Joint Committee On Human Rights Appendices to the Minutes of Evidence


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.

    —  Hold public 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


 
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