8. Memorandum from Charter
88
INTRODUCTION
1. Since first being established in 1988,
Charter88 has campaigned for a Bill of Rights for the United Kingdom
as one of its key objectives. We welcomed the Labour manifesto
in 1997 which referred to its proposals to incorporate the European
Convention on Human Rights into UK law by statute as establishing
a "floor, not a ceiling" for human rights protection.
It added that Parliament would remain free to enhance these rights
by subsequent legislation such as a Freedom of Information Act.
2. As an overarching piece of legislation,
the Human Rights Act 1998, (HRA), has already raised expectations
about a new kind of relationship between government and the people.
However, the HRA does not simply provide the opportunity for human
rights standards to become an integral part of policy making and
law making; it provides an unprecedented opportunity for the development
of an inclusive human rights culture which recognises the increasing
diversity of British society. An independent Human Rights Commission
could play a key role in creating a pluralist and tolerant human
rights culture as well as a wider educational role in relation
to human rights generally. This would encompass all those other
functions identified within the terms of reference below.
3. Equally, the need for an independent
statutory body to promote good practice and advise and assist
individuals who believes their rights have been infringed has
become even more compelling since the Human Rights Act was brought
into effect in October of last year.
4. Baroness Amos (Labour Peer) stated in
1997 that:
"We currently lack any systematic monitoring,
enforcement or promotion of human rights in the UK. We have bodies
such as the EOC and CRE which have some responsibility for the
protection of certain human rights, but their coverage is partial.
We need a body that will raise public awareness, promote good
practice, scrutinise legislation, monitor policy developments
and their impact, provide independent advice to parliament and
advise those who feel that their rights have been infringed".
(Lords Committee Stage—Human Rights Bill—24 November
1997, col 846)
5. Some of these functions have been, or
are being, carried out by the Human Rights Task Force and the
Joint Committee on Human Rights respectively. However, it is our
belief that without a Human Rights Commission, the fostering of
a "grass roots" human rights culture throughout the
United Kingdom will not happen, or will be so slow in happening
as to be almost imperceptible.
The Questions:
Question 1
(a) fostering a human rights culture in
the United Kingdom;
6. The most important role for a Human Rights
Commission from Charter88's point of view, would be raising the
profile of human rights among the population as a whole, possible
by holding inquiries and hearings throughout the country. These
could be used to inform the standards by which our courts will
judge things such as proportionality, which often raise complex
social and moral issues. Meaningful consultation with the wider
public should enable a Human Rights Commission to predict more
easily when the HRA is likely to be pertinent to specific real
life issues.
7. The alternative is to rely too heavily
on representatives drawn from both the Executive and Parliament
trying to anticipate what might be a human rights issue when drafting
legislation or reporting to parliament as a whole. The low turnout
at local, European and more recently the General Election, has
visibly demonstrated the overall need to "reconnect"
people with political processes. Education on human rights can
not be left to existing political institutions. This need to create
a more people centred organisation must be reflected in the setting
up of the Human Rights Commission and the framing of its mission.
(b) education in human rights;
8. Baroness Williams, (Liberal Democrat
peer), acknowledged the importance of education in fostering a
human rights culture when she said:
"I can think of nothing more appropriate
at the beginning of a new government than to accept the need for
a culture of human rights among our children and university and
college students, because that is the bedrock upon which a culture
of human rights will be built in this country."
(Lords—Second Reading—Human Rights
Bill—3 Nov 1997, col 1301)
9. For those people who find legal jargon
and political rhetoric off-putting, Charter 88 has been devising
a programme of workshops on the HRA. These are individually tailored
to appeal to a wide variety of audiences and demystify issues
such as proportionality and the different jurisdictions of the
European Court of Justice and the European Court of Human Rights
were appropriate. Demand for these workshops has steadily increased
since the HRA came into effect accompanied by a substantial upturn
in the number of specific human rights enquiries directed at both
Charter88 and other NGOs such as Liberty and Justice. Limited
resources dictate the extent to which we, as NGOs, can respond
to such enquiries, increasing the frustrations of those who are
contacting us about these issues.
10. A Human Rights Commission could make
an unique contribution to advancing a human rights culture in
the United Kingdom by initiating or contributing to programmes
of education and training. Increasing public awareness of the
limitations of the HRA when dealing with human rights abuses in
the private sector, and providing information about the other
avenues of redress available to possible victims would also help
ward off such frustration. Otherwise there is a danger that the
media will become the key focus for providing such information;
information that above all else requires a level of objectivity
that is not conducive to selling newspapers or raising viewing
figures.
(c) advising and assisting people who
claim to be victims of violations of their Convention rights;
11. Those suffering abuse of convention
rights are likely to be drawn from the poorest and most vulnerable
sections of our community. Since expectations of protection under
the HRA have already started to rise, a Human Rights Commission
would provide a necessary focus for information gathering and
support. The Commission would have the added advantage of being
more accessible to the general public throughout the year than
the current Joint Committee which is constrained by the parliamentary
timetable.
(d) developing expertise in human rights;
12. Several bodies, including the Joint
Committee and various NGOs, will continue to monitor the impact
of the HRA and make proposals for amending it if necessary. However,
a Human Rights Commission could be uniquely placed to monitor
such developments on behalf of the wider public; possibly obliged
to report periodically to the Joint Committee. (see below)
(e) bringing legal proceedings on human
rights issues in the public interest?
13. "The overall goal of the Human
Rights Task Force was to ensure that this new Bill of Rights led
to a cultural shift way beyond the law courts."[26]
14. Charter88 agrees that those who believe
themselves to be victims of human rights abuses must be encouraged
to explore other means of obtaining redress rather than simply
believing that the courts and litigation are the principal means
of protecting such rights. Nevertheless, support to pursue legal
action should be given where necessary. When such litigation does
become necessary the UK needs an easily identifiable body, similar
to the Human Rights Commission set up in Northern Ireland, to
carry out the function of supporting or initiating legal action
on behalf of those alleging violations of their human rights.
15. Even though it is not necessary to make
political judgements about the merits or practicality of government
or public authority policy, such a body must be independent of
the government or public sector that by definition will be the
target of most HRA cases. As UK courts will not be constrained
by the "margin of appreciation" in the same way as the
European Court of Human Rights in Strasbourg, (trying to arrive
at decisions that take account of a membership composed of 41
different countries), they will need to be even better informed
about the appropriate balance of conflicting interests in the
UK. There will also be some areas where the courts will require
input from those with technical expertise or knowledge; eg about
special needs in education; or the allocation of resources generally.
A Human Rights Commission could usefully monitor and collate this
type of information.
Question 3
16. Charter88 believes that the order highlighted
by the Committee's own terms of reference, (a) to (e) above is
the correct one as a matter of priority. This is partly because
there are progressively more bodies already carrying out these
functions as you work through them from (a) to (e); and partly
because if you prioritise these functions in that same order there
should be less need for litigation re (e). Avoiding or reducing
litigation will also help keep overall costs down, thereby addressing
one of the government's prime concerns over the creation of a
Human Rights Commission.
Question 2
17. The preferred functions of a Human Rights
Commission, as outlined above, are quite distinct from those of
the Joint Committee, which is primarily charged with the responsibility
of scrutinising the conduct of government and legislative proposals
for conformity with fundamental rights and freedoms. A Commission
would have the added advantage of being able to continue functioning
independently of the parliamentary timetable, and should also
be perceived as being more independent and less politically motivated
than the Committee. As the Human Rights Task Force was being wound
up, Jack Straw referred to the Joint Committee as taking over
its role in the development of a culture of rights but has admitted
this would be only "partial".
18. Francesca Klug, (a member of the Human
Rights Task Force and author of "Values for a Godless Age.
The Story of the United Kingdom's Bill of Rights"), has expressed
concern that once the HRA starts to affect people's everyday lives,
". . . It is hard to envisage how, without
a permanent successor body to the Human Rights Task Force, the
momentum created by it will be sustained."[27]
Questions 4 to 6
19. The prevention of arbitrary discrimination
is an essential element of implementing human rights, but not
all human rights breaches are discriminatory. Although the CRE,
EOC, and more recently the DRA, all have narrow remits, dealing
with race, sex and disability discrimination respectively, they
do have the advantage of being easily identifiable with a specific
area of jurisdiction. This is an argument for retaining them,
at least in the initial stages.
20. There is no similarly identifiable body
in the United Kingdom with responsibilities in respect of the
various human rights arising under treaties to which the United
Kingdom is a party, or in respect of the whole range of civil
and political rights arising under the European Convention on
Human Rights and the United Kingdom's Human Rights Act 1998. Any
existing voluntary organisations with a focus on particular human
rights issues are often hampered in what they are able to achieve
by both limited resources and a lack of security of tenure; strong
arguments supporting the creation of a separate Human Rights Commission.
21. In spite of government concerns expressed
over the additional expense and how to reconcile the jurisdiction
of a newly created Human Rights Commission with those existing
Commissions, Charter 88 believes it is vital to have a Human Rights
Commission.
22. The work of the existing Equality Commissions
could ultimately be brought within the remit of the Human Rights
Commission but retained as a discrete area of jurisdiction. The
rationale underpinning this recommendation is the existence of
separate national legislation dealing with sex, race and disability
discrimination, combined with European Community law that provides
comprehensive, albeit limited protection from discrimination on
grounds of both sex (Article 141) and nationality (A12). This
has the potential to be extended in future to cover additional
types of discrimination by Directives which have been, and may
be enacted under A13. This protection under EC law covers areas
of employment law as well as economic and social rights that are
presently beyond the scope of the ECHR and consequently the HRA.
Similarly, any cases that involve a potential breach of A14 ECHR
in combination with other convention rights, or that may even
breach Protocol 12 ECHR, (even if this is not ratified or incorporated
into domestic law by the UK government), should also be considered
and developed by those with expertise in equal opportunities.
23. Charter88 believes that the case for
establishing a Human Rights Commission is so compelling, that
simply using the prohibitive cost of creating one as justification
for a refusal to do so is not tenable. In any event, such costs
could be compensated for in part by incorporating the existing
CRE, EOC and DRA within it. If, in addition, maximum effort is
made towards either prevention of human rights abuses in the first
place, or informal but effective resolution of any complaints
that may arise so that litigation is unnecessary, this should
also help offset any costs incurred in setting up a Human Rights
Commission. This could be partially achieved by promoting good
practice within public bodies and by promoting a culture of rights
and responsibilities throughout society.
24. Ultimately we could work towards a single
Human Rights Commission embracing the work of the CRE, EOC and
DRA that included representatives from Scotland, Wales and Northern
Ireland. The government has already stated that the Commission
for Northern Ireland must remain. On the basis of its different
legal system and emerging political identity, there are very strong
arguments for the creation of a similar and separate Human Rights
Commission for Scotland.
Question 7
25. Charter88 advocates the establishment
of a Public Appointments Commission to remove appointments to
public bodies from political interference. However, until such
a Commission exists, appointments should be made by both Houses
of Parliament on recommendation from the Joint Committee on Human
Rights.
26. We propose that the Human Rights Commission,
like the CRE, EOC and DRC and the new NIHRC, should be an NDPB,
a statutory body established by primary legislation setting out
its powers and functions. However, to demonstrate its independence
from Government, the Commission should not be sponsored by any
department, as, for example, the CRE is by the Home Office and
the EOC and DRC by DfEE.
27. The Commission should be accountable
to Parliament through the Joint Committee on Human Rights.
28. It is also important that the Commission
is seen to be accountable to the public in a wider sense. This
means that its working must be open and transparent, and there
must be genuine opportunity for people to participate in the working
of the Commission.
29. In its report, Mapping the Quango
State, the Public Administration Select Committee measured
the performance of quangos in the UK, against a set of 15 criteria
developed by them from Government's publicly declared aims, and
work done by the Democratic Audit at Essex University. The Human
Rights Commission should, as a minimum standard, meet all these
criteria. These are:
— Publish annual reports.
— Publish annual accounts.
— Be fully audited by NAO.
— Under jurisdiction of Parliamentary
Ombudsman.
— Have own complaints procedure.
— Observe Code of Practice on Open
Government.
— Possess a register of member's interests.
— Allow public inspection of register.
— Allow public attendance at board
meetings.
— Release public reports of meetings.
— Allow public inspection of agendas
of meetings.
— Allow public inspection of minutes
of meetings.
— Maintain an internet website.
— Subject to quinquennial review.
30. With the prominence of public education
within the remit of the Commission it will be crucial that public
access to meetings etc. of the Commission is facilitated. Only
in this way will the Commission have democratic legitimacy to
foster the culture of human rights through public debate that
will be one of its central functions.
31. In addition, the Commission should explore
innovative models of consultation with the public to give representation
of the views of the public in its deliberations and strategy.
32. Assuming that a Commission would not
be established until 2002-03 at the earliest, the Commission should
immediately be subject to the Freedom of Information Act, 2000.
If the Information Commission were to become part of the Human
Rights Commission, it would be important for the Publication schedule
drawn up by the Information Commissioner to be scrutinised by
the Appeals Tribunal and the Joint Committee on Human Rights and
Public Administration/Home Affairs Select Committees.
LAY COMMISSIONERS:
33. We suggest that the greater accountability
and expertise brought by lay members of commissions justifies
their continued place on the Human Rights Commission.
34. In addition, as emphasised elsewhere
in this submission, the over-arching nature of the Human Rights
Act means that there will be interests beyond those of the existing
commissions which it will be imperative to have represented on
the Commission, eg International obligations, children, issues
of age etc.
35. Advisory bodies for those areas within
the Human Rights Commission could then be established, or this
function could be better integrated with whatever innovative model
of public consultation is devised.
36. As Jim Wallace MSP, Scottish Deputy
First Minister and Minister of Justice, has said:
"Respect for our obligations in the area
of human rights is an integral part of the devolution settlement."
37. Differences between the component nations
of the UK in respect of bodies subject to the Human Rights Act
will only increase.
38. It will therefore be necessary to have
Human Rights Commissions for England, Scotland, and Wales, as
well as the Commission for Northern Ireland established under
the Good Friday Agreement. The Scottish Executive is already consulting
on a possible Scottish Human Rights Commission.
39. While the UK Commission will have responsibility
for wider issues of human rights, including the UK's other international
obligations, it will be important for the distinctive legal, social
and cultural contexts of the nations to be represented in these
aspects of the Commission's work as well.
40. Human Rights Commissioners for Scotland,
Wales and Northern Ireland would answer to the Scottish Parliament,
Welsh Assembly and Northern Ireland Assembly respectively as members
of the UK Human Rights Commission. The Commissioner for England
would answer to the Joint Committee on Human Rights for the UK
Commission in respect of its work in England.
41. There would be scope for the Human Rights
Commissioner for England to appear before elected regional assemblies
in England, where these are established, for those areas of policy
which are devolved to them.
27 June 2001
26 Francesca Klug "Values for a Godless Age.
The Story of the United Kingdom's New Bill of Rights" page
26. Back
27
Ibid, page 27. Back
| 
