Joint Committee on Human Rights Appendices to the Minutes of Evidence


APPENDIX 19

Memorandum by JUSTICE

INTRODUCTION

  JUSTICE is an independent, all party legal human rights organisation, which aims to improve British Justice through law reform, research and policy work, publications and training. It is the British section of the International Commission of Jurists.

  This short memorandum responds to the request for views from the Joint Committee on Human Rights, as part of the Committee's assessment of the impact to date of the Human Rights Act. It sets out JUSTICE's initial assessment of the preparation for and implementation of the Human Rights Act by government, five months after the Act came into full force. It also suggests possible medium-term directions for the work of the Joint Committee.

  In bringing the Human Rights Act into law, the government has provided a strong foundation on which a lasting culture of human rights can be built. Important work has been done by this government, in enacting the Human Rights Act, to make human rights standards central to the exercise of public power, and to build a wider culture of human rights, based on the Act. The Act makes human rights central to our society, and establishes the principle that public power will be constrained where it impinges unjustifiably on these rights, and where it falls short of principles of proportionality and non-discrimination. These new ideas can provide an unprecedented opportunity for reassessing the exercise of public power in our society. The opportunity presented by the Act should be used to the full by all branches of government.

  JUSTICE very much welcomes the establishment of the Joint Committee on Human Rights, which in itself represents an important step in the development of human rights culture. We welcome this opportunity to put forward views to the Committee, and look forward to working further with the Committee in the future.

1.  THE GOVERNMENT'S ATTEMPTS SO FAR TO IMPLEMENT THE ACT AND TO BUILD A HUMAN RIGHTS CULTURE

  Considerable work has been done by the government, and in particular by the Home Office Human Rights Task Force, to ensure adequate preparation for the coming into force by the Human Rights Act. Below we consider the effectiveness of the implementation of the Act in all three branches of government.

  At the outset, there is a general point to be made that the government has not taken the opportunity, as it might have done, to emphasise the great constitutional significance of the Human Rights Act. The Act has not been presented by government as constitutional change akin to a Bill of Rights, with real transformative potential. Instead, it has been presented as a legislative measure, albeit an important one, not essentially distinct from other reforming legislation. This approach conditions and may restrict to some extent the nature and depth of the human rights culture that is now to be developed.

  The government's approach to the Human Rights Act has also been characterised by an emphasis on individual responsibilities, an emphasis which at times may have eclipsed the significance of human rights (and the responsibilities of public power) which form the core values of the Human Rights Act. JUSTICE would stress the importance, in establishing a culture of human rights, of consistent government and ministerial support for the Human Rights Act, and for the human rights principles which it incorporates into UK law. The government should strengthen public confidence in the idea of human rights, as an opportunity rather than a threat, and as capable of balancing rights and interests effectively.

The Human Rights Act in Parliament

  From the outset, the foundations of the new culture of rights were strengthened by the co-operative spirit which by and large prevailed in the parliamentary debates on the Human Rights Bill. Throughout the passage of the Bill, the opposition played a constructive role in the development of this key piece of legislation. Since the Act has become law, however, there has been a lesser degree of parliamentary consensus in regard to the Act, which has on occasion been the subject of negative and dismissive comments.

  For a broad-based culture of human rights to be developed, it is important that the Act should not be seen as the political property of one party or tradition. The Human Rights Act has the potential to improve parliamentary accountability and scrutiny; as such, it could be used to improve confidence in the parliamentary process. However, there is a risk that this potential could be left undeveloped if the Act were to be perceived as party political. The Act provides an effective mechanism by which the government can be held to account in parliament, as has been amply demonstrated by members of the opposition in parliamentary debates on a number of recent Bills. These developments are to be welcomed and it is to be hoped that the potential in the Act in this regard will continue to be fostered by Parliament.

  The potential effect of the Act in Parliament in improving transparency has also been hampered by the restrictive approach adopted by the government to section 19 statements, and the failure to disclose legal advice as to the human rights compatibility of Bills. The reasons given by Ministers, in parliamentary debate, for the human rights compatibility of provisions of Bills, have often been inadequate and insufficiently detailed. This has in turn impeded the capacity of members of both Houses of Parliament to engage with the human rights issues raised by Bills. Since section 19 of the Act has come into force, there have been several pieces of legislation passed through Parliament—notably the Terrorism Bill, the Asylum and Immigration Bill and the Football (Disorder) Bill—which have raised serious human rights concerns. Each of these Bills has contained a section 19 statement of compatibility with the Human Rights Act. JUSTICE and others, have questioned the appropriateness of the section 19 statements made in respect of these Bills; however, they have passed into law without many of the concerns as to their human rights compatibility being laid to rest. It is likely that this situation would have been considerably improved, had the Joint Committee on Human Rights been in place during the passage of these Bills, to provide an independent assessment of their human rights compatibility.

The Human Rights Act and the Courts

  As is discussed in more detail below, the courts have in the main given effective and balanced consideration to the Human Rights Act, and have been willing to use Convention rights to review existing caselaw, legislation and practice. Implementation of the Act in the courts has been greatly assisted by the comprehensive human rights training programme instituted by the Judicial Studies Board, which laid a firm foundation for a culture of human rights in the courts. The Judicial Studies Board's effective preparations for the Act were a model of forward planning.

The Human Rights Act and Government Department and Public Authorities

  In the absence of a Human Rights Commission, the preparation of government for the coming into force of the Human Rights Act fell to the Home Office Human Rights Task Force. The work of the Task Force has been successful within its terms of reference, although its limited objectives and resources have meant that the preparation for the Act within government has not been wholly consistent or comprehensive.

  JUSTICE view, based on our involvement on the Human Rights Task Force, is that departments, at a senior level, have given serious consideration to the impact of the HRA on their work. Departments have made comprehensive reports to the Home Office Task Force on their preparation for the Act, and detailed human rights training has been made available to many legal and policy staff. From our experience of involvement in training for government departments, we have seen that serious attention has been given to the need to train legal and policy staff in the Human Rights Act and Convention rights. The Lord Chancellor's Department, for example, made full use of the long lead-in period to 2 October 2000, by instituting a comprehensive programme of training for its staff. However, it is our understanding that the extent of preparation for the Human Rights Act, and in particular the level of training, has varied as between government departments.

  Where there have been serious gaps in the preparation and training for the Human Rights Act has been at a lower level, in public bodies for which government departments are responsible, including, for example, health authorities, education authorities, and the prison service. Preparation for the Act by these bodies has been very variable, with some public bodies, such as the police engaging in detailed audits of policy and practice, as well as extensive training, whilst others have taken a much less proactive approach.

  This can be attributed to a number of factors:

    —  The Home Office and the Task Force have had an advisory role only regarding the Human Rights Act, with no central authority in relation to the work of other government departments on the Human Rights Act. Moreover, the Task Force's brief was to focus on preparation for the Act at the "top end" of government departments (and the Task Force was resourced on this understanding) so that many of the smaller or second-tier public authorities were neglected.

    —  Most importantly, the limited resources of the Home Office Human Rights Unit, the Task Force, and the bodies represented on the Task Force, have made it impossible for them to provide comprehensive information and training to all the public bodies affected by the Human Rights Act. The limited resources of the Task Force organisations, including JUSTICE, has meant that such work as they have been able to do in providing training and information on the Human Rights Act has been largely reactive, in response to demands by government departments or public bodies. They have not been adequately resourced to ensure consistent or comprehensive preparedness for the Act amongst all public bodies.

    —  The loose relationship between government departments and the public bodies they are responsible for has made it difficult for departments to require a high level of preparation on the part of these bodies.

    —  Although many public bodies do have the benefit of in-house legal expertise, these sources of legal expertise may prove insufficient in relation to the Human Rights Act. The Convention principles introduced into UK law operate in a way different to most "black letter" domestic law. This has meant that some in-house legal advisors, without the assistance of specialist expertise, had difficulties in advising on the Act.

  What can be drawn from these observations is that, in the months leading up to and following the implementation of the HRA, the absence of a Human Rights Commission was acutely felt. There was a need for an independent, properly resourced body, with a centralised responsibility and authority to provide training and expert advice on the impact of the Act.

  What may prove to be a serious inadequacy in the preparation for the Human Rights Act, however, has been in relation to the NGO sector. This sector includes organisations likely to be considered quasi-public authorities under the HRA, and organisations involved in the provision of advice to the public on topics raising human rights issues. The lack of information available to such organisations has been a double limitation on the development of a human rights culture. It has meant that they as a public authorities have been unprepared for the impact of the Act on their work, and it has meant, that in many cases, they are not as well prepared as they might be to inform members of the public about their rights under the Act. Again, organisations such as JUSTICE and others on the Task Force have provided some information and advice to this sector, but they have not had the capacity to do so comprehensively, and have in general responded to individual requests for training or advice. The gaps in this sector further underline the need for a Human Rights Commission.

  Issues also arise in relation to the public information campaign on the launch of the HRA. The small budget available for the campaign meant that the Act was not promoted as heavily as it might have been. For example, information on the Act was not sent to everyone in the country. Although a useful study guide was prepared by the Task Force, there was perhaps a need for more basic introductory material to be made available across a wider spectrum. There was also a need to counter the negative media reporting of the Act, and to emphasise that the Act could provide real benefits for real people, which could have been better meet by a more comprehensive and better-resourced information campaign.

  Shaping a culture of human rights is a long-term project. It cannot reasonably be expected to take place in a matter of months. But precisely because the project is long-term, there is a need to continue to manage the incremental change which the Human Rights Act will bring about. The implementation of the Human Rights Act should not now be regarded as accomplished, for good or ill: the Act's effective implementation will continue to require the efforts and resources of government. In JUSTICE's view, it is not vital that the long-term work of implementing the Human Rights Act should be taken on by a Human Rights Commission.

2.  CONSEQUENCES FOR LOCAL AND NATIONAL GOVERNMENT FOR POLICY FORMULATION AND FOR DELIVERY OF SERVICES

  As mentioned above, the extent of the preparation undertaken by public authorities for the Human Rights Act appears to have varied widely. Some auditing of practice and policy by public bodies has been relatively defensive. However, some very positive and useful auditing of current practice has taken place. For example, ACPO's audits of areas of policing have been considered and comprehensive and are likely to result in improved good practice. It is evident from the audits that ACPO saw the Human Rights Act as a real opportunity to reinvigorate policing and improve public confidence in it. ACPO's human rights auditing has also brought increased transparency: for example, for the first time, police guidelines on the use of lethal force have now been made public.

  The Act is likely to have an impact in areas where it has been seen positively as a standard of good practice, rather than as a threat to be acceded to the minimum extent necessary. In local government, for example, the Local Government Association has promoted the right to fair trial under Article 6 of the Convention as a standard of good practice which can be usefully applied to a range of local government decision-making procedures, regardless of the technicalities of its operation (Deciding Rights, published jointly by the LGA and JUSTICE). JUSTICE has also emphasised, in the training it has conducted for public bodies, that the HRA provides an opportunity and a useful benchmark against which to assess good practice.

3.  THE CONCRETE IMPACT OF THE ACT TO DATE

  It would be premature at this stage to deliver any verdict on how the Act is impacting on everyday life. However, some indication of the real impact which the HRA will have can be discerned from some of the decisions now being made in the courts. Broadly, the courts have dealt with the Act in a balanced and fully considered way. In this, the benefits of the training programme put in place by the judicial studies board can be discerned.

  To implement the Human Rights Act effectively, the courts will need to review current caselaw, applying the new standards set out in the Act. In the main, it appears that the courts are applying the Act in a way that will provide a basis for public confidence in its provisions. However, the Act has been applied more conservatively by the courts in some areas than in others. In family law, for example, the courts have engaged in balancing exercises, stressing the need to take into account the rights to family life of all those involved in disputes regarding childcare, to give procedural rights in appropriate cases to fathers in adoption cases, and in general to re-consider pre-Human Rights Act caselaw which may not take sufficient account of the family life rights of children and other family members. (In Re O) Yet the courts have, to date, been reluctant to use the Act to engage in the same degree of review in criminal law cases, and in relation to asylum and immigration.

  The Courts have also been willing, in key cases, to use the Human Rights Act to afford protection to vulnerable and unpopular individuals. They have found that the imposition of an automatic life sentence may breach the prohibition on inhuman and degrading treatment, where an offender does not constitute a significant risk to the public (R v Offen). In R v Venables and Thompson, the court acted to protect the rights to life and physical integrity of the two defendants, under threat on their release from detention from violence from members of the public.

  Of particular significance is the requirement in Article 6 that there should be an independent and impartial tribunal in all cases which determine civil rights and obligations. This requirement has the potential, which is now beginning to be realised, to affect real and extensive change. Perhaps the court decision likely to have the broadest impact has been in relation to planning law, where the power of the Secretary of State to call in planning applications has been found to breach the Article 6 requirement of independence and impartiality (The Alconbury case).

  The wider consequences of this decision are likely to be that many administrative decision-making procedures will have to be reviewed, and that it may be necessary to ensure that a full appeal on the merits, to an independent and impartial tribunal, is available from many such decisions. This development has the potential to change long-standing administrative arrangements, which lack transparency and openness, and which, though they almost certainly did not conceal real bias, have had the potential to at least give the appearance of bias.

4.  HOW THE EFFORTS OF THE JOINT COMMITTEE ON HUMAN RIGHTS SHOULD BE DIRECTED

  For the reasons detailed above, JUSTICE fully supports the intention of the Committee to make an initial examination of the case for the establishment of a Human Rights Commission, as a priority. JUSTICE also agrees that the scrutiny of Government Bills for human rights compliance should be both an initial priority, and a continuing focus for the Committee's work in the medium term. Subject to our future submissions in the Committee's later more detailed consideration of its role in parliamentary scrutiny, we would emphasise here the importance of its role in the scrutiny of Bills, as well as in the assessment of draft legislation and proposals in Consultation Papers. In light of the increasing resort to framework legislation, which frequently defers detailed regulation of human rights sensitive issues to regulations guidelines, or codes of practice, it would also be appropriate for the Committee to consider the human rights implications of such instruments (without, of course, duplicating the work of the Delegated Powers and Deregulation Committee).

  In addition, we would propose four other possible avenues for the Committee's work:

    —  The Committee could usefully conduct sectoral enquiries into the compliance of specific public sectors (health, education, social services, the community legal service, etc) with Human Rights Act standards. Such an enquiry could consider the work that has been done in preparation for the Act within the sector, and assess the work that remains to be done in ensuring human rights compliance and disseminating information about the Act, as well as indicating what policies may need to be developed in light of the Act. This would be important in addressing the uneven preparation for the Human Rights Act within the public sector, and identifying areas needing further work. It might also be useful in identifying areas where legislation or legislative amendment might be appropriate.

    —  To complement its legislative scrutiny function, the Committee could focus enquiries on areas of public policy where either legislation is already under consideration, or where the Committee itself identifies a possible need for legislative change. For example, sentencing policy, or a possible law of privacy, are both areas in which legislation could be envisaged, and which could benefit from the Committee's consideration. This type of enquiry would allow the Committee to be proactive, rather than solely responsive to existing legislative proposals.

    —  It would also be appropriate, in light of the Committee's focus on the Human Rights Act, for it to consider the extent of the Convention rights included in the Act, and in particular the need for any further additional protocols to the ECHR to be ratified and included within the Act. In particular, an assessment of the need to incorporate the recently agreed Protocol 12 to the ECHR on discrimination, and of the possible impact of such a step, could usefully be conducted by the Committee.

    —  We would also suggest that the Committee focus on the protection available under the current law to particular vulnerable groups (such as, for example, Gypsies, or people with disabilities) and the extent to which this protection is sufficient to satisfy the Human Rights Act. It could also be assessed whether the Act offered additional or sufficient protection to such vulnerable groups, and whether additional measures were needed.

March 2001


 
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