Joint Committee On Human Rights Appendices to the Minutes of Evidence


11.  Memorandum from The British Institute of Human Rights

  Please find enclosed a copy of the British Institute of Human Right's submission to the Joint Committee on Human Rights, in response to your call for evidence on a Human Rights Commission for the UK.

  BIHR's work is dedicated to the promotion and protection of human rights, and, in particular, to making human rights accessible to all: it is in this context that the establishment of a UK Human Rights Commission could play a valuable role.

  Since the introduction of the Human Rights Act, there has been an upsurge of interest in human rights. While a tremendous amount of time and effort has been invested in professional training for judges, lawyers and public service providers, BIHR is concerned that those who are often on the front-line of providing advice and/or public services should also have access to current, relevant information about the impact of the Act on their work. And in particular, BIHR is keen to ensure that those who have the most to gain from the Act (as well as the most to be disappointed by) have a sufficient awareness and understanding of their human rights to be able to access the advice and assistance they might need. This requires, as the government has acknowledged, the development of a "human rights culture". And this will not happen—or will happen much more slowly—without someone —or body—actively promoting and encouraging it.

  Expectations have been raised as a result of the Act. Without one place to which to turn for help and advice, without the possibility of—easily accessible—effective remedies and methods of resolving disputes, the Act will not reach its full potential. A Human Rights Commission could fulfil this function.

  Our submission, however, focuses on one element only of the possible functions that a Commission might have—mediation. This is, in part, a recognition of some of the excellent work already done in support of a Commission, by organisations such as the Institute for Public Policy Research and others. We have restricted ourselves to looking at mediation precisely because this is one area which has received less attention.

28 June 2001

PROPOSAL TO INCLUDE MEDIATION IN THE POWERS OF A HUMAN RIGHTS COMMISSION

SUMMARY

  1.  The object of the British Institute of Human Rights is to protect and promote human rights. We are concerned both that the rights of individuals are protected and that public authorities promote human rights and observe their standards. The establishment of a human rights commission could have a significant impact in reaching these goals.

  2.  We do not believe, however, that a human rights culture will be achieved through litigation or that all complaints about breaches of Convention rights need to be decided in court. The use of mediation, as an alternative to litigation in suitable cases, has the potential to play a significant role in the protection and promotion of human rights.

  3.  Because this issue has attracted little attention, we have decided to concentrate our submission on it. We propose that one of the powers of any human rights commission could be to assist individuals in resolving their complaints through mediation where appropriate. We suggest that a commission draw on the experiences of the Disability Rights Commission and overseas human rights commissions in providing mediation services.

ADVISING AND ASSISTING PEOPLE

  4.  As the JCHR anticipates in its Call for Evidence (Question 1, function (c)), the public will expect that a human rights commission will advise and assist on human rights issues. It is likely that there will be many enquiries about personal circumstances in which a breach of Convention rights may have occurred. If it appears that the enquiry raises matters of public interest, the commission may wish to litigate on a test case basis. Although important, these cases will be relatively rare and should be dealt with as a separate function, as anticipated by the Call for Evidence (Question 1, function (e)).

  5.  The majority of complaints, however, are unlikely to have a public interest element and it would be preferable for the commission to be pro-active in its response and do more than refer callers back to their local citizens advice bureaux or to legal advisers. We believe that for a commission to have the power to offer mediation services following the lodging of a complaint would be to provide real assistance to people.

MEDIATION DESCRIBED

  6.  Mediation is an increasingly popular method of alternative dispute resolution (ADR). It is a voluntary, informal and confidential process in which the parties seek to resolve their dispute with the help of an independent third party. It enables the parties to present their views, and allows issues to be aired and solutions considered in a way not possible in court. The procedure works best where there is an ongoing relationship to preserve and room for manoeuvre in the dispute. Where mediation is successful, costs are lower and less time is spent on the dispute. The agreement reached usually lasts because it is the work of the parties.

  7.  There are many mediation schemes in existence and they do not all follow the same format. Sometimes they are called "conciliation" services. Typically the mediator acts as facilitator but not as adviser though in some models the parties may be given advice on their legal rights. This is the case with the long-standing Advisory, Arbitration and Conciliation Service (ACAS) in employment disputes.

MEDIATING RIGHTS CLAIMS IN THE UK: SOME EXAMPLES

Disability Conciliation Service

  8.  In March 2001, the Disability Rights Commission established a conciliation service managed by Mediation UK. The services are advertised as follows:

    "The process of conciliation is a means by which a third party—a conciliator—may help settle a dispute without having to go to court.

    The DRC's Conciliation Service is free and voluntary for both parties to the dispute—the disabled person and the service provider. It will enable a person with a complaint to discuss their case in confidence with an independent conciliator. If the other party to the dispute, the service provider, is willing to participate in the conciliation process, the conciliator will assist the parties to work towards a resolution of their dispute.

    If a resolution is not achieved, or if the service provider is unwilling to participate in the conciliation process, the case can still be taken to a County Court or Sheriff Court in Scotland. An additional two months are allowed to the statutory time limit for bringing a case for anyone referred to the DRC's Conciliation Service who then takes their case to court."

  9.  The DRC will advise people on their legal rights but the DCS conciliators do not do this though they have an awareness of disability rights. Reports from the scheme are that: "our experience so far is that the conciliation process is a truly educative process for many of our respondent service providers' and the DRC has commented that: "a conciliated settlement offers more prospect of effecting real change in practices and policies." These are important and wide-ranging consequences.

  10.  The DCE has not yet made its case statistics available but its predecessor service demonstrated that conciliation was a useful and successful alternative to going to court. Of 121 referrals made by the DRC to that service between April 2000 and March 2001, 54 per cent of complaints are believed to have been settled. With regard to costs, the DRC expects to spend about £350,000 in the first year of the new DCS (including substantial set-up costs). Individual conciliations cost £200 if conducted on the telephone and £250 if they involve meetings.

Commission for Racial Equality

  11.  By contrast, the CRE in its early life as the Race Relations Board had an unhappy experience of conciliation which was provided for under the 1965 and 1968 Race Relations Acts. Conciliation was found to be and still is clearly not appropriate in cases of serious or widespread racial discrimination and under its present statutory arrangements the CRE advises potential claimants that remedies lie in the courts. It recognises the shortcomings of this, however, by cautioning claimants that it is not easy to bring racial discrimination cases and that pursuing them `can be very stressful and time-consuming'. The current situation is unsatisfactory and would benefit from review.

Local Authority and Independent Schemes

  12.  Many local authorities support mediation services in a variety of situations where rights in their widest sense are at issue. These include schemes for employees and community provision for neighbourhood disputes. There are other examples of ad hoc mediation schemes such as family group conferencing run by the Family Rights Group for social services departments and the pilot conciliation scheme in special education needs disputes provided to the Department for Education by the Shaftsbury Society.

Proposals for a HRC for Scotland

  13.  The Scottish Human Rights Centre has recommended that a human rights commission in Scotland have the power to conduct alternative methods of dispute resolution because: `many issues involving human rights are by their nature, not justiciable in the courts' and because such a power: `would provide a less expensive and quicker resolution to a number of problems'.

The Government's View

  14.  In recent years the Government has promoted the use of ADR in a range of civil disputes and the number of pre-action protocols incorporating mediation into the litigation process reflects this. Recently the Government has pledged to settle its own legal disputes out of court. In announcing this initiative in March 2001, the Lord Chancellor stated: `Very often, there will be alternative ways of settling the issues at stake which are simpler, cheaper, quicker and less stressful to all concerned than an adversarial court case.'

  15.  The Lord Chancellor, however, has stated that ADR is not suitable for `human rights' cases and the expectation is that all claims under the HRA will be adjudicated in court. Notwithstanding this, the Lord Chancellor's Department in its Discussion Paper on ADR (November 1999) used human rights language to promote ADR: `The Government's aim is to improve people's understanding of their rights and responsibilities and how to resolve disputes which affect them in a way that is proportionate to what is at stake. The use of ADR techniques will have a part to play in the proportionate resolution of disputes.'

  16.  It is clear that the question of the suitability of mediation in human rights cases deserves more consideration and our contention is that its appropriateness depends on the type of dispute, the individual circumstances and the needs of the parties.

COMPLAINTS UNDER THE HRA WHERE MEDIATION COULD BE SUITABLE

  17.  Not all complaints about the acts or omissions of public authorities under the Human Rights Act involve public interest issues, require a legal precedent or concern the establishment of a fundamental right. The Act has raised expectations for the public that are unlikely to be met in the courtroom. For example, a court could decide whether a pupil permanently excluded from school has been denied the right to education. But it cannot negotiate the arrangements that will resolve the dispute.

  18.  Nor can the courts deal effectively with allegations of ill treatment in residential homes. In extreme cases, the courts could decide that such treatment was degrading and in breach of Article 3 of the ECHR and impose the appropriate penalties and remedies, but the courts could not engage with the relevant authority on how such treatment would be avoided in the future. In less extreme cases, where the treatment is clearly degrading by public standards but falls short of the high threshold the courts will use, mediation could play a vital role in negotiating good practice, where the courts would fail to deliver any change.

  19.  In many cases, such as complaints about the breach of the right to family life, the determination of a claim under the Act involves consideration of whether a Convention right exists and whether the infringement of that right is proportionate to the public authority's legitimate aims. It is within this balancing exercise that mediation has the potential for manoeuvre.

MEDIATION SCHEMES: HUMAN RIGHTS COMMISSIONS ABROAD

  20.  Human rights commissions in countries like Australia, Canada and New Zealand have long-established mediation or conciliation schemes for complaints lodged under applicable human rights and equalities legislation.

  These provide useful information on the suitability of mediation in human rights complaints.

  21.  Taking Canada as an example, in its annual report for 2000, under the heading "Success with a New Approach" the Canadian Human Rights Commission reported "promising results" with a two-year pilot offering mediation before any investigation of the complaint. This new scheme is distinct from an existing conciliation service which follows an investigation by the Commission. Over half of the complaints were settled by mediation and the Commission has decided to make the procedure permanent. The Commission dismissed concerns that mediation might fail to address systemic discrimination by reporting that in fact: "mediated settlements have included commitments by employers and service providers to develop new policies and amend procedures."

UK HRC: A MEDIATION MODEL

  22.  In our view mediation services could be one of a range of facilities that a human rights commission might offer to the public. They would not be suitable for all complaints but could offer real remedies in other cases. There are, however, questions to address in terms of how legal advice fits with the mediation process and the best way to ensure that the parties make informed choices about the dispute resolution route they pursue.

  23.  Subject to fuller reports on its progress, the DCS is an obvious starting place as a model. Both its voluntary nature and the two-month extension of time to make a complaint are important principles to preserve to avoid possible contravention of procedural rights guaranteed by Article 6 ECHR. The fact that the scheme is independent avoids any potential conflict within the commission between functions (c) (advice, assistance and mediation) and (e) (taking legal proceedings). The commissions in other countries, however, operate schemes internally and so this question should be explored further. Certainly, if the services are independent they will need substantial support from the commission.

  24.  We believe that any mediation scheme must have as its primary objective the protection and promotion of human rights. The procedure should constitute "rights-based" mediation where: "the mediator takes a more proactive role in ensuring that any mediated agreement reflects statutory rights and legal entitlements" (Advice Services Alliance, Advising on ADR, p14). Mediators will need to receive training on the Human Rights Act and European Convention on Human Rights. In addition, they will have to demonstrate sufficient skills to rectify the imbalance of power that is likely to be present in complaints brought by individuals against public authorities. Whether mediators should have the power to give the parties legal advice should be considered.

  25.  Without compromising confidentiality, data could be collected on breaches of the ECHR and how they have been dealt with so that the HRC could formulate policy on public education and accountability of public authorities. The Australian Human Rights and Equal Opportunity Commission publishes a register of conciliation complaints. It is therefore public knowledge what types of human rights violations occur and how they can be settled.

PROTECTING THE HUMAN RIGHTS OF INDIVIDUALS

  26.  A mediation service provided by a human rights commission is an opportunity to further the protection of human rights and to gain public support. For individuals to participate in making decisions about their own rights is genuinely to "bring rights home". The informality and privacy of the process combined with the greater options for resolution of the complaint could be empowering for complainants, allowing them to shake off their "victim" status.

PROMOTING A HUMAN RIGHTS CULTURE WITHIN PUBLIC AUTHORITIES

  27.  Encouraging public authorities to reach a consensus on issues of human rights is also likely to be a positive development. Several have recognised the value of alternative dispute resolution in the context of Convention rights. For example, the principal solicitor at a unitary council in the North West recently commented: "I consider that local authorities would welcome ADR as a way of complying with the principle of proportionality. It is far more likely that each side will believe that their concerns have been properly addressed if they themselves have been an active party to arriving at a solution."

  28.  This enlightened approach could encourage the culture change within public authorities that lies at the heart of the Human Rights Act. In addition, as the experience described above shows, the settlement of one complaint can lead to implementation of policies for the benefit of many.

CONCLUSION AND RECOMMENDATIONS

  29.  The BIHR invites the Committee to consider establishing a human rights commission with inter alia a power to offer mediation services in suitable cases or at minimum to consider whether such services are appropriate. We believe that mediation could offer real access to justice to those individuals and families whom the Human Rights Act was designed to protect.

2 July 2001



 
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