Joint Committee On Human Rights Appendices to the Minutes of Evidence


10.  Memorandum from the Institute for Public Policy Research

SUMMARY

  IPPR is convinced that a Human Rights Commission is needed, not only to ensure access to justice for those whose rights are infringed but to promote a culture in which such infringements are far less likely to occur.

  There are significant gaps in the protection provided by existing agencies.

  There are a broad range of human rights problems in the UK, listed in an Appendix.

  The purpose of the Human Rights Act is not only to provide remedies in the courts but to promote a change in culture in public bodies, to avoid the need for litigation. That will not happen without a statutory body to be the engine for change. We have the Act—the Commission would be responsible for delivery.

  The Commission should be strategic, enabling, expert and authoritative, professional, accessible and accountable.

  Its functions should be to:

    —  provide information and guidance to public authorities, including private and voluntary bodies, on their responsibilities under the HRA;

    —  promote awareness of human rights and the responsibilities to others they entail;

    —  monitor the extent to which human rights are respected and advise government and parliament on the adequacy of existing law, policy and practice;

    —  refer individuals to appropriate external legal advisors; support individuals in court proceedings; bring proceedings itself; and intervene as an amicus curiae;

    —  conduct public inquiries; and

    —  assist the UN in scrutinising the UK's record on human rights.

  Priority issues should include violence and degrading treatment in institutional settings; violence within the family; discrimination on grounds not covered by the equality commissions; treatment of asylum seekers; and deaths in custody.

  A UK wide body, steered by the separate national commissions, is needed to provide some common services, with the authority to speak on human rights for the UK as a whole.

  The Commission would complement the work of the equality agencies, working closely with them where appropriate. The long-term debate about the future role and structure of those agencies should not delay the establishment of an independent Human Rights Commission.

  The Commission should have the power to act on its own initiative; have access to officials and information for its inquiries; and report to the Joint Committee.

  It should have a small number of full time executive commissioners. Non-executive commissioners should provide guidance and expertise, but not be involved in day-to-day decisions.

  Commissioners should meet regularly, in public, with a large advisory board with a broad membership, to maintain regular dialogue with those with direct experience of human rights issues on the ground.

Institute for Public Policy Research

  IPPR is a registered charity established in 1988 to contribute to public understanding of social, economic and political questions through research, discussion and publication. Under the auspices of its then Human Rights Programme it conducted research on the possible role and functions of a Human Rights Commission, published in 1998 as A Human Rights Commission; the Options for Britain and Northern Ireland (Spencer/Bynoe). It subsequently published a report on the implications of the Human Rights Act 1998 for Parliament and Whitehall, Mainstreaming Human Rights in Whitehall and Westminster (Bynoe/Spencer 1999), and a briefing A Human Rights Commission for Scotland (Spencer/Chauhan, 1999). Sarah Spencer engaged with the Crick advisory committee on citizenship education and published on the implications of the Human Rights Act for citizenship education. She also paid brief visits to the Human Rights Commissions in Australia, New Zealand, Canada and South Africa.

  The Nuffield Foundation funded IPPR to run a series of seven round table seminars to explore the implications of a Human Rights Commission for Northern Ireland (prior to the 1998 Act), in Scotland, and Wales; and the implications for ethnic minorities, women, people with disabilities, children and older people. Those seminars were instrumental in the growing recognition among those working on separate human rights issues of the added value that a Human Rights Commission could provide to the work of the existing statutory and voluntary agencies.

  In December 1999 the Home Secretary appointed Sarah Spencer as a member of the Human Rights Act Task Force and she contributed to its work until it met for the last time in April 2001. This evidence draws heavily on that experience, and on a survey IPPR conducted among public authorities to inform the work of the Task Force, in the months prior to the Act coming into force.

  IPPR's starting point is that the protection of human rights is vital not only to protect the most vulnerable from the abuse of power, but to the quality of life of every individual and to the cohesion of our communities. Human rights are not only a matter of law, essential though that protection is, but a code of ethics which requires us to treat each other with dignity and respect. The avoidance of degrading treatment, respect for privacy and family life, and tolerance of the views of those with whom we disagree, are obligations that impinge on the lives of us all, adult and child. Respect for the human rights of others is, in our view, the essence of social responsibility, of our mutual obligations, be it to those for whom we provide public services for or our neighbours and family.

  It is in that context that IPPR is convinced that a Human Rights Commission is needed, not only to ensure access to justice for those whose rights are infringed but to promote a culture in which such infringements are far less likely to occur. As Lord Woolf, then Master of the Rolls, wrote in the foreword to our report A Human Rights Commission.

    "For me, the most important benefit of a Commission is that it will assist in creating a culture in which human rights are routinely observed without the need for continuous intervention by the courts. Human rights will only be the reality when this is the situation."

  We also agree with the former Home Secretary, Jack Straw, when he argued that the need for a human rights culture goes beyond public bodies to the public at large:

    "Consider the nature of modern British society. It's a society enriched by different cultures and different faiths. It needs a formal shared understanding of what is fundamentally right and fundamentally wrong if it is to work together in unity and confidence. . . The Human Rights Act provides that formal shared understanding."

  We take each of the questions in the Call for Evidence in turn.

1.  What do you think a Human Rights Commission might add to the current methods of protecting human rights in the United Kingdom? Are there useful functions in connection with protecting human rights and developing a human rights culture which do not fall within the remit of any existing agency?

  There are significant gaps in the protection provided by the statutory agencies which already play some role in relation to particular human rights (albeit that they are rarely defined, nor see themselves, as having a human rights mandate). The remit of the Equal Opportunities Commission to protect women, for instance, excludes issues such as domestic violence, forced marriages or the treatment of women in the criminal justice system. The remit of the Commission for Racial Equality similarly excludes many human rights issues affecting black and minority ethnic people such as the right to family life, degrading treatment or religious discrimination.

  The enactment of the Human Rights Act 1998 was an acknowledgement that greater statutory protection was needed for human rights in the UK, beyond that provided by existing legislation. The Act provided access to a wide range of rights for which individuals had hitherto to seek a remedy in Strasbourg. The vast majority of those provisions, from the right to life through the right to a fair trial, right to family life and freedom of assembly, do not fall within the remit of any existing Commission.

  The UK is not only signatory to the ECHR but to a range of international human rights standards which offer valuable guidance, like the UN Convention on the Rights of the Child and the Convention on the Elimination of Racial Discrimination. Although these Conventions are binding, their provisions are not enforceable in the UK, relying on public awareness to ensure compliance. In reality, even within the relevant parts of the public and voluntary sectors, few are aware of these instruments and the commitment the UK has made to respect the standards they set.

  In the Appendix to this paper we have listed some of the wide range of human rights issues of concern in the UK. The list undermines any complacency that a Human Rights Commission would be under-employed. It relies almost entirely on official data, and relates to a very significant number of people throughout the country. For some, if they can get access to the courts, a remedy may be available under the Human Rights Act or other legislation. But many of the issues raised reflect systemic problems for which an individual remedy in the courts may not be the most effective means to achieve change.

  The purpose of the Act itself is not simply to ensure access to ECHR rights within our domestic courts but to promote respect for rights within public authorities, to avoid the need for litigation. But there is no statutory agency with responsibility to ensure that public authorities—including the private and voluntary organisations with public functions—carry out the necessary audit of their policies and practices to ensure that respect for human rights is built into their decision-making and treatment of the public.

  Significantly, in contrast to the Race Relations (Amendment) Act 2000, the Act itself does not require public authorities to take any specific steps (for instance to conduct an audit of its policies and procedures) nor has any audit or inspection body been mandated to ensure that such steps are taken. IPPR recently conducted a day's training session on the HRA and RR(A)A for public officials. The weakness of the HRA provisions was forcefully brought home to us by the fact that the officials focused all of their questions on the RR(A)A because they needed to know precisely what steps it required them to take. In this situation it is all the more important that a statutory human rights body has a mandate to drive change in the public sector, if we are not to rely on litigation alone to be the unpredictable motor for reform.

  During the passage of the Human Rights Bill through Parliament the then Home Office Minister Lord Williams of Mostyn QC said:

    "Every public authority will know that its behaviour, its structures, its conclusions and its executive actions will be subject to this [human rights] culture. It is exactly the same as what necessarily occurred following the introduction of, for example, race relations and equal opportunities legislation. . .

    Every significant body, public or private, thereafter had to ask itself with great seriousness and concern `Have we equipped ourselves to meet our legal obligations?' That has caused a. . . transformation in certain areas of human rights. The same is likely to follow when this Bill becomes law."

  We doubted then whether this transformation would happen if, in contrast to the race and sex equality legislation, there is no statutory body with the responsibility to bring it about; an engine for change. That view was confirmed by our experience on the Human Rights Task Force. In the absence of an HRC to provide guidance to public authorities on their responsibilities under the Act, it was left to Whitehall departments to contact the public bodies in their areas of work. It was evident from the written and oral reports that they gave to the Task Force, and from subsequent meetings between sub-groups of Task Force members and the staff responsible, that their focus was on preparing their own department, with few resources allocated to raising awareness among public authorities. Departments have neither the means nor internal mandate to reach out to public bodies and provide the guidance they need, nor to monitor any resulting change in policies or practices.

  In a survey of public authorities completed in June 2000, IPPR found one third of authorities either had no information on the Act or had wrongly concluded that it did not apply to them. Only one in six had begun to take the steps that would ensure they were adequately prepared for the Act coming into force. While those who had seen the general guidance material provided by the Home Office were complimentary, many were critical that they had received no information, or guidance on the particular implications for their area of work. IPPR recommended that substantially greater effort should be made to ensure that public bodies had guidance on complying with the Act and on implementing good practice measures, and that compliance should be monitored.

  At the July meeting of the Task Force, the non-governmental members argued, in a written paper, that the demand on NGOs for training, consultancy and detailed advice "far exceeds the capacity to provide it". Many smaller organisations were not in a position to pay for the training they needed and "we all receive a constant stream of requests for information and advice with no official body to whom callers can readily be referred". It noted that the need to inform public authorities, and to raise public awareness, would be even more important after the Act came into force, and set out reasons why government was not the most appropriate source of that advice. It concluded that an independent, statutory Human Rights Commission is needed to provide guidance to public authorities, to be a source of authoritative information on the law, to promote awareness of the importance of human rights principles and the responsibilities they entail, particularly among young people ("a task which the Task Force has scarcely been able to address") and to monitor compliance:

    "The Human Rights Act needs support. In order to develop a culture of human rights, the government needs to create an institution whose job it is to promote such a culture. The danger is that without a Commission, developing a culture will be left to lawyers and the courts—not an optimistic picture."iii

  IPPR endorses this view. Before listing the functions we think a Human Rights Commission should have, it is important to say what kind of body we think is needed. To be effective in fulfilling the functions we outline, we envisage a body that is:

    —  strategic—targeting its resources on issues and approaches that will deliver results;

    —  enabling—a catalyst, mobilising the resources and drawing on the expertise of others;

    —  expert and authoritative in content and tone;

    —  professional in approach;

    —  accessible—to those who need help or information; and

    —  accountable.

  We suggest that the functions of a Human Rights Commission should be:

  (i).  To provide information and guidance to public authorities—including the private and voluntary bodies fulfilling public functions—on compliance with human rights standards and implementing good practice.

  The Commission should be proactive, working with the relevant national bodies to ensure that all public bodies have available to them information and guidance on the implications of human rights standards, particularly the Human Rights Act, for their area of work—whether it be the provision of health or residential care, looking after young offenders, policing or any other public service. The aim is to create a human rights sensitive environment, a human rights culture, in which staff ask themselves as a matter of routine whether their decisions or actions may infringe a right, whether they could avoid doing so, or whether their actions are proportional. A culture in which avoiding degrading treatment, respecting privacy and providing a fair hearing, are the norm not the exception. This approach is not one of risk management, focusing narrowly on compliance with the law, but one of mainstreaming human rights principles as a matter of good practice.

  (ii)  To promote awareness and understanding of human rights and the responsibilities towards others that they entail.

  The greatest challenge for the Commission is to promote a human rights culture among the public. It should do this by being an authoritative voice in public debate on the human rights implications of national and local issues; by working with the curricula authorities to ensure that human rights are appropriately covered in the citizenship curriculum in schools; through advertising (where it can obtain coverage at no cost through donations in kind); through its website and the provision of materials.

  (iii)  To monitor the extent to which human rights standards are respected in the UK and to advise Parliament and the Government of the adequacy and effectiveness of law and practice relating to the protection of human rights.

  The Commission should be an authoritative source of information for the Committee and Government (Scottish Parliament and National Assembly) on the extent to which human rights are respected in different settings throughout the country. Through its networks in the public, private and voluntary sectors, and academia, through monitoring requests for assistance and subsequent casework, through research and public inquiries, the Commission should be the most informed and impartial source of knowledge on human rights practice and should advise on any changes in legislation or policy that may be needed.

  (iv)  To assist individuals whose human rights have been infringed to receive legal advice by referring them to appropriate external legal advisors; to promote knowledge and expertise in the advice sector; to support individuals in court proceedings; to bring proceedings itself and to intervene as an amicus curiae.

  We do not envisage the Human Rights Commission having the resources to provide legal advice to all those who may feel their rights have been infringed, cases that will cover the full range of public and private law. Indeed, we feel it more appropriate that the Commission should see its role as promoting expertise throughout the advice sector, and to refer individuals to those most equipped to provide the advice they need. Where it judges it to be in the public interest, the Commission should have the means to support an individual in taking proceedings, as the CRE and EOC may do, and to be able to initiate proceedings in its own name. The statute must provide a specific power to intervene as an amicus curiae as the Northern Ireland Human Rights Commission, despite assurances during the passage of the Northern Ireland Act 1998 that it would be able to fulfil this role, has been prevented by the courts from so doing because that power is not written into the statute.

  (v)  To conduct public inquiries where there is evidence of systemic abuse or a serious incident that merits an inquiry on human rights grounds.

  The Australian Human Rights and Equal Opportunities Commission has found that initiating a public inquiry, with public hearings held around the country, has been its most effective means both to collect evidence on an issue but also to raise the awareness of the public and elected representatives of the need for reform. The Northern Ireland HRC has found its ability to conduct inquiries has been hampered by its lack of a complementary power to have access to documentation and to question individuals within an organisation, a power which is required by the UN's Paris Principles for national human rights institutions.iv

  (vi)  To contribute to the scrutiny of the UK's compliance with United Nations and other international human rights instruments.

  The Commission should assist the UN and Council of Europe supervisory bodies in their scrutiny of the UK's record in relation to international human rights standards. The Commission would not represent the UK but be present as an independent expert body, a role envisaged by the UN's Paris Principles and already familiar to such bodies as the Data Protection Commissioner at a European level. The Commission would help to ensure that the public, and public authorities, are better informed about the UK's position in relation to international standards, and could assist the Parliamentary Committee in its scrutiny of the UK's record.

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

  We attach considerable importance to the role of the Committee in Parliament. The Commission will have some functions which are distinct from those of the Committee (eg advice to individuals and guidance to public bodies) and some which are complementary (monitoring and inquiry). The Commission will want to use its resources strategically and might therefore be expected, for instance, to play only a minor role in scrutinising proposed legislation if the Committee gives a significant focus to that area of its work. The Commission should report annually to the Committee (or to the Scottish Parliament or National Assembly, as appropriate) on the exercise of its functions, and be a source of information and expertise for the Committee when it conducts its own Inquiries. In practice, we would envisage regular informal communication between the chair of the Committee and chair of the Commission to ensure a constructive, complementary working relationship.

  3.  In what order of priority would you arrange the functions of such a Commission?

  All of the consultation that we have done on this issue leads us to argue that the promotion of a human rights culture within public bodies and the wider public should be the Commission's first priority; but that its role in securing access to justice, and its legal powers, will be absolutely vital to its authority and influence.

To which issues do you think the Commission should give priority?

  The Commission must judge the issues to which it gives priority according to the extent to which the human rights of individuals are being infringed, and the number of people affected, when it is established. However, many issues are enduring:

    —  violence and degrading treatment within institution settings—not least in young offender institutions and in residential care for vulnerable people—children, the elderly, people with disabilities and those with mental health problems.

    —  abuse within the family, given the known scale of violence against women and older people, and of child abuse.

    —  discrimination on grounds of sexual orientation, religion and age, unless or until such time as those issues are within the remit of an equality commission.

    —  the treatment of asylum seekers.

    —  deaths in custody.

  4.  Should there be a single body with jurisdiction extending to all parts of the UK or separate bodies for England, Scotland, Wales and Northern Ireland, or both a UK body and bodies with territorial responsibilities?

  There is already a HRC in Northern Ireland and it seems likely that such a body will be established in Scotland. Provision will therefore be needed for England and Wales. The status and degree of independence of the Welsh body needs to reflect the strong sense in Wales that it has its own distinct problems, despite sharing a legal system with England, and the importance of people in Wales feeling a sense of ownership of the body and the human rights awareness it promotes.

  It will be unsatisfactory to have three or four Commissions that are entirely independent of each other, with no voice with the authority to speak on human rights for the UK as a whole. A UK wide umbrella body of some kind is needed, whether light touch co-ordination or, as we would advocate, providing some common services. The chair of the UK Commission could rotate among the chief commissioners of the national commissions, but the demands on the UK body could make that infeasible in practice, given the travel involved.

  5.  If there were to be an HRA with responsibilities for the whole UK, what relationship should there be between its work in respect of Northern Ireland and the work of the Northern Ireland HRC, and similar Commissions in Scotland and Wales, if established?

  Each Commission should have the authority to determine its priorities for its own area. The UK wide body should be steered by those bodies and undertake work on issues relevant to the whole of the UK, thus ensuring an appropriate balance between uniformity of approach across the UK and locally diverse priorities.

  6.  How should the work of an HRC relate to that of other bodies with special responsibility for particular rights?

  The HRC would complement the work of those bodies, in building a human rights culture from which they would benefit and in fulfilling particular functions, such as advising a disabled person on a human rights issue that fell outside the discrimination remit of the DRC. The equality commissions increasingly work together, for instance in providing joint guidance material, and the HRC should equally work closely with them where appropriate. It should consult them where its broad responsibility, eg for promoting human rights awareness, touches on equality issues.

  There is a long-term debate whether the equality commissions should one day be brought together within a single Equality Commission, as in Northern Ireland. The possibility that a HRC could be part of such a structure, potentially along with other bodies such as the Information Commissioner has been raised by IPPR and others. We are firmly of the view that that possible long-term agenda should not interfere with the urgent need to establish a Human Rights Commission now, to fulfil the functions we have outlined. The HRC should then contribute to that long-term debate on the optimal relationship between the bodies when it is clearer what role the Government envisages they should play. There are major issues to be resolved, not least whether the equality commissions will be enforcing a duty on public authorities to promote equality on grounds of gender and disability, as the CRE now does on race; what kind of enforcement body will be needed for the new legislation on discrimination on grounds of age, sexual orientation and religion, not due on the statute book until 2003-06; and the long-term implications of devolution for the structure of the EOC, CRE and DRC. Those issues require extensive consultation and debate, cannot be resolved immediately and are beyond the terms of reference of Committee's current inquiry. They should not impede its progress.

  7.  How should the independence of the HRC from Government be preserved, while ensuring an appropriate level of accountability?

  The UN guidance on national institutions states that "Independent legal status should be of a level sufficient to permit an institution to perform its functions without interference or obstruction from any branch of government or any public or private entity".

  The Commission must have the right to act on its own initiative, without direction from Government, although a Minister might invite the Commission to advise on a particular issue. It should report to Parliament, in effect the Committee, and be accountable to its parent government department only for probity in relation to its financial affairs. It should appoint its own staff (although some secondment from other public bodies may be a valuable way to attract particular expertise).

  The chair and members of the Commission should be appointed under Nolan procedures. It would be desirable for the Committee to be consulted. The main criteria for appointment should be expertise. The statutory advisory board (see below) and staff appointments can all assist in complying with the condition in the Paris Principles that the Commission reflect the diversity within the population. We advocate a small number of full time executive commissioners, with non-executive commissioners who would give guidance on strategic direction but not be involved in day-to-day matters.

  A positive working relationship with key government departments will be essential, and the Commissioners and staff will need to find the right balance between independence and influence in managing that relationship on a day to day basis. The approach, authority and tone the Commission adopts will be vital to the success of that relationship.

  8.  What is your estimate of the level of staffing that would be required by the body or bodies you propose and what annual cost would that entail?

  At the time of our original research for a Human Rights Commission we asked a recently retired senior official at the Home Office to calculate the potential cost of the Commission in its first year (1999-2000), based on an estimate of its activity in relation to legal advice, scrutiny of legislation, public inquiries, research and promotion. His answer was a modest £2.8 million, in part because of the fact that, in its first year, the Commission would be developing parts of its strategy (test cases, public inquiries) rather than implementing it. However, we also underestimated at that stage the importance of its role in providing guidance to public authorities and, with hindsight, the number of experienced staff needed for the Commission to have expertise on a sufficiently broad range of issues. We are not in a position to re-do the calculation. Were we to do so we would estimate on the basis of a more streamlined body than, say, the Commission for Racial Equality, with an emphasis on paying for expertise on legal, policy and external affairs; on resources to take test cases and conduct inquiries; and for targeted promotion. We note that the budget of the Northern Ireland Human Rights Commission is grossly inadequate for it to fulfil the expectations of that body.

  The Commissions must be permitted to raise funds, from the provision of training, conferences and publications, and from charitable and private sources (eg free advertising space) if there is no potential conflict of interest. It should have an incentive to raise its income in order to be able to expand its activities. Officials at the Northern Ireland Office said prior to the Northern Ireland HRC being established that it would be able to do this but we understand it has in practice been prevented from doing so by government financial regulations. There are examples of Human Rights Commissions abroad charging some organisations for provision of training and the Commission should, where it considers it appropriate, be allowed to do this so that it does not subsidise organisations that would otherwise pay for training by consultants.

  9.  What powers should an HRC have?

  The Commission needs the power to:

    —  exercise its functions in relation to human rights, not narrowly in relation only to the Human Rights Act;

    —  to undertake research or inquiries on its own initiative, and to publish their findings and recommendations;

    —  to have access to documents, premises and people. As the Paris Principles puts it to "hear any person and obtain any information and any documents necessary for assessing situations falling within its competence"; and

    —  to support or initiate legal proceedings if it considers it in the public interest to do so.

  10.  Are there other relevant issues or considerations?

  The questions have not raised the issue of the Commission's relationship with stakeholders—all the public, private and voluntary bodies that will have an interest in its work, and members of the public. It is important that the Commission is not only called to account by Parliament but listens to those with direct experience on the ground. Commissions can all too easily become inward looking and we need the HRC not only to listen but also to mobilise others to help deliver its agenda. In A Human Rights Commission we recommended a statutory advisory board with a broad membership, meeting in different parts of the country, with whom commissioners would meet regularly. Non-members should be able to attend as observers, to increase transparency.

  We should not forget the importance that the United Nations places on each member state having a national human rights institution, and the extent to which the voice of the UK in promoting human rights abroad would have greater authority were it seen to have established an effective Commission(s) in the UK.

REFERENCE

  i.  "Building a human rights culture". Address to Civil Service College seminar, 9 December 1999.

  ii.  Second Reading Human Rights Bill, House of Lords, 3 November 1997 col 1308.

  iii.  "The role of the Task Force and the need for a Human Rights Commission. Paper by NGO Task Force members. HRTF (00) 12.

  iv.  General Assembly Resolution 48/134, December 1993.

  v.  National Human Rights Institution. A Handbook. 1995 (para 70).

July 2001



 
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