14. Joint Memorandum from the
Bar Council and the Law Society
The Law Society is the governing body that represents
and regulates 80,000 solicitors in England and Wales. It carries
out a broad spectrum of activities ranging from law reform and
practice advice to professional education and dealing with complaints
about solicitors. This submission has been approved by its Executive
The Bar Council is the governing body that represents
and regulates barristers in private and employed practice. Like
the Law Society it carries out a broad range of activities in
relation to professional education, standard setting, dealing
with complaints and promoting the role of the independent Bar.
This submission has been approved by its Law Reform Committee.
Both the Law Society and the Bar Council participated
fully in the work of the Home Office Human Rights Task Force (the
Task Force), which was disbanded earlier this year. Both worked
with other Governmental and non-Governmental bodies represented
on the Task Force with aim of ensuring an effective introduction
to the Human Rights Act 1998.
The Bar Council and the Law Society welcome
the opportunity to provide written evidence to the Joint Committee
on Human Rights.
In paragraph 3 of its Report on the United Kingdom
dated 27 July 2000, the United Nations Human Rights Commission
paid tribute to the contribution made to the protection of human
rights in the UK by various NGOs. The importance of that contribution
continues to be felt. Both the Bar Council and the Law Society
believe that they play their part in that protection. Yet it is
inevitable that each NGO will focus on only a limited area of
human rightssometimes on a single issue. However well informed
or active NGOs may be, the Law Society and the Bar Council believe
that they cannot act as an effective substitute for a Human Rights
Neither is the all-party Parliamentary Committee
of Human Rights on adequate substitute. It is unlikely to have
the time to conduct a thorough review of the laws and practices
of the UK; nor is it likely to be adequately resourced to research
and comment upon the human rights implications of legislation
as it is applied across the UK. Accordingly we support the introduction
of a Human Rights Commission.
Our detailed evidence in support of this approach
is presented by way of answers to the questions set out by the
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 protection 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:
(a) fostering a human rights culture in
the United Kingdom;
(b) education in human rights;
(c) advising and assisting people who
claim to be victims of violations of their Convention rights;
(d) developing expertise in human rights;
(e) bringing legal proceedings on human
rights issues in the public interest?
The Law Society and the Bar Council support
the establishment of a Human Rights Commission (HRC), the purpose
of which should be not only the protection of human rights, but
also the promotion of an understanding of those rights and the
monitoring of compliance with them.
The Human Rights Act was one of the most fundamental
and far-reaching reforms enacted during the life of the last Parliament.
It is imperative to establish a body whose main aim is to foster
a human rights culture in order to ensure that respect for a written
code of fundamental rights and further development of such rights
become embedded in the constitutional arrangements of the United
The Task Force and the Home Office Human Rights
Unit ("HRU") accomplished the important tasks of producing
guidance, training, information and advice both for public authorities
and for the public at large. They also helped to promote awareness
of the Act and to counter the negative publicity which accompanied
the bringing into force of the Act. The need for this work did
not cease when the Act came into force. The extent to which the
public sought assistance from the HRU is powerful evidence of
continuing demand for such assistance.
There is a continuing need for a body able to
give authoritative independent (non-governmental) advice on human
rights matters, both to public authorities and the public at large.
There is also a need, as we identify below, for independent monitoring
of the work of public authorities and of the activities of the
The promotional functions will, it is hoped,
assist public authorities to develop best practice in a manner
which is consistent across the country (and between the different
nations of the United Kingdom). Respect for human rights is best
fostered in this way, rather than by the piece-meal, costly and
unreliable route of development of human rights through litigation.
Indeed, the promotion of good human rights practice and an understanding
of human rights principles is one of the best ways of avoiding
costly and misconceived litigation.
In addition to the promotional function, a HRC
would be well-placed to contribute constructively to the litigation
process by providing advice and assistance to litigants or intervening
in appropriate cases. A HRC would be better placed than the Legal
Services Commission (even with the assistance of its Public Interest
Advisory Panel) to identify appropriate cases for support. It
will thus ensure that public funds for litigation are better targeted
and that hopeless and misconceived cases will not be pursued.
It would be better resourced than non-governmental organisations
for the purpose of intervening in proceedings to assist the courts.
The Committee can learn important lessons in this respect from
the experience of the Equal Opportunities Commission in relation
to the promotion and enforcement of European Community sex equality
law. The EOC has been very effective in using its powers strategically
to bring proceedings in its own name and to support individuals
in a manner which has led to very significant developments in
the law. In addition, a Commission might be empowered to bring
test cases independently of the need for an applicant to proceedings
to be a "victim" for the purposes of section 7 of the
Human Rights Act.
Without the existence of a HRC, the promotion
and protection of human rights would fall either to the existing
rights-based Commissions or to non-Governmental organisations
such as Liberty and Justice, or to the Government itself. There
are good reasons why these alternatives are not sufficient.
The existing Commissions do not cover the full
extent of the rights protected by the ECHR. They were established
for the purpose of providing expert resources in relation to areas
raising specific problems.
The NGOs simply do not have the resources required
to undertake the functions of a HRC. Their experience in the run-up
to 2 October 2000 showed that there was a huge demand for HRC-type
activities which they simply cannot meet on top of their other
Although the Government itself must continue
to promote human rights, it is not and will not be seen as independent
Above all human rights are intended primarily
to regulate the relationship between the individual and the state.
Promotion and enforcement should be undertaken by an independent
and expert body.
The Bar Council and the Law Society agree with
the objectives set out in question 1.
Additionally, we consider that the HRC should
have power to intervene in existing proceedings in the same way
as the Equal Opportunities Commission and the Commission for Racial
Equality, where the power to intervene is used selectively in
cases of significant public interest.
The HRC should have resources enabling it to
undertake comparative research, particularly in relation to the
developments both in the European Court of Human Rights and in
other jurisdictions, to be presented to the Court. As can be seen
from the development of the European Charter of Fundamental Rights,
human rights have to be seen in an international context where
developments in one modern liberal democracy inform and assist
the debate as to how developments should take place in other countries.
The HRC would also be well placed to publicise international treaties
as recommended by the UN treaty bodies.
The HRC could provide a valuable function by
researching developments both in this jurisdiction and elsewhere
and publishing reports on its finding. In essence, the HRC would
be a source of information both for the Government and for the
public, becoming the focal point for the public to contact for
advice and information on human rights issues. The legal profession
would want also work with the HRC to develop greater expertise
on human rights issues.
If a Human Rights Commission were established,
how should its role and functions relate to those of this Committee?
The Committee's role is to consider and report
on matters relating to human rights in the United Kingdom and
matters relating to remedial orders. Its terms of reference exclude
consideration of individual cases, it is not intended to have
a direct promotional function and, of course, it will not conduct,
support or intervene in litigation.
Moreover the Committee's expertise will be critical
in the future in the Parliamentary scrutiny of ministerial statements
under section 19 of the 1998 Act. It is not appropriate that the
Commission should question ministers in relation to such statements.
That is properly the task of a Parliamentary body. Though of course
in appropriate instances the Committee should be able to draw
on the expertise of the Commission.
Thus we consider that the HRC should have a
much more outward-facing role in the context of protecting and
promoting human rights through education, conduct of proceedings
etc. An essential part of this role would be a right to submit
evidence to the Committee on relevant issues, including those
relating to the scrutiny of particular areas of governmental activity
or of individual legislative proposals.
Although we shall come on to this in more detail
in our response to Question 7, we consider that the HRC should
submit an annual report to the Committee.
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?
We consider the order of priority as set out
in Question 1 to be perfectly adequate, though any legislative
statement of the Commission's functions should allow for flexibility
so that the priorities could be altered if necessary. We consider
the undertaking of comparative research to be a useful adjunct
to Q1(b) (education in human rights) and intervention in proceedings
to be an adjunct to Q1(e) (bringing legal proceedings).
Arguably, if Q1(a)-1(d) work well, so that a
human rights culture is embraced within the UK, with people understanding
not only their own rights, but those of others, there should be
less need for the HRC either to bring or intervene in legal proceedings
concerning alleged abuses of those rights.
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 in England,
Scotland, Wales and Northern Ireland, or both a United Kingdom
body and bodies with territorial responsibilities? (The Northern
Ireland Human Rights Commission must continue to exist, as this
is one of the requirements of the United Kingdom's agreement with
Ireland about the future of Northern Ireland.
Given the current trend to devolve powers it
might seem anomalous to have a single body with jurisdiction extending
to all parts of the UK. Without seeking to generalise, it is likely
that the rights issues of major significance to, say, the people
of Northern Ireland, may be very different from the issues of
major significance to people in Wales. It is important to the
effective promotion of human rights culture that the body in question
should reflect regional or national variations. Further, each
part of the United Kingdom has its own legislative body with different
powers, functions and areas of responsibility, which should be
"shadowed" by an equivalent expert body. This would
have the added advantage of ensuring that the offices could be
quite small and able both to examine and deal proactively and
reactively at speed, to issues of concern at local level.
On the other hand, much of the legislation which
will fall to be tested against the HRA will be UK-wide. The critical
issue to ensure relevance. Thus if there is a single body it should
be required to act regionally and if there are a number of such
bodies they should be required to work closely together to share
information and effort (for instance in research and the development
of education programmes) to maximum efficiency.
The question is finely balanced and we prefer,
at this stage, only to identify the issues, without making a firm
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)?
As we have developed in answer to the previous
question we consider that generally the HRC in each country would
need to keep in close contact and co-ordinate its activities with
each other, particularly for the purposes of sharing research.
Key text below this rule.
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:
(a) 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?
(b) 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?
The issue of inter-relationship between different
bodies is important since human rights may cross the boundaries
of numerous bodies. For example, a HRC may well be called upon
to consider matters which raise important issues of privacy (currently
within the remit of the Data Commissioner), access to information
(within the remit of the Information Commissioner) and press freedom
(in which the Press Complaints Commission may have an interest).
Issues of discrimination will be of concern to one or more of
the statutory Commissions.
While we consider that the HRC should be a separate
body, working alongside other rights-based Commissions, this interrelationship
argues for a strong and well-defined statutory relationship to
ensure that there is proper consultation and communication. Inevitably,
there will be overlap, although there is already some overlap
in relation to the remits of Commissions such as the Equal Opportunities
Commission, the Commission for Racial Equality and the Disability
Particularly in the early years of operation,
the role and remit of the HRC and its relation and other rights-based
Commissions should be kept under review.
The Law Society and the Bar Council see strong
arguments against excluding equal opportunities altogether from
the remit of the HRC. The Convention prohibits some grounds of
discrimination which fall outside of the remit of the existing
Commissions, for example discrimination on the grounds of age,
religious or sexual orientation. These matters are of developing
importance as can be seen from the new Framework Directive on
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? In particular:
(a) how should its Chair, members and
key staff be appointed?
(b) how should its funding be provided?
(c) to whom should it be accountable (for
example, to a parliamentary body)?
(d) how should the matters mentioned in
(a), (b) and (c) take account of devolution in Northern Ireland,
Scotland and Wales?
The Bar Council and the Law Society consider
that the appointment of a Chair and members must be undertaken
with the utmost care and with full regard to equality of opportunity.
We recommend that the appointment of Chair and
members is undertaken by the Secretary of State following, strictly,
the Code of Practice and Guidelines laid out by the Office of
the Commissioner for Public Appointments in relation to ministerial
appointments.Key text below this rule.
In line with the provisions of the Northern
Ireland Act 1998, we recommend that the Chair of the Commission
is appointed for no more than five years at a time and that other
Commissioners are appointed for no more than three years at a
time. The statutory provisions in relation to the resignation
by or dismissal of a Commissioner as laid out in the Northern
Ireland Act 1998 should apply to all Human Rights Commissioners
within the United Kingdom.
Views are not sought specifically on the issue
of remuneration, but we suggest that the Secretary of State should
be authorised to direct the payment of remuneration, allowances
and fees and sums for the provision of pensions, again, following
the provisions of the Northern Ireland Act 1998.
Funding should be provided by Government. For
the HRC to fulfil the mandate which we envisage, it is essential
that it is funded properly by Government and is able to raise
funds from other sources (for example, from the EC) as necessary.
The Joint Committee would be well-placed to ensure that the Government
does meet the funding needs of the HRC.
The HRCor, if separate bodies are established,
each of the HRCs (England, Scotland, Wales, and Northern Ireland)should
be accountable to the Joint Committee and required to submit an
annual report on the performance of its functions to the Joint
Committee. The independence of the Commission from political interference
is of course essential.
In the 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?
It is imperative that the HRC is adequately
resourced. If HRCs were established in each of England, Scotland,
Wales and Northern Ireland, we would envisage a series of small
organisations anticipating and responding to the priority needs
of their own countries. A UK-wide organisation would, however,
still need to be able to deal with the needs of each country so
and, would need sufficient staff to enable it to do so.
We are unable to comment further in relation
to levels of staff and annual costs, save to say that in budgeting
for the Commissions the following at least will be necessary:
research, education, other outreach work, litigation and publicity.
It is also important that some provision should be made for communication
with other Human Rights organisations such as the Council of Europe,
the United Nations Committees and the European Commission.
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?
The HRC should have power:
to conduct investigations;
to require people to provide information
to conduct legal proceedings;
to assist other parties to legal
proceedings. In this, we include both supporting individuals by
providing them with legal representation and funding individuals
to bring cases;
to engage in a range of activities
designed to heighten awareness of issues within their remit;
to advise on the extent of rights,
with a view to the development of a Human Rights Charter;
to intervene in legal proceedings
in the public interest. We note here that the CRE and EOC have
intervened in many cases in the past. The Northern Ireland Human
Rights Commission has not been able to intervene on every occasion.
Accordingly the scope for such interventions needs to be carefully
to conduct investigations, following
allegations of systematic abuse, not only in public bodies, but
also in non-Governmental bodies;
to provide education in human rights
issues, both in schools and in Government departments and agencies,
including all staff within the Civil Service.
Are there other relevant issues or considerations
which have not been covered in answers to earlier questions?
We would conclude only by suggesting that, through
a system of education to promote and foster a human rights culture
in the United Kingdom and by working proactively to prevent breaches
or continuing breaches of human rights, a Human Rights Commission
is likely to prevent the need, in many cases, for costly litigation.
38 The HRU web site recorded over 15,000 hits per
week in November 2000 and, it is believed, more in October 2000. Back