17. Memorandum from David Bean
QC, Murray Hunt, Raza Husain, Alison Macdonald, Ken Macdonald
QC, Jonathan Marks, Tim Owen QC, Rabinder Singh, Daniel Squires
and Rhoori Thompson
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 protecting 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?
There are a number of different models a Human
Rights Commission can take in relation to the functions it performs.
In our view a Commission should undertake various roles, for the
reasons set out below. We think it important to stress however
that the roles should not be seen as either inseparable or indispensable
and it would be better to have a Commission that performs some
of them than to have no commission at all.
The functions we envisage a Commission undertaking
can be divided into the following categories (1) education, (2)
advisory and legislative (3) investigatory. We do not however
believe that the Commission should possess a "casework"
(1) In relation to education in the widest
sense, a Commission should be at the forefront of co-ordinating
the creation and fostering of a human rights culture in this country.
The Human Rights Act should be judged as much by its ability to
change the way people conceive of themselves as citizens, and
their relationship with the state and one another as by its directly
legal impact. The Human Rights Act must also represent a set of
principles of good administration for public authorities, principles
which they positively aspire to promote and protect and do not
regard with fear and defensiveness. In this regard a Commission
could play a central role, outside the sphere of litigation with
its inevitable contentiousness, in fostering human rights thinking
and awareness. This should be through the production of educational
material for schools and other institutions, organising training
for public authorities (not just for their lawyers but for everyone
such as social workers, planning officers and teachers), and celebrating
achievement in the human rights field. Public bodies, such as
local authorities, should also be able to turn to the Commission
for specific human rights information and assistance, enabling
them to ensure that they comply with human rights standards, while
at the same time are not overly cautious. The provision of such
assistance at an early stage would hopefully avoid litigation
at a later date. In our view a Commission would be ideally placed
to co-ordinate these various educational activities. Its independence
of both government and various non-governmental organisations
would mean that it would run less of a risk of having its activities
coloured by its own agenda, or at least being perceived in such
a way. In this regard, as indeed in others, the Commission should
not focus solely upon the Human Rights Act. It also has an educational
role in relation to the United Kingdom's other human rights obligations,
both domestically and internationally. It could provide information
about the treaties to which we are a party, how they operate and
how they are progressing.
(2) In its advisory capacity we would envisage
the Commission providing a supportive but critical voice in debates
about proposed legislation. One of the great weaknesses in our
present system is that inadequate time and information is available
to enable Members of Parliament to make informed decisions as
to the human rights implications of proposed legislation. This
leads to tensions between respect for Parliamentary democracy
and adequate protection for human rights. It is left to the courts
to "cure" human rights violations contained in legislation,
possibly caused by mere oversight. The Commission in its advisory
capacity could play a central role in fulfilling the commitment
contained in the Bangalore Principles to an independent judiciary
and a legislature which is sensitive to and complies with human
rights obligations. In this regard the Commission would have the
advantage of an expertise in human rights, coupled with independence
from both those in government seeking to promote legislation and
from pressure groups seeking to influence it. If human rights
are to inform our laws, which should be one of the central aims
of the Human Rights Act, they should do so in a co-ordinated and
joined up way. A body such as the Commission would be ideally
placed in this regard. It would be hoped that it could work with
both central government and bodies such as the Law Commission
in ensuring that not only does legislation comply with the Human
Rights Act on a piece by piece basis, but that this is done with
an eye to the bigger picture of the whole legal framework. It
would also have the effect of rendering the legislative process
in relation to human rights more transparent. The current procedures,
under section 19 of the Human Rights Act, relating to legislative
compatibility produce statements that are not especially informative
and which do not disclose the legal advice upon which they are
based. The Commission, operating in a more open way, would both
enhance the quality of the legislative process and also better
equip those in the courts and beyond to understand the human rights
implications of legislation. Furthermore the Commission would
be able to review developments in the field of human rights in
international law, and assist in the reporting obligations under
various treaties to international organisations. Again this should
enable a more holistic approach to be taken by Parliament and
Government to human rights.
We believe that a Commission should have investigatory
powers (like those enjoyed by the Northern Ireland Human Rights
Commission under section 69(8) of the Northern Ireland Act 1998).
The Commission could investigate either patterns of alleged abuse
or serious single allegations. It should then submit reports to
the government containing both its conclusions and recommendations.
In relation to the conduct of investigations we believe that various
powers will need to be given to the Commission, for example to
call witnesses, order disclosure of documents etc. The ability
to conduct research on areas such as the impact of law and policy
on the human rights of juveniles or asylum seekers would enable
the Commission to approach such sensitive issues and focus debate
in a dispassionate and better informed way than is sometimes currently
Our view on balance is that the Commission should
not have the capacity to bring cases. We accept that there are
arguments both ways, and there is no doubt that the equality commissions
have played an important role through a litigation strategy. Nevertheless
we think that a capacity to bring cases may swallow up the Commissions
other important functions and might compromise its independence
in certain sensitive areas.
If a Human Rights Commission were established,
how should its role and functions relate to those of this Committee?
In our view it is important to distinquish between
the roles of a Parliamentary Committee on Human Rights and a Commission
outside Parliament. Their roles are complementary. The Parliamentary
Committee should continue to scrutinise legislation to avoid breaches
in human rights and be directly involved in ensuring that Parliament
takes a co-ordinated and informed approach to human rights. While
the Commission should be available to assist in this function
it should be primarily a role for the committee. Since most cases,
historically at least, of human rights breaches have involved
not legislation but administrative practices or rules of the common
law, the Commission would play a central role in keeping them
under scrutiny. Furthermore the role of education and the facilitation
of a human rights culture would be better achieved by a body that
is not tied to the legislation or to those directly involved in
politics to better maximise the message that human rights are
universal and distinct from politics.
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 that the Commission's training function
should be its priority in its early phase, simply because there
is so much to do to bring those who work in public authorities
and in the voluntary sector etc up to speed. Much valuable work
was done in the two years between enactment of the Human Rights
Act in 1998 and October 2000, when it came fully into force. But
the people who were trained were largely lawyers and judges. We
think it is too early to say at this stage what the Commission's
priorities should then be in terms of specific issues.
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 for 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).
In our view there should be separate Commissions
for England, Wales, Scotland and Northern Ireland. For the reasons
set out in the attached paper by Aidan O'Neill QC, of the Scottish
Bar, the Human Rights Act operates in very different ways in the
various countries due to their increasingly different constitutional
frameworks. The remedies available for human rights violations,
and the legislative structures are sufficiently diverse that a
UK wide Commission would probably be perceived to be insufficiently
close to the people and the legislature in Scotland, and perhaps
Wales, to carry out its envisaged tasks effectively. On the other
hand a purely Scottish or Welsh Commission would be insufficiently
close to the centres of Westminster and Whitehall to make an appreciable
difference in those areas of domestic law, such as discrimination,
which remain largely within the province of the United Kingdom
Parliament. In our view the solution is to have a separate Scottish
Commission which is linked to the Commissions of England and Northern
Ireland, and to give consideration to a separate Commission for
Wales. The Commissions would be able to pursue their own agendas,
but to co-operate when necessary, just as the Law Commission of
England and Wales works in tandem with the Scottish Law Commission.
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 responsibilities 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)?
See answer to question 4.
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?
In our view the Human Rights Commission should
co-exist with the other Commissions. On a pragmatic level the
merging of Commissions is likely to generate opposition and the
efforts required to overcome it would be best spent elsewhere.
Furthermore the work of the existing Commissions are focussed
primarily upon private entities or public entities undertaking
private functions, such as employment or the provision of goods
and services, whereas a Human Rights Commission would focus mainly
upon public bodies exercising public power. It should therefore
be possible for the Commissions to work together, within different
if overlapping spheres, just, indeed, as it would be hoped that
the Commissions of the various parts of the UK would do so. In
relation to equal opportunities it should be possible to allocate
responsibility along the lines suggested above with the Human
Rights Commission focussing on essentially "public"
issues and the other equality Commissions on private ones. It
may be that, ultimately, there should be a single equality commission,
embracing race, sex, disability and other discrimination issues.
The Northern Ireland experience suggests that this is a possible
model for the future in the rest of the UK as well. However, whether
or not the discrimination bodies should be merged into a single
equality commission should not, in our view, detract from or delay
the need for a human rights commission. Again the Northern Ireland
model suggests that it is perfectly possible to have a human rights
commission alongside an equality commission.
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?
While we have no specific suggestions in relation
to the mechanisms of appointment we are of the view that careful
consideration should be given to the benefits of appointing non-lawyers
to certain key positions. Such people, whether prominent academics
outside the sphere of law or other leading "civil society"
figures could play an important role. Not only would their expertise
provide an important diversity for the Commission, but it would
also constitute an important reminder of the way in which human
rights and human rights thinking can and should permeate society
generally and should not be seen as being merely confined to the
courts and for the benefit of lawyers.
(b) how should its funding be provided?
In our view the Commission should be primarily
publicly funded. While it is acceptable for it to receive private
funding from charitable foundations, such as those that currently
make donations to civil liberties organisations, money from private
bodies that might have a political or pecuniary interest in its
work should be refused to avoid any risk of compromising, or appearing
to compromise, independence.
(c) to whom should it be accountable
(for example, to a parliamentary body)?
It should not be accountable to any political
body. It should be a statutory body with its independence guaranteed
in its parent statute.
(d) how should the matters mentioned
in (a), (b) and (c) take account of devolution to Northern Ireland,
Scotland and Wales?
We have nothing further to add here to what
is said above in relation to devolution more generally.
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?
We have no particular experience or expertise
to offer on these questions but we would be surprised if the annual
cost exceeded £5m.
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?
See question 1 above
Are there other relevant issues or considerations
which have not been covered in answers to the earlier questions?
We have nothing to add.
18 July 2001