Joint Committee On Human Rights Appendices to the Minutes of Evidence


1.  Memorandum from Commission for Racial Equality

EXECUTIVE SUMMARY

  1.  The Commission for Racial Equality (CRE) recommends the creation of a Human Rights Commission with the following functions:

    —  To promote public awareness of human rights through media and educational institutions and other appropriate means.

    —  To provide advice and training to public and private bodies to bring their practice and procedures within human rights standards.

    —  To advise Government and Parliament on the conformity with human rights standards of legislation and the current policies and practice of public authorities.

    —  To use litigation strategically.

    —  To advise and assist individuals and groups who believe their rights have been infringed.

    —  To conduct formal investigations into the conduct of bodies carrying out public functions where there it is believed they are contravening the ECHR.

    —  To become a centre of expertise on international and European human rights law and use this expertise to develop the human rights culture in England, Wales and Scotland.

  2.  There should be a separate Human Rights Commission for Scotland. The statutory composition of the Human Rights Commission for England and Wales should include at least one designated Commissioner for Wales or a Welsh Advisory Committee. There should be a duty on regional Human Rights Commissions to consult each other and procedures for co-ordination and sharing of expertise on UK and international matters.

  3.  The Human Rights Commission should co-exist with the equality commissions but it should work closely with them. We recommend that there be representation from the equality commissions on the Human Rights Commission.

  4.  The Human Rights Commission should be independent of government. We recommend that the Chair and Commissioners be appointed by the Joint Committee in accordance with the Nolan principles.

  5.  The Human Rights Commission should be accountable directly to Parliament (through the Joint Committee on Human Rights). The audit office should have an audit role as it does for other non-departmental public bodies.

INTRODUCTION

  1.  The Commission for Racial Equality (CRE) welcomes this opportunity to submit its evidence to the Joint Committee on Human Rights on the proposal for a Human Rights Commission for the UK.

  2.  The CRE was established by the 1976 Race Relations Act. Under that Act the CRE's basic duties are to work for the elimination of unlawful discrimination and to promote equality of opportunity and good relations between persons of different racial groups, as well as to keep the Race Relations Act under regular review.

  3.  In the 1976 Act Parliament combined in a single body the law enforcement role previously carried out by the Race Relations Board and the promotional and educational role of the Community Relations Commission. In responding to the call by the Joint Committee for evidence on the need for a Human Rights Commission, we draw on our experience since 1977 of working to enforce the law directly and by assisting individual litigants to provide information on rights and responsibilities and to promote positive measures to eradicate racism and to secure racial equality.

  4.  The CRE welcomed the enactment of the Human Rights Act 1998, which by incorporating the ECHR creates important positive rights and, to a lesser extent, creates improved rights against discrimination. In addition, we have consistently supported the establishment of a Human Rights Commission (or a Human Rights Commissioner) to promote and enforce these rights.

  5.  We welcome the Joint Committee's structured approach in seeking views of external bodies. We recognise that there are complicated issues that need to be addressed, not least the relationship between the existing equality commissions and a Human Rights Commission, most of which can be explored in responding to the questions that have been posed.

  6.  While Question 1 lists certain functions which may not currently come within the remit of existing agencies, we submit that the starting point, when considering the creation of a Human Rights Commission should be the objectives of a Human Rights Commission.

  7.  It is the CRE's view that the objectives for a Human Rights Commission should be those identified by the IPPR consultation paper, "Human Rights Commission for the UK: the options". They are:

    —  To promote compliance with human rights standards by Government, public and private bodies.

    —  To promote public awareness and acceptance of human rights principles and standards and their importance in our daily lives.

    —  To enhance the ability of Parliament to scrutinise legislation and policy to protect human rights.

    —  To reduce the possibility of litigation by scrutinising legislative proposals and existing measures for conformity with the ECHR.

    —  To enforce human rights standards strategically by initiating legal proceedings and backing test cases.

    —  To help individuals to get redress when their rights have been infringed.

    —  To contribute internationally to the development of better standards of human rights protection.

  These objectives should help to determine the nature of the functions and powers which are given to a Human Rights Commission.

THE QUESTIONS

  What, if anything, do you think a Human Rights Commission might add to the current methods of protecting human rights in the United Kingdom? In particular, are there useful functions in connection with protecting human rights and developing a culture of human rights which do not fall within the remit of any existing agency in the United Kingdom, such as:

    —  fostering a human rights culture in the United Kingdom; and

    —  education in human rights.

  8.  The CRE has over 20 years experience of promoting and giving effect to the Race Relations Act 1976. Based on this experience we submit that for the Human Rights Act to have the impact that was indicated in the Government White paper Bringing Rights Home there needs to be an independent Human Rights Commission to foster and sustain a human rights culture.

  9.  We do not disagree with those who argue that certain manifestations of racism constitute a violation of human rights and in our work we strive to create a "human rights culture", but we recognise that our ability to do so is limited by the scope of the Race Relations Act.

  10.  During the Parliamentary passage of the Race Relations (Amendment) Act 2000 we were already aware of the need to provide advice and assistance in human rights cases, and we proposed an amendment that would have given the CRE the power to assist cases under the Human Rights Act 1998 involving a complaint of racial discrimination. The amendment was rejected by the Government on the grounds that it wanted the Joint Committee on Human Rights to consider this issue as part of its deliberations on the need for a Human Rights Commission. The CRE trusts that we will hear separately from the Committee on this issue.

  11.  In the meantime, the CRE's statutory remit means that the promotion of human rights awareness and human rights education is not a function which we can discharge effectively. The Human Rights Act 1998 provides for a set of positive rights for individuals and has important constitutional implications; yet, there is no single body with overall responsibility for fostering a human rights culture or providing human rights education, only a small group of expert lawyers, policymakers and NGOs. There is a role for the NGO and voluntary sector to play in fostering a human rights culture but they cannot do this without further information, training and co-ordination. Thus, while human rights belong to everyone, knowledge is currently exclusive.

  12.  In addition, based on our experience, there would appear to be a very large and as yet unfilled demand for more information, education and training. For example, the CRE ran a series of internal training seminars for staff to which we invited Racial Equality Council Directors. Since then we have received repeated requests from RECs and other external organisations to provide further information and training for their staff and their management bodies. There are training courses provided by practitioners and expert NGOs but these reach a limited audience and there is no monitoring for consistency or quality.

  13.  Furthermore, from discussions, meetings and conferences held by the CRE in all parts of Great Britain, it is very clear that there is a need to foster a human rights culture; to achieve this there is the inseparable need to provide education and training on the rights and responsibilities that give shape to a human rights culture. In our view this can be most effectively done by a single body which, with an overview of how the Human Rights Act 1998 is developing, can deliver uniform and consistent information to a wider audience than can any other agency with a more limited focus, for example, the Information Commissioner, or the equality commissions.

Education and training for public authorities

  14.  A key role for a Human Rights Commission is education and advice to public and private bodies on how to comply with their obligations and standards. Providing guidance and Codes of Practice for employers and service providers has proven to be an important and valuable area of work for the CRE and the public.

  15.  It is suggested in the Call for Evidence that the Government is not yet persuaded that the benefits accruing from a Human Rights Commission would justify the expenditure. We would submit that the costs of a Human Rights Commission cannot be looked at in isolation but must be balanced against the costs of litigation: even among those who possess some knowledge of the ECHR there are unrealistic expectations of how it can be used which can result in unmeritorious cases and arguments. This in turn has resource implications for the public funding of such cases and the costs of court time.

  16.  An early major investment in education for both public authorities and members of the public should have the effect of dealing successfully with potential breaches of the ECHR before costly and protracted litigation.

Advice and assistance

  17.  The experience of enforcing statutory rights against racial discrimination since 1965 could offer some lessons in respect of what is required to give full effect to rights under the Human Rights Act. In enacting the 1975 Sex Discrimination Act, the 1976 Race Relations Act and the 1999 Disability Commission Act, Parliament has recognised the importance of ensuring good access to advice and assistance. Under the Race Relations Act (section 66) the CRE has a duty to consider every application for advice and assistance, and a power to grant such advice and assistance in appropriate cases. It is our experience that providing advice and assistance to victims of racial discrimination has been a valuable tool in combating racial discrimination, promoting wider understanding of the legislation and securing changes in culture. Again, the CRE role is limited by the scope of the Race Relations Act.

  18.  As stated above, we have sought amendment of the Race Relations Act to enable the CRE to provide advice and assistance where complaints under the Human Rights Act involve allegations of racial discrimination. This would still leave without support the vast majority of claims under the Human Rights Act, which is why we strongly support the proposal that the power to give advice and assistance should be given to a Human Rights Commission.

  19.  Most critically, a Human Rights Commission should have the power to conduct strategic litigation to challenge, reform or clarify the law including:

    —  Test cases on behalf of individuals or a group of complainants.

    —  Litigation in its own name.

    —  Interventions/the submission of expert "amicus" opinions in proceedings brought by others.

Developing human rights expertise

  20.  Currently the expertise in human rights matters exists amongst a small number of academics, NGOs, and, after training, some members of the judiciary. There is also expertise amongst specialist agencies on limited aspects of human rights. We consider that a key function of a Human Rights Commission is the development of expertise in human rights, not limited to the developments of human rights in the UK but also in international and European human rights law and comparative law.

  This expertise will be necessary for effective strategic legal casework.

Bringing Legal Proceedings on Human Rights Issues in the Public Interest

  21.  As we have set out in (c) above, we consider that this is one of the crucial roles for a Human Rights Commission, which is not currently being carried out across the full range of human rights issues by any organisation.

  If a Human Rights Commission were established, how should its role and functions relate to those of this Committee?

  22.  We understand the role of the Joint Committee to be the review and reporting to Parliament of human rights matters. We submit that the purposes of a Human Rights Commission should be those listed above, which in our view, would assist the Joint Committee in carrying out its parliamentary functions.

  In what order of priority would you arrange the functions of such a Commission. If you think that a Commission should examine a range of issues, to which issue or issues do you think that the Commission should give priority?

  23.  There are two questions here: priority of functions and priority of issues.

Priority of Functions

  24.  In order to achieve the desired objectives, we consider that the primary functions of a Human Rights Commission should be:

    —  To promote public awareness of human rights through media and educational institutions and other appropriate means.

    —  To provide advice and training to public and private bodies to bring their practice and procedures within human rights standards.

    —  To advise Government and Parliament on the conformity with human rights standards of legislation and the current policies and practice of public authorities.

    —  To use litigation strategically (see above).

    —  To advise individuals and groups who believe their rights have been infringed.

    —  To conduct formal investigations into the conduct of bodies carrying out public functions where there it is believed they are contravening the ECHR.

    —  To become a centre of expertise on international and European human rights law and use this expertise to develop the human rights culture in England, Wales and Scotland.

  25.  For the short term the need to promote public awareness of human rights would appear to be a priority function but only because of the absence since incorporation of a single body to perform this task.

Priority of Issues

  26.  The CRE is not in a position to comment on which issues should be prioritised. We consider that this may be more appropriate for commissioners to decide if and when a Human Rights Commission is created.

  27.  We would however make the point that discrimination issues should be considered as an important issue at all times given that all Convention rights are to be enjoyed without discrimination on any grounds.

   If a Human Rights Commission were to be established, should there be a single body with a jurisdiction extending to all parts of the United Kingdom, or separate bodies with territorial responsibilities?

  28.  The arguments in favour of a single body for the United Kingdom are strong: consistency of approach and standards in relation to human rights both nationally and internationally; better communication and co-operation; avoidance of duplication and costs.

  29.  However, there are equally compelling reasons for there to be a separate Commission for Scotland, at least: it has its own legal system, legislation and court structures and a separate Commission would be consistent with the political decision to devolve greater powers to the Scottish Parliament.

  30.  We are minded therefore to recommend that there be a Human Rights Commission for England and Wales and a separate Commission for Scotland. We would recommend further that the statutory composition for a Human Rights Commission for England and Wales include at least one designated Commissioner for Wales or a Welsh Advisory Committee with a Welsh branch office. (There are Commissioners from Wales and Scotland representing the interests of those two regions at the CRE. A similar model exists on the Criminal Cases Review Commission which has a designated Commissioner for Northern Ireland).

  31.  When there are regional Commissions then it will be necessary to put in place formal procedures for co-ordination, sharing of expertise and consultation on UK and international matters. This could be achieved either through a statutory duty to consult, for example, or through conventions and protocols.

  If there were to be a Human Rights Commission with responsibilities for the whole United Kingdom (whether or not it operated alongside other bodies with responsibility for just one part of the United Kingdom), what relationship should there be between its work in respect of Northern Ireland and the work of the Northern Ireland Human Rights Commission (and similar Commissions in Scotland and Wales if they are established at some time in the future)?

  32.  See above. One approach could be that the UK body should be entrusted to secure consistent application and understanding of human rights principles across the United Kingdom, and would have a key advisory role to the Joint Committee and Parliament more generally.

  If a Human Rights Commission were established, how should its work relate to that of other bodies with special responsibility for particular rights, such as the Information Commissioner, the Equal Opportunities Commission, the Commission for Racial Equality, the Disability Rights Commission, and the Equality Commission for Northern Ireland? In particular:

  Should a Human Rights Commission perform functions now performed by existing specialist Commissions, or should it co-exist with them? If they were to co-exist, what roles should they perform in areas where their responsibilities might be expected to overlap?

  33.  As stated above, the CRE's work, by virtue of our statutory mandate, is the elimination of unlawful racial discrimination and the promotion of racial equality and good race relations. There is a different range of issues that may arise under the Human Rights Act. As the Human Rights Act includes a right against discrimination in the enjoyment of ECHR rights, we also recognise the possibility of some overlap.

  34.  The enactment of the Race Relations (Amendment) Act 2000 has increased the potential areas of overlap, since the Race Relations Act now outlaws discrimination across public functions and is not limited to economic and social rights to which the original 1976 Race Relations Act primarily applied. The amended Race Relations Act now applies to the law enforcement and regulatory functions of public authorities, such as the police, prisons, immigration control, which the Commission had seen as areas where the need for new protection under the Human Rights Act 1998 was the greatest. It is arguable that the protection from discrimination in these areas which the amended Race Relations Act now provides is greater than that under the Human Rights Act. There are gaps, however, since not all immigration and nationality functions are included within the Race relations Act and all judicial acts are specifically excluded.

  35.  Further, alongside the extension of the 1976 Act to all functions of public authorities (defined as in the Human Rights Act), the 2000 Act also imposes a positive racial equality duty on certain public authorities, which has clear parallels with the Human Rights Act duty on public authorities to act in ways that are compatible with the ECHR.

  36.  The European Convention on Human Rights on its own, provides limited protection from discrimination. Article 14 of the Convention provides that the enjoyment of Convention rights are to be secured without discrimination on any ground but does not guarantee a free standing right to freedom from discrimination. In addition, the Human Rights Act 1998 protects civil and political rights and is concerned solely with public functions: race relations legislation provides protection from discrimination in all areas including the socio-economic field (eg employment which is an important part of CRE's law enforcement and promotional work) and it outlaws discrimination by both the public and private sector.

  37.  Clearly, the Human Rights Act and the amended Race Relations Act complement and underpin each other and together have potential to transform the culture of public authorities.

Marginalisation of issues

  38.  Racial discrimination and social exclusion constitute a significant area of need in British society, and work on this must continue to be prioritised. One of the concerns for the Commission is the risk of marginalisation of race issues. On the other hand, there could be the opposite, equally undesirable outcome, namely that the now more familiar equality issues could dominate the work of a Human Rights Commission (as appears to be the case in some New Commonwealth countries). We question whether in a joint body it is possible to avoid hierarchy and competition, including competition for resources. At the present time, where human rights promotion and enforcement barely happens, we submit that a separate Human Rights Commission is required.

  39.  The CRE is, of course, aware of the proposals for a single equality act and an Equality Commission covering all areas of discrimination. In our view these are, and should be treated as, wholly separate issues which we expect will be debated over the next few years, with wide ranging consultation and lessons being drawn from the experience in Northern Ireland.

  40.  For all of the above reasons we consider that a Human Rights Commission should co-exist with the existing equality commissions. As stated above, we recognise that as there will be some overlap for the other equality bodies as well as the CRE, there would be considerable benefit in collaboration and joint working with a Human Rights Commission. This could be in relation to law enforcement, where one or other of the enabling statutes provided greater opportunity to challenge the acts of public authorities, or in promotional work, where different perspectives could contribute to the creation of a human rights culture and a culture based on equality and respect.

  41.  Clearly, we would wish to see cross-fertilisation in law, policy and promotional work, for example by way of interventions on each other's cases or joint work with public authorities on how to set standards and comply fully with their obligations.

  42.  One means of facilitating such collaboration and co-operation might be to secure representation from the equality commissions on the Human Rights Commission.

  If a Human Rights Commission were to co-exist with the existing equality commissions, should issues relating to equal opportunities be excluded from the remit of the Human Rights Commission and be given to the Equality Commissions?

  43.  No. The principle of non-discrimination in the enjoyment of Convention rights is an overarching and central theme to the Convention and it cannot be divorced from it. A key approach to examining alleged violations of Convention rights is to ask has there been an interference with the enjoyment of a Convention right and is that interference justifiable, proportionate or discriminatory. For this reason alone it makes no sense to remove equality issues from the remit of a Human Rights Commission.

  44.  There are also other compelling reasons why a Human Rights Commission should include equality within its remit.

  45.  Firstly, the prohibited grounds of discrimination contained in Article 14 of the Convention are non-exhaustive: it includes the most common grounds eg sex, race, colour and religion but the words "other status" can include disability, age, sexual orientation and even class or social disadvantage. In principle this makes article 14 sufficiently broad to respond to new and developing issues of inequality and includes grounds for which there is no other statutory protection in British law eg religion, sexual orientation and age.

  46.  Secondly, notwithstanding the extension of the prohibition of racial discrimination, there continues to remain a number of public functions which are outside the scope of the race relations legislation, namely, certain immigration and nationality functions (save for acts of discrimination on grounds of race or colour); judicial decisions; decisions not to prosecute; functions of the Security Services and the Houses of Parliament (see below).

  47.  Acts of discrimination in the exercise of these functions are immune from challenge: for example, it will not be possible to bring proceedings under race relations legislation where there is disparity in sentencing or where the CPS decides not to prosecute someone for a racist assault but to prosecute the victim for assault (while acting in self defence).

  48.  Where the exercise of these functions engage a Convention right, (eg right to liberty, fair trials, privacy) but are exercised in a discriminatory manner then they may be open to challenge under the Human Rights Act.

  49.  Thirdly, as the Joint Committee will know, an important provision in the Human Rights Act 1998 is section 19 which require Ministers to certify that future legislation is compatible with the Convention or to make a statement that he or she is unable so to certify but wishes nevertheless to proceed with the Bill.

  50.  Disappointingly, there is no analogous provision in the Race Relations Act 1976 as amended: not only are the Houses of Parliament and its proceedings outside the scope of the Race Relations Act 1976 as amended but section 41 of the 1976 Act exempts all acts done under statutory authority. In addition, the judgement in the case of R -v- Cleveland County Council & Others ex p. Commission for Racial Equality (1991) confirmed that where there is a conflict between the Race Relations Act 1976 and another statute of the 1976 Act will not take precedence.

  51.  The CRE can and will continue to scrutinise parliamentary Bills for their impact on racial equality but we do not have the statutory basis for holding Ministers accountable for introducing legislation which is incompatible with race relations legislation. Thus, in the area of pre-legislative scrutiny the role of the Human Rights Commission will be critical in ensuring firstly, that government does not introduce legislation which is incompatible with the Convention (including article 14) and secondly where such legislation is introduced that Ministers provide justification for their actions.

Joint and collaborative working

  52.  As we have recommended above, where there are issues that properly come within the scope of both the Human Rights Act and the Race Relations Act, then a joint and collaborative approach between the CRE and the Human Rights Commission would enable maximum benefit through shared experience and expertise and shared resources. We look forward to this approach both in relation to law enforcement and promotional and educational work.

  If a Human Rights Commission were to be established, how should its independence of Government be preserved while ensuring an appropriate type and level of accountability? How should its Chair, members and key staff be appointed?

Chair and Commissioners

  53.  The scope of the Human Rights Act, and in particular its application to Ministers of the Crown may make it more appropriate for the Chair and members of a Human Rights Commission to be appointed by the Joint Committee. In accordance with the Nolan principles, the Chair and Commission members should be appointed by open competition for fixed terms.

Key staff

  54.  Key staff should be recruited by Commissioners by open competition.

  How should its funding be provided?

  55.  We would recommend core funding from the Commission's sponsoring department—similar to CRE but the Human Rights Commission should be able to attract funding from other sources and should be able to receive an income from the provision of training and information.

  To whom should it be accountable (for example, to a Parliamentary body)?

  56.  The Human Rights Commission should be accountable to Parliament (through the Joint Committee on Human Rights). We would expect that a central government department, for example the Lord Chancellor's Department, would have some oversight. The National Audit Office would have an audit role as it does for other non-departmental public bodies.

  How should the matters mentioned in (a), (b) and (c) take account of devolution to Northern Ireland, Scotland and Wales?

  57.  The lines of accountability should reflect the structures in place as result of devolution under the Northern Ireland Act, the Scotland Act and the Wales Act.

  In light of your answers to Questions 1 to 7, what is your estimate of the level of staffing which would be required by the body or bodies you propose and what the annual cost might be?

  58.  We would recommend that consultants are engaged to analyse what would be required in terms of structures and funding. Any consultants and the Joint Committee will be able to refer to the budgets and staffing of the existing Commissions in the UK and elsewhere as possible models.

  Some Commissions currently operating in fields related to human rights have a range of powers. For example, they might be empowered to conduct investigations; to require people to provide information; to issue notices requiring people to cease conduct which the Commission considers to be unlawful; to conduct legal proceedings; to assist other parties to legal proceedings; to issue Codes of Practice; to conduct research; and to engage in a range of activities designed to heighten awareness of issues within their remits.

  If a Human Rights Commission were to be established, what powers should it have?

  59.  From our experience in seeking to be effective in both law enforcement and the promotion of racial equality we strongly recommend that the Human Rights Commission should have all of the above powers. We attach a copy of the CRE's Third Review of the Race Relations Act, since in this review we have proposed changes to certain of our powers, particularly in relation to formal investigations, and we would recommend that powers granted to the Human Rights Commission should be in line with those proposals.

  60.  In this context we recommend that where the exercise of any of the above powers overlaps with actual or potential work of another Commission there should be a joint approach with resources shared. Anticipating collaborative working, reinforces the need for the Human Rights Commission to have powers comparable to those of the other Commissions.

  Are there other relevant issues or considerations which have not been covered in answers to the earlier questions?

  61.  It will be essential for the effectiveness and credibility of a Human Rights Commission that it should be adequately resourced from the outset.

1 July 2001



 
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