Joint Committee On Human Rights Appendices to the Minutes of Evidence


15.  Memorandum from Professor Andrew Ashworth, Dr Sally Ball, Dr Anne Davies, Professor Sandra Fredman, Mr Jonathon Herring and Dr Liora Lazarus

QUESTION ONE, TWO AND THREE: AIMS AND FUNCTIONS

  1.  We expect that many submissions will deal with the role a Human Rights Commission should play in supporting individual victims of human rights violations through the courts or otherwise. We endorse the importance of that role. But in our submission we would like to emphasise the proactive role a Human Rights Commission should play in facilitating the positive compliance by the executive of its obligations under the Human Rights Act 1998 (HRA).

  2.  The proactive role envisaged for a Human Rights Commission mirrors the proactive, forward looking nature of the HRA 1998. The duty imposed by Section 6, which makes it unlawful for a public authority to act in a way which is incompatible with a Convention right, goes further than simply requiring the body to respond to complaints from victims. It creates a positive duty to ensure that all actions comply with the Convention. This is also reflected in Section 19 HRA 1998, which requires pre-legislative screening of all Bills to check for compatibility. Both these are positive duties, to be pursued at the initiative of the relevant public body, rather than as a response to a complaint by an affected individual. This accurately reflects too the many policy statements made during the passage of the HRA, which emphasised that the aim of the Act was not just to create an avenue for aggrieved individuals to pursue their rights in court. It has from the start been an avowedly "mainstreaming" measure, attempting to create a culture of human rights, so that all public decision-makers will ensure that their decisions do not impact adversely on human rights.

  3.  Despite the proactive nature of the HRA, there are no express provisions in the HRA to ensure compliance in respect of positive duties. Yet compliance measures are clearly necessary. We submit that a Human Rights Commission would be ideally placed to perform this function. The need for compliance measures has been demonstrated by research into the effectiveness of the voluntary measures undertaken within Whitehall in the period leading upto the implementation of the HRA.[39] The strategy was one of deliberate decentralisation, the aim being to ensure that affected actors themselves took the initiative and responsibility. However, Zifcak's research demonstrates that this approach led to a set of fragmentary responses, which were often far short of comprehensive. Instead of asking: "Can we be absolutely sure that this provision is fully in compliance with all our international obligations?" the question posed within Whitehall, was usually "If it gets to court, do we have a reasonably solid argument to put up in support of our claim that this provision is in compliance?" Even less guidance and support has been given to the numerous public authorities now covered by the Act. The result is to create either a highly defensive "bunker" mentality, or a situation in which public authorities are continuously taken by surprise and forced to take rearguard action.

  4.  Experience since the Act came into force bears out this pre-implementation analysis. This is clearly evident in respect of the Home Office, which has generally regarded the HRA as an obstacle to be avoided rather than as embodying sensible restrictions on public action. In particular, there has been a complete reluctance to set out the human rights issues in any White Paper or consultation paper. On too many occasions the government approach is "What can we get away with?" Three examples illustrate this well. First, the anti-social behaviour order in the Crime and Disorder Act 1998 was attacked widely for its failure to measure up to human rights standards. Yet in not one of its publications did the Home Office advert to his issue, let alone explain its own position. The second example was the Dangerous People with Severe Personality Disorder Bill, which was also attacked strongly on human rights grounds before it was withdrawn from Parliament. There was a green paper, "Managing dangerous people with severe personality disorder", which did advert to the human rights issue. But it put only one side of the issue, and failed to acknowledge that its view was a contested, not to say a minority, position. The third concerns the provision in the Criminal Justice and Court Services Bill 2000 providing for the withdrawal of social security benefits from persons who failed to comply with community sentences. Although the government conceded in significant ways to objections on human rights grounds, it consistently failed to acknowledge that its approach to the Convention was a minimalist, read-it-down-as-far-as possible approach.

  5.  While the Joint Committee is in a position to play a crucial role in remedying this defect with respect to proposed and existing legislation, we suggest that a central role of a Human Rights Commission should be to facilitate the proper implementation of these positive duties by public bodies in their executive functions. The Joint Committee has already demonstrated the effectiveness of vesting scrutiny powers in a body independent of the executive. Provisions in the Criminal Justice and Police Bill 2001 were potentially in breach of Convention rights, especially those relating to on-the-spot fines. The Joint Committee on Human Rights became involved at this point, and questioned ministers. The justifications given to the Joint Committee in the letters from ministers are much clearer and more substantial than the explanations offered to the public when the proposals are put forward.

  6.  A Human Rights Commission should have powers to facilitate compliance with the duty of all public authorities to act compatibly with the Convention. The nature of these powers and the extent to which they include an element of compulsion would need detailed attention, but there is a wealth of recent experience in respect of positive duties to promote equality under the Northern Ireland Act 1998 and the Race Relations Amendment Act 2000. The Equality Commission in Northern Ireland has powers to require public authorities to draw up equality schemes, which must be approved by the Commission. It may undertake an investigation without receiving a complaint, in pursuance of the general duty keep under review the effectiveness of the statutory provision. We suggest that this is too rigid for these purposes. Instead we suggest that the starting position should be powers which are essentially advisory and conciliatory, encouraging authorities to create proper auditing mechanisms, and assisting them in setting them up. As a fallback position, there should be a sanction equivalent to the compliance order which may be imposed in respect of breaches of the Race Relations Amendment Act 2000. In any event, we would suggest that the Commission be closely allied to the joint Committee, in much the same way as the Parliamentary Commissioner relates to the PCA Select Committee.

  7.  Participation and Transparency. A key aspect of successful proactive action is participation by affected group and transparency. The need for both has been underscored by the evasive position taken by government so far. The government generally responds to questions by stating simply that government has received advice that a certain proposal or provision is Convention-compatible. On several occasions that advice is based on a particular contested view, and seems to be the answer of one lawyer to the question "can we possibly get away with this?", rather than a rounded assessment of the human rights position and a recognition that the proposal goes to the vary edge of compatibility. Zifcak shows that in both Canada and New Zealand, the centralisation of human rights promotion and interpretation has been accompanied by a substantial degree of openness. In particular, a detailed manual containing guidelines with respect to the interpretation of particular convention provisions has been issued, updated regularly by reference to relevant judicial decisions. By contrast, it has been made clear that no statement of reasons will accompany ministers' declarations that legislation they introduce is compatible or incompatible with the Convention. Ministers may, however, respond to questions about the compatibility of particular provisions in committee. We submit that the compliance role of the Human Rights Commission should include powers to facilitate participation in decision-making by affected persons, and to require transparency.

Question 1e. Proceedings on human rights issues in the public interest

  8.  As well as the proactive role outlined above, we submit that a Human Rights Commission should be able to take a leading role in litigation. This requires that it should have standing in its own right in relevant circumstances. We suggest that a Human Rights Commission should have power to bring the matter to court where appropriate in the following situations:

    —  The victims of the alleged human rights violation are incapable of bringing actions themselves. This might include infringement of the rights of children, the mentally disabled, or elderly people in nursing homes.

    —  The victims are capable of bringing actions themselves, but financial difficulties prevent the bringing of actions. For example, it is unlikely that many homeless people would be able to obtain legal aid, even if they have a legitimate claim that their rights have been infringed.

    —  The victims do not wish to seek a remedy. For example, battered women or older people abused by those caring for them may not wish to pursue a remedy (perhaps for fear that it would perpetuate abuse).

    —  It is not possible to identify an individual whose rights have been violated, although it is clear that someone's human rights have been violated. The most obvious example would be where it may be possible to show that a group's human rights have been infringed, even though it cannot be shown that any particular individual's rights have been infringed.

    —  It may be necessary for the Human Rights Commission to bring proceedings to ensure the UK's compliance with its obligations under international human rights treaties and conventions (eg the United Nations Conventions on the Rights of the Child).

  9.  These are situations are of particular significance because they involve the most marginalised and socially excluded in society. One of the strongest arguments that has been raised by those who oppose human rights is that human rights are only of use to the rich and powerful and are not accessible to the poorest and weakest in society. Without a Human Rights Commission there is a danger that this argument will provide an indictment of the UK's Human Rights Act.

  10.  Even if it was not thought appropriate for the Human Rights Commission to institute proceedings we submit that it should have standing to intervene as amicus curiae in a case brought by an individual. This might enable a court hearing a case involving two parties to receive arguments concerning the wider human rights issues raised by the case.

Question 4. Devolution

  11.  Context: Neither the Scottish Parliament and the Northern Ireland Assembly may legislate in a way which conflicts with a right protected by the European Convention of Human Rights. This is unlike the Westminster UK Parliament, which retains the right to adopt primary legislation that is inconsistent with rights protected by the European Convention on Human Rights. The National Assembly of Wales has no power to adopt primary legislation as devolution in Wales is purely executive devolution. In the case of all three bodies, executive action or inaction must not be incompatible with a Convention right.

  12.  The Northern Ireland Human Rights Commission was established by the Northern Ireland Act 1998.[40] There presently exist no similar Commissions for England, Scotland, or Wales, but there has been considerable debate in Scotland in particular as to whether such a Commission should be established for Scotland. In response to a motion in the Scottish Parliament on 2 March 2000,[41] the Scottish Human Rights Forum, facilitated by the Scottish Human Rights Centre, has published proposals for a Human Rights Commission for Scotland.[42] It takes the view that there are reasons to justify a separate Human Rights Commission for Scotland, namely that it believes that human rights have not been embraced in Scotland to the same extent as elsewhere in the UK, and that Scotland has its own distinctive legal system, education system and culture.

  13.  We submit that there should be one Human Rights Commission for the whole of the United Kingdom rather than separate Human Rights Commissions established for England, Scotland, Wales and Northern Ireland (subject to the retention of the Northern Ireland Human Rights Commission as required by the Belfast Agreement). It is important that the Human Rights Commission reflect a human rights agenda for the United Kingdom (as illustrated by its domestic legislation and its international obligations), rather than be seen as reflecting any agenda of devolution or of actors within the constituent parts of the United Kingdom.[43] Human rights ought to enjoy equal protection throughout the United Kingdom as a matter of principle, and a single Human Rights Commission would contribute to this principle, whilst separate Commissions could dilute it. Moreover, a single Human Rights Commission would enable a better use of resources, ensure a more efficient and streamlined agenda, and avoid duplication of costs and effort.

  14.  This proposal is made in the recognition of the fact that the Northern Ireland Human Rights Commission is already in existence, and must continue to exist as part of the Belfast Agreement. Aside from this requirement there is a stronger case in principle for a separate Northern Ireland Human Rights Commission than for any other regional Commission, given that human rights and discrimination in Northern Ireland has a context far more directly related to issues of devolution than is the case of Wales and Scotland. [44]

  15.  Should the proposal for a single Commission be rejected in favour of some type of separate structure for the devolved regions, we suggest that Commissions established for Scotland and Wales ought to enjoy a regional remit under the umbrella of a United Kingdom Human Rights Commission (which should have ultimate power over them). Those Commissions ought to have special concern for the "audit" function in relation to their regions (both legislation and executive action in Scotland, and executive action in Wales), and for education on human rights in their regions. However, they ought to operate under the direction of, and be accountable to, the national Human Rights Commission, so that matters of principle are treated the same across the United Kingdom, and best use is made of resources. Given that there is no devolved English assembly or government, there need not be a special Commission for England. With regard to the Northern Ireland Human Rights Commission, it will be important for the United Kingdom Human Rights Commission to liase with it so far as possible without usurping its role.

Question 6. Relationship with other Commissions

  16.  We suggest that the Human Rights Commission should co-exist with these bodies in the first instance, with the possibility of merging with them at some point in the future.

  17.  A single commission with responsibility for all aspects of human rights would have several advantages:

    —  It would provide a "one-stop-shop" for complainants and others seeking advice, so that they would not have to find their way around confusing jurisdictional boundaries between organisations.

    —  It would be able to develop a high public profile.

    —  It would be able to make efficiency savings by sharing offices and support staff.

  18.  But there are some significant disadvantages with this proposal:

    —  Existing bodies, particularly the EOC and the CRE, already have a high public profile in their own fields and might lose their distinctive identities if they were subsumed in a much larger and more diverse Human Rights Commission.

    —  A single Human Rights Commission would reduce opportunities for healthy competition between agencies: it might become complacent and unwilling to challenge "establishment" views.

    —  It might not be desirable to give the Human Rights Commission the same role as existing bodies: if the Human Rights Commission were to focus primarily on fostering a human rights culture through research and education programmes, for example, its work might sit uncomfortably with the EOC's greater emphasis on the support of litigation. It would be undesirable to merge bodies which did not perform similar functions.

  19.  We would therefore suggest a compromise position in which separate Human Rights Commission is established in the first instance. To be successful, this compromise would need to have several features:

    —  There should be an overseeing committee with a representative from each body which could address jurisdictional problems. This might be analogous to the collegiate governance structure proposed by the IPPR for a single Human Rights Commission.[45]

    —  The overseeing committee should ensure that the various commissions' research programmes did not overlap unnecessarily or duplicate each other.

    —  The overseeing committee should also identify areas in which the commissions might usefully publish joint guidance documents or engage in joint educational initiatives.

    —  Individual requests for advice or assistance should be dealt with by the body to which they are made (unless this body has no jurisdiction to assist at all). If a case raises cross-cutting issues, this body should be responsible for setting up and managing a team of case-workers from other relevant bodies, and liasing with the complainant. The complainant would receive the benefit of advice from all the commissions, but this advice would be delivered through a single point of contact.

  These arrangements should be kept under review. If joint working failed to develop successfully a single Human Rights Commission might be necessary in order to overcome organisational boundaries. If joint working developed very successfully, a single Human Rights Commission might emerge as a more natural organisational structure. Thus, a separate Human Rights Commission should be established in the first instance, with a single umbrella body as a possible future development.

*The participation of Faculty members does not imply that the content of this Response represents the view of the Law Faculty or has the official endorsement of the Law Faculty.

16 July 2001



39   Dr Spencer Zifack Sleepwalking into the Revolution? Pre-Legislative Scrutiny in Whitehall under the Human Rights Act 1998 1999. Back

40   Northern Ireland Act 1998 Section 68. Back

41   See Minutes of Proceedings, Vol 1, No 57 Session 1, Meeting of the Parliament, Thursday 2 March 2000. Back

42   Protecting our Rights-A Human Rights Commission for Scotland (see http://dspace.dial.pipex.com/shrc/human-rights-commission.htm Back

43   See Simeon Beckett and Ian Clyde "A Human Rights Commission for the United Kingdom: the Australian Experience" [2000] 2 European Human Rights Law Review 131, 136. Back

44   Beckett and Clyde, 136. Back

45   Saran Spencer and Ian Bynoe, A Human Rights Commission: the options for Britain and Northern Ireland (1998).  Back


 
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