15. Memorandum from Professor
Andrew Ashworth, Dr Sally Ball, Dr Anne Davies, Professor Sandra
Fredman, Mr Jonathon Herring and Dr Liora Lazarus
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
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
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.
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
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.
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,
the Scottish Human Rights Forum, facilitated by the Scottish Human
Rights Centre, has published proposals for a Human Rights Commission
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.
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. 
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
It would be able to develop a high
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"
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.
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
Northern Ireland Act 1998 Section 68. Back
See Minutes of Proceedings, Vol 1, No 57 Session 1, Meeting
of the Parliament, Thursday 2 March 2000. Back
Protecting our Rights-A Human Rights Commission for Scotland
(see http://dspace.dial.pipex.com/shrc/human-rights-commission.htm Back
See Simeon Beckett and Ian Clyde "A Human Rights
Commission for the United Kingdom: the Australian Experience"
 2 European Human Rights Law Review 131, 136. Back
Beckett and Clyde, 136. Back
Saran Spencer and Ian Bynoe, A Human Rights Commission: the options
for Britain and Northern Ireland (1998). Back