24   to task by going to court, because certainly,

25   talking to lawyers, lawyers say to me that

 1   actually the threat of invoking legal action is

 2   often as powerful.     However, to put the other

 3   side of the coin, I think -- and don't ask me

 4   what case I would refer to, because I don't

 5   know, but I think occasionally you need some

 6   pretty high profile test cases to illustrate

 7   the point that enough is enough, in whatever

 8   the field will be.     Because I think that then

 9   sends a very, very, very powerful message and

10   it's getting the right one.     I mean, having

11   said that, I am very conscious in the field of

12   social care and indeed on those health care

13   cases I mentioned that we have not gone down

14   the legal route, partly because of the

15   difficulties of going down the legal route, but

16   actually the main prize is systemic change and

17   you don't always get systemic change from

18   a court case.

19        MS BREWER:    Though you can.

20        MR CONGDON:     Though you can, this is the

21   dilemma.

22        MS O'LOAN:    We have a research project for

23   these specific issues.

24        MR CONGDON:     That's fantastic because

25   sometimes you can go down the legal road and

 1   get the wrong ruling and that can be

 2   disastrous.     So I would in no way want to see

 3   a cavalier approach just to do a court case

 4   because there is a court case, but I do think

 5   there is a role for legal action.     Indeed when

 6   the Joint Commission on Human Rights reported

 7   on learning disability, we had an all-party

 8   group on learning disability and

 9   Lord Victor Adebowale had a little argument

10   with Andrew Dismore, the chairman, over the use

11   of law.     Well, I must admit I deliberately rode

12   in behind Victor Adebowale because I felt there

13   was a danger of the approach from the joint

14   committee, or particularly the chairman -- he

15   is very good, so I wouldn't want to say

16   anything to the contrary, but a danger that you

17   can pull back too much.     It is a judgment,

18   isn't it?     It is a judgment of when it is

19   appropriate to actually do it and not just do

20   it for the sake of it.     I do think legal cases

21   have a role to play.     But the problem for

22   members of the public is they would find it

23   hard to understand.

24        I couldn't remember for the life of me,

25   because I remember when it was all being set up

 1   there were concerns about that -- that then is

 2   a role for government to consider reviewing the

 3   law to give that power, because I do think

 4   that's important.

 5        MS BREWER:     Can I come back to the Human

 6   Rights Act and Disability Discrimination Act.

 7   You know the provision in the DDA where there

 8   is both the provision around what's

 9   a reasonable adjustment and the circumstances

10   in which discrimination is justified, is there

11   a place for giving weight to an individual's

12   right under the DDA?     You are coming to

13   a judgment on what's a reasonable adjustment

14   and whether or not discrimination was

15   justified.

16        MR CONGDON:    Can you try and clarify?

17        MS BREWER:     What I'm thinking about is --

18   obviously it is a matter of judgment whether

19   a particular adjustment that is requested is

20   reasonable or not, or whether there were

21   justifications for it.     I don't know whether,

22   in particular circumstances, you could use the

23   Human Rights Act to give greater weight to an

24   individual's right when deciding how much

25   adjustment is reasonable.

 1        MR CONGDON:    I don't know.   That's not

 2   meant to be a cop-out, I just don't know.        I think one

 3   with would need to look at some situations to

 4   say, "Okay, why was it not possible to get an

 5   outcome that's reasonable, using the reasonable

 6   adjustments"?    I think it's a really

 7   interesting question.    As I say, I vacillated

 8   between the two and deliberately on occasions

 9   used the language vaguely, because we were

10   actually talking about rights, some of which

11   are because the person has a disability and

12   some because they are a human being, do you see

13   what I mean?    And a different legal framework.

14   What I think is interesting is, in general, the

15   DDA hasn't succeeded in solving that original

16   thing I said about the value and also that

17   social care bit about what is it reasonable for

18   the individual -- I don't want to use the

19   "adjustment" word or even the "reasonable"

20   word, but for an individual's expectation of

21   support to enable them to exist like an

22   ordinary human being, if I can put it that way.

23   The DDA doesn't seem -- and I may be wrong,

24   there might be lawyers who can give you

25   evidence that would say I am, I would be

       1   delighted to be wrong.   Let's say you've got

       2   a severe disability, a severe learning

       3   disability, and you really can't get out and

       4   about unless you have a support worker.     It's

       5   not a marginal thing, and you can even be in

       6   a wheelchair to make it more dramatic in that

       7   sense, and social services assess you and say,

       8   "We will give you four hours a day, which will

       9   enable you to get up in the morning, have lunch

      10   and go to bed", as crude example.   If, say, you

      11   thought you needed more to enable you to go

      12   out, would that be disability discrimination?

      13   I mean, I personally always found the concept

      14   of disability discrimination in terms of

      15   delivering social care to disabled people quite

      16   a difficult one to get my head around, because

      17   in a sense the reason you are getting any

      18   support is because you are disabled.     Now that

      19   might be me having an intellectual block on

      20   that, but on the other hand it is clearly, I

      21   would argue, a breach of your basic right as

      22   a human being to be trapped indoors now, I'm not going to

      23   into a debate whether it is right to family

      24   life or whatever, but otherwise you are trapped

      25   indoors doing nothing and at what stage would

 1   that trapping in doors be regarded as being

 2   degrading?     It certainly wouldn't be torture,

 3   but degrading.     So there is a relationship

 4   between the two, but I think it's quite hard to

 5   see that interaction.     It certainly merits

 6   exploration.     If you can get a research project

 7   on that, that would be very, very useful.        But

 8   the important point in all this is we talk

 9   about loosely -- and it has become very

10   jargonistic -- a rights-based agenda.        That

11   really is what you get into, and in the social

12   care field more and more people are saying you

13   need a framework based on entitlements.        Well,

14   entitlement, rights, whatever those words are,

15   in order to enable people to participate as

16   equal citizens.     If that's the basic human

17   right, which I would argue it would be, that

18   would then hopefully square that circle.

19        MS O'LOAN:     Can I ask you a simple

20   question, to which I should know the answer but

21   don't, but your Death By Indifference, the

22   Parliamentary Ombudsman was looking at those,

23   has she reported?

24        MR CONGDON:     No, no, what's actually

25   happened is --

 1           MS O'LOAN:    Because I was going to get the

 2   report.

 3           MR CONGDON:    No, what has happened is the

 4   draft reports have gone to the families and we

 5   are involved in those draft reports and there

 6   are obviously queries that have come up as

 7   a result, points of clarification, and we were

 8   hoping the final reports would be out by the

 9   end of this month and it looks like being a bit

10   later.     They will be interesting, because they

11   will throw a bit of a spotlight on some of the

12   detail that obviously you don't get and

13   couldn't expect to get in the Jonathan Michael

14   report.

15           MS O'LOAN:    I just thought that Death By

16   Indifference is a very good piece of work and I

17   had noticed that you said here it was due in

18   July.

19           MR CONGDON:    Yes.

20           MS O'LOAN:    I think that concludes what we

21   wanted to ask you, Mr Congdon, and we are very

22   grateful to you for coming today.

23           MR CONGDON:    Thank you very much.   I look

24   forward to seeing your report.

25           MS O'LOAN:    It will be late March/early

 1        April, I think.      We are going to try and keep

 2        it very simple, it will not be a huge weighty

 3        document.

 4               MR CONGDON:    That's good.

 5               MS O'LOAN:    My challenge is to ensure that

 6        it contains all that it needs, whilst remaining

 7        comprehensive and simple and that's a big

 8        challenge.

 9               MR CONGDON:    And hopefully it will have an

10        impact and deal with some of the points we were

11        talking about, getting across to people what

12        it's really about as well.

13               MS O'LOAN:    I would hope so.     We will just

14        model that as we go through it.         Thank you very

15        much indeed.

16   (4.15 pm)

17                  (The interview concluded)