Joint Committee On Human Rights Appendices to the Minutes of Evidence


A Human Rights Commission for the UK?

INTRODUCTION

  1.  The Human Rights Act Research Unit at the School of Law, King's College, is funded to monitor and evaluates the Human Rights Act (HRA). Our work to date has concentrated on its application in the courts. Our findings are produced as bi-monthly tables in the European Human Rights Law Review, as statistics on the Home Office's Human Rights Unit website and as occasional articles in Public Law and other journals.

  2.  The Unit (formally known at the Human Rights Incorporation Project) worked closely with the Home Office on the broad approach to incorporating the ECHR into UK law, submitting papers and attending meetings with officials and ministers to that end. We proposed that the courts be empowered to make a formal Declaration of Incompatibility where it was not possible for them to reconcile Acts of Parliament with ECHR rights but that they should be under a duty to interpret legislation compatibly where possible. We further proposed that ministers should make a statement of compatibility (or otherwise) when introducing Bills and that the courts should explicitly be designated public authorities to bring the common law within the scope of affected law. I attach one of the submitted papers, drafted July 1997. Others can be supplied on request.

  3.  The model we developed built on my earlier work at the Civil Liberties Trust.[49] This involved drafting a UK bill of rights which did not allow the courts to overturn Acts of Parliament but gave a major scrutiny role to a proposed Joint Committee on Human Rights. We called this "democratic entrenchment" of a bill of rights.

  4.  The impetus behind this approach was two-fold. First, to develop a uniquely British model for incorporation of the ECHR (or a bill of rights) which would be acceptable to government, the judiciary and human rights NGOs. Excellent and sustained research and lobbying in favour of incorporation or a bill of rights over many years (most notably by Lords Lester and Scarman) had stalled over concerns across the political spectrum—and among judges themselves—about overturning parliamentary sovereignty, or more particularly about giving the domestic courts the power to strike down statutes. This was the approach famously adopted by America and Germany and it was widely, but mistakenly, assumed to be the inevitable consequence of a bill of rights for the UK. To quote from a briefing by my Unit to the Home Office in June 1997:

    "The `British model' is an attempt to address this difficult issue (of parliamentary sovereignty) in a way which significantly increases the protection of fundamental rights without unacceptably encroaching on the democratic sphere".

  5.  The second aim of the `British model' was to develop an approach which recognised that the adoption of a bill or rights or the incorporation of a human rights treaty is potentially a major cultural, as well as legal, shift. To this end the model deliberately sought to establish a "dialogue" between the executive, legislature and judiciary on where the boundaries between conflicting rights—or individual rights and the common good—should lie. The aim was to weave acceptance and understanding of the ECHR into the democratic process rather than to isolate it as the preserve of judges, remote from the general public. To quote from the June 1997 briefing again:

    "Geoffrey Palmer, the former Prime Minister of New Zealand who introduced the NZ Bill of Rights, described it as providing `a set of navigation lights for the whole process of Government or public life to observe'. If the `British model' is effective the courts should be a place of last resort. This argument may well sound more convincing if, as in New Zealand, an effective Human Rights Commission were established to scrutinise existing laws and powers, provide `good practice' guidelines to the public sector and provide public education on the delicate balance of rights and responsibilities within the ECHR".

  6.  Ministers have endorsed this approach both on introducing the Human Rights Bill to parliament and on giving evidence to this Committee. In the House of Lords the then Home Office Minister, Lord Williams, maintained that:

    "[This] is not, as the Lord Chancellor, pointed out simply `You will be able to get your rights enforced quickly and cheaply because you will not have to make the journey to Strasbourg.' It is much more important than that. Every public authority will know that its behaviour, its structure, its conclusions and its executive actions will be subject to this culture|It is exactly the same . . . following the introduction of, for example, race relations legislation and equal opportunities legislation".[50]

In the same debate the Lord Chancellor, Lord Irvine maintained that through the Act "A culture of awareness of human rights will develop".[51] In giving evidence to this Committee, Lord Irvine defined such a culture as "one which shows a high degree of sensitivity on the part of our public institutions to the obligations that derive from the Act".[52]

  In an earlier session of the Committee the former Home Secretary, Jack Straw, stated that:

    "What we have set out to do is to mainstream the Human Rights Act so that it becomes embedded into the culture of government in this country and the culture of public authorities, rather than being seen as an offshoot".[53]

  7.  The problem is that, in contrast to the equalities legislation to which Lord Williams compared the Human Rights Act, there is no statutory body to promote the human rights culture which ministers repeatedly state is the intended goal of the Act and which the unique characteristics of the "British" model were specifically aimed at fostering.

PROPOSAL

  1.  The model for incorporating the ECHR into UK law reflected in the 1998 Human Rights Act (HRA) which my unit helped to develop included a Human Rights Commission as an essential element. In my view, the Act cannot accomplish the cultural—rather than legal—shift it was designed to achieve without a statutory body to advise on its implications, monitor its effectiveness and promote the values which underlie it.

  2.  A number of other organisations whose submissions I have been fortunate to receive before writing this—notably Charter 88, Justice, Liberty and the Institute for Public Policy Research—have set out detailed views on the role, functions, jurisdiction and composition of a Human Rights Commission. Many of their proposals overlap and in the main any disagreements are either technical or a question of emphasis. I am in agreement with the main thrust of these proposals which have been enriched by the excellent research conducted by the IPPR on human rights commissions around the world. I have no doubt that a free standing Human Rights Commissions with all the functions you list in question 1 of your Call for Evidence would greatly strengthen the effectiveness of the HRA and its relevance for people's lives. There is little point in my repeating the answers to your questions given by these other bodies.

  3.  The emphasis in this evidence, therefore, relates to question 3 of your Call for Evidence: In what order of priority would you arrange the functions of a Commission. In my view the priority at this time must be as follows:

    (a)  fostering a human rights culture in the UK through guidance and training to public authorities and those private and voluntary bodies deemed to have a public function.

    (b)  education and promotion on human rights both formally through advising the QCA and other curriculum bodies on the human rights unit of the new citizenship component of the curriculum and through broader public education and promotion of the values underlying the Act.

    (c)  systematic monitoring and evaluation of the Act in the courts, among public authorities and other relevant bodies to inform the guidance, training, education and promotion functions of the Commission, to help correct any unintended consequences of, or misunderstandings about, the nature of the HRA and to advise on changes to law or policy where appropriate.

  4.  A Human Rights Commission—or Human Rights Council—limited to these powers would, in my view, perform the "bottom line" functions without which there is a danger the Human Rights Act will be viewed at best as a technical, legal measure understood and used only by lawyers and at worst as an inducement to citizens to litigate. The opportunity will have been lost to use the HRA as a vehicle to improve public services through guidance that emphasises that the obligation to treat others with respect and dignity underpins all human rights values.

  5.  While the power to take test cases, advise "victims", scrutinise legislation and carry out investigations are all highly desirable, it is fair to say that to some degree these functions are carried out by NGOs [54] and the Joint Committee on Human Rights respectively. It would however be sensible for any Commission or Council to act as a first stage clearing house for bodies which carry out functions it does not directly perform itself, including those offering legal advice and representation.

  6.  The essential functions which are by no means adequately provided for currently are:

    (a)  guidance and training;

    (b)  education and promotion;

    (c)  monitoring and evaluation.

  The Human Rights Task Force and more specifically the Home Office's Human Rights Unit, provided excellent guidance and training to public authorities. In addition individual officers and smaller units in departments across Whitehall have been responsible for outreach to the public bodies for which they are (sometimes nominally) responsible. It is fair to say that all the NGO members of the Task Force were unanimously of the view that despite the best efforts of the dedicated staff at the Human Rights Unit many public authorities were grossly under-informed—or just as damagingly misinformed—about the Act. A survey carried out by the IPPR in June 2000 amply reinforced this message. Twenty four of the 60 public authorities questioned had no information about the HRA or had heard of it but did not think it would apply to them. Affected private and voluntary bodies are even more under-informed.

  7.  The Human Rights is moving from the Home Office to the LCD. While there is no doubt that the LCD will do all it can to promote the Act within its limited resources, building on the excellent service it has provided to the courts, there is a danger that in the eyes of some stakeholders this move will reinforce the impression that the HRA is only relevant to the tiny proportion of the population who seek remedies through the courts rather than heralding a shift in culture to pre-empt litigation.

  8.  Excellent introductory material on the HRA was produced to accompany its launch, but otherwise the general public have received almost no information on its terms, and more specifically on the values of rights and responsibilities which underpin it. There is no statutory body to amplify the meaning behind judgements from the European Court of Human Rights or the domestic courts (and associated authorities like the Parole Board) so that decisions like McKerr et al v UK or the release of Thompson and Venables are received with no adequate explanation by a body of comparable weight to the CRE, EOC, or DRC. It is then left to the government to field a response when quite often the government is a protagonist in the case in question.

CONCLUSION AND SUMMARY

  Others have made the case for a fully fledged Human Rights Commission with which I concur. In this evidence I propose that as a minimum what is needed is a Human Rights Commission or Council for England and Wales to promote a human rights culture through guidance, education and evaluation. This would complement and reinforce the work of other Commissions with whom there could be an informal federal structure. It is essential that this body be a statutory NDPB to give it sufficient authority. It could potentially be set up with reserve powers to cover other proposed functions in the future. Without such a body it is exceedingly unlikely that the HRA will begin to achieve the Lord Chancellor's stated goal of providing a "culture of awareness of human rights".

*Francesca Klug is a Senior Research Fellow at King's College School of Law, was a member of the Government's Human Rights Task Force and is the author of Values for a Godless Age, the story of the UK's new bill of rights, Penguin, 2000.

29 June 2001



49   A People's Charter, Liberty's bill of rights, 1991. Back

50   House of Lords Hansard (3 November 1997) 1228, 1308. Back

51   Ibid, 1228. Back

52   Minutes of Evidence, Joint Committee on Human Rights, 19.3.2001. Back

53   Minutes of Evidence, Joint Committee on Human Rights, 14.3.2001. Back

54   Although the latter are grossly underfunded for this purpose and would need a considerable injection of funds before "victims" and "potential victims" could be said to have access to their rights under the HRA, regardless of their means. Back


 
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