Joint Committee On Human Rights Sixth Report


13. The question whether there is a rationale for establishing a human rights commission requires an assessment of two elements. The first is an examination of the extent to which the Human Rights Act is observed and informs the practices of all public authorities. The second will be an examination of the practical benefits of seeking to create a culture of respect for human rights, and the role a commission might play in that task.

The Rights Themselves

14. Section 6 of the Human Rights Act 1998 makes it unlawful "for a public authority to act in a way which is incompatible with a Convention right".[14] These Convention Rights are:

-  the right to life (Article 2);

-  the right to be free of torture and inhuman or degrading treatment or punishment (Article 3);

-  the right to be free of slavery, servitude, and forced or compulsory labour (Article 4);

-  the right not to be arbitrarily deprived of liberty (Article 5);

-  the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law (Article 6);

-  the right not to be punished for an action which did not constitute an offence at the time of its commission (Article 7);

-  the right to respect for private and family life, the home and correspondence (Article 8);

-  the right to freedom of thought, conscience and religion (Article 9);

-  the right to freedom of expression, including imparting or receiving information (Article 10);

-  the right to freedom of peaceful assembly and association, including the right to form and join a trade union (Article 11);

-  the right to marry and found a family (Article 12);

-  the right to enjoy the other rights without discrimination (Article 14);

-  the right to peaceful enjoyment of possessions (Protocol 1, Art. 1);

-  the right to education, in relation to which the State is to respect the right of parents to ensure that children receive education in conformity with their religious and philosophical convictions (Protocol 1, Art. 2);

-  the right to free elections by secret ballot at reasonable intervals (Protocol 1, Art. 3);

-  the right not to be sentenced to death except in time of war (Protocol 6, Articles 1 and 2).[ 15]

15. The European Convention was drafted to transform the abstract human rights ideals set out, after the Second World War, in the United Nations Universal Declaration of Human Rights, into a concrete legal framework for the member states of the Council of Europe. Like the Universal Declaration the European Convention included economic and social rights (for example in the UN Declaration in Articles 22 to 26 and in the European Convention in Protocol 1, Articles 1 and 2) as well as civil and political rights.

16. The UN Declaration had been intended both to exert a moral and political influence upon states and also to herald more detailed human rights provision, drafted by the UN. That is now embodied in the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Political Rights (1976). Together with the UN Declaration, the Covenants form what is generally referred to as the International Bill of Rights. Additionally, several specialised conventions have been drafted by the UN and ratified by a large number of states, including the UK. Those include the Genocide Convention(1951), the Convention on the Elimination of All forms of Racial Discrimination (1969) the Convention on the Elimination of Forms of Discrimination against Women, the Convention against Torture and the UN Declaration of the Rights of the Child.

17. From the day of their ratification by the UK, all of these Covenants and Conventions, since they bind us in international law, have been persuasive authority in the UK courts in cases of ambiguity as to how UK law should be interpreted, on an issue to which they are relevant. Hence for many years, from these sources, human rights have been exerting a strong influence on the development of our jurisprudence. In addition, of course, the European Convention established an international complaints procedure and the European Court of Human Rights, in Strasbourg, to which UK citizens have had direct access since 1966. Both the European Convention Rights themselves and the Strasbourg jurisprudence about them were also of persuasive authority in UK law and undoubtedly, influenced our national laws very considerably before the rights were incorporated, through the 1998 Human Rights Act. Now, the UK courts will continue to use the UN Conventions and Covenants as persuasive authority—as indeed does the Strasbourg Court—so that they will continue to form part of the UK's human rights matrix. But, there is now the additional duty, under the Human Rights Act, for the courts to implement the European Convention Rights, since they are now a part of our law, as we set out above.

18. Thus Section 7 of the Act provides for redress for victims of breaches of the duty to comply with Convention rights. Anyone who believes that their rights have been violated or threatened may therefore seek redress or protection through the courts.

19. We need hardly say that the protection of human rights cannot be the exclusive responsibility of the courts. There are limits to what can be achieved by the judicial process. It cannot give a remedy for every wrong. In particular, in the case of a measure such as the Human Rights Act, which is both new and intended to be far-reaching, the legal process does not have a reality unless people know what it is and know how to use it. As some of our witnesses commented—

We were concerned that the Human Rights Act would place too high a burden of proof to take cases successfully. Disabled people and carers have the hurdle of knowing their rights, getting a solicitor and a good one [who] understands the interaction of community care law and the Human Rights Act, being legally aidable and having all the time and energy to pursue a legal case. These are very significant and very real barriers.[16]

The Act provides only one course of action to remedy violations of certain civil and political rights: litigation Thus to trigger this remedy requires a victim who has the knowledge, determination, time and money to initiate and persist with legal action.[17]

¼ litigation is an inadequate and expensive way of bringing about change; it relates only to specific instances, generally limiting its impact to the facts of the particular case, and is both unpredictable and very slow.[18]

The protections that the Human Rights Act offers to individuals must be understood as intrinsically intimidating to enact—to successfully "fight for your rights" against the decisions and actions of public authorities is a daunting task for the most eloquent, affluent and assertive member of society to undertake. How much more so for those who will often have the most pressing cases to make—the young, the elderly, and indeed all those who are vulnerable; marginalised; impoverished; seeking asylum; living chaotic or transient lifestyles; or poorly educated (in relation to their rights and more broadly)?[19]

20. The Chairs of the existing anti-discrimination commissions stressed—

... that one of the things we have learnt from 25 years' experience in the Equal Opportunities Commission is the necessity to have both enforcement and promotion, because one without the other limits you.

If you can promote what a law means and you inform people of what rights and obligations that law imposes then, firstly, you reduce the likelihood of people breaking it but secondly, if they do, it means you can at least talk common language ... Law alone without bringing people on board will also fail.

The law has an important role to play but promotional work equally balanced out has a fundamental role to play. If we are to deliver sustainable change then promotional work is profoundly important.[20]

We agree. And in this report we consider the broader issues relating to human rights which go beyond the forms of legal redress for victims set out in the Human Rights Act.

Universal Rights

21. The Government's stated aspiration when elected in 1997 was that the Human Rights Act would nurture a culture of understanding of rights and responsibilities.[21] This culture would incorporate the wider human rights values and obligations set out in the UN measures referred to above. It does not depend solely, therefore, on the incorporation of the ECHR, even if it is seen essentially to flow from it. In the Universal Declaration of Human Rights, the peoples of the United Nations reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and the equal rights of men and women and determined to promote social progress and better standards of life in greater freedom.

22. While some universal rights are more obviously justiciable than others, it would be a mistake to try completely to divide civil and political rights, as justiciable and enforceable in courts of law, from economic, social and cultural rights, seen as non-justiciable and a matter for the legislative and executive branches of government, along with voluntary action. These kinds of rights frequently overlap.

23. For example, in protecting the right to equal treatment without unfair discrimination, the courts enforce a civil right, but in so doing they also indirectly protect social and economic rights.

24. However, it is true that different enforcement mechanisms can be suitable for different rights in different situations. The Human Rights Act recognises this. It safeguards parliamentary supremacy, because it empowers judges only to declare that legislation is incompatible with Convention rights and not to over-rule it. Our democratically elected Parliament continues to be the only body which can legislatem, and consequently lobbying and voluntary action remain an essential means of ensuring that human rights are incorporated into the legislative process. However the Act, in particular by making the courts into a public authority which must themselves act compatibly with the Convention rights, makes effective judicial remedies available to the victims of breaches.

25. The extent to which rights should be justiciable ultimately depends on a balancing of democratic legitimacy and the need for an ultimate safety mechanism for protecting basic rights. But that understanding makes it clear that it is essential, both for the pursuit of rights in court and to ensure the proper informing, by lobbying and other traditional methods, of the democratic process, that people are made aware of their human rights and that those rights should guide the processes of all the public authorities.

Positive Obligations

26. The idea of positive obligations is rooted in the text of the European Convention on Human Rights. Article 1 binds the Parties to the Convention, in international law, to "secure to everyone within their jurisdiction" the Convention rights. This means that the obligation of states goes beyond mere non-interference with the rights. In some circumstances, they are obliged to take active steps to protect people's rights against interference by others, or to enhance people's capacity to take advantage of the rights. As the European Court of Human Rights has regularly said, the Convention rights are to be made real and effective, not theoretical or illusory. The obligations which flow from the Convention rights have to take account of these requirements flowing from Article 1.

27. For example, the right not to be intentionally deprived of life (Article 2) imposes positive obligations which include a duty on the state to protect people against threats in some circumstances, a duty to carry out a timely and effective investigation of suspicious deaths, and a duty to take reasonable steps to ensure that those responsible can be made legally accountable. The right to be free of torture and inhuman or degrading treatment or punishment (Article 3) imposes equivalent obligations, and the examples could be multiplied. Although Article 1 is not among the Convention rights, which have been made part of UK law by the Human Rights Act, its influence has so permeated the interpretation of the substantive Convention rights that our national courts have rightly treated positive obligations as being imposed on those public authorities, which exercise relevant functions on behalf of the state.

28. Apart from the positive obligations which arise from Convention rights generally by virtue of Article 1, some of the substantive rights are formulated in such a way as to give rise to specific positive obligations. For example, Article 8.1 includes a right to respect for private and family life, home and correspondence. The notion of "respect" goes beyond non-interference. It has wide-ranging implications for the duties of those public authorities whose functions impinge on the protected interests. For example, in certain circumstances it imposes duties to provide information to people about their family backgrounds, to take action to protect people's homes against environmental pollution, to take steps to re-unite families whenever possible after children have been taken into the care of a local authority, or to provide proper safeguards for personal information held by public authorities. These examples could again be multiplied.

An Ethical Framework

29. The key to the effective protection of rights lies in creating a culture in public life in which these fundamental principles are seen as key to the design and delivery of policy, legislation and public services. They are essentially an ethical framework within which to work—and they provide a basis for the development of a shared ethos. Shortly after the Act had been passed, the then Home Secretary expressed his belief that—

The Act points to an ethical bottom line for public authorities ...This ... should help build greater public confidence in our public authorities ... Consider the nature of modern British society. It is a society enriched by different cultures and different faiths. It needs a formal shared understanding of what is fundamentally right and fundamentally wrong if it is to work together in unity and confidence ... The Human Rights Act provides that formal shared understanding.[22]

More recently, the current Home Secretary has reiterated this vision—

We want British citizenship positively to embrace the diversity of background, culture and faiths ... The Human Rights Act can be viewed as a key source of values that British citizens should share. The laws, rules and practices which govern our democracy uphold our commitment to the equal worth and dignity of all our citizens.[23]

30. The then Cabinet Secretary essayed a definition of this ethical framework or culture when he reported that the Government's Human Rights Task Force had reflected that—

... initial thinking about the Human Rights Act has tended to concentrate on legal questions about compliance ...Though it is clearly right that all public authorities should not act incompatibly with the Convention rights, the Act was intended to do more than merely avoid direct violations of human rights. As the senior judiciary have commented ... this is a constitutional measure, legislating for basic values which can be shared by all people throughout the United Kingdom. It offers a framework for policy-making, for the resolution of problems across all branches of government and for improving the quality of public services. From this point of view it is not right to present the Human Rights Act as a matter for legal specialists. The culture of rights and responsibilities needs to be mainstreamed.[24]


31. The Head of the Civil Service has suggested that so far as it applies to Whitehall and the wider world of public authorities, this idea of mainstreaming of human rights involves—

-  developed awareness at all levels of the Convention rights and the associated balances and limitations, as an integral part of public administration and policy-making;

-  frequent practical expression of the positive difference the Convention can and does make, by voluntary good practice as well as by court decision;

-  clear and public demonstration of commitment to the Convention values and principles at the highest levels of government and public authorities;

-  public recognition of the Convention values and principles in delivering quality public services.[25]


32. The primary focus of Convention rights is, therefore, on "public authorities". Only they are expressly said to act unlawfully if they violate those rights. This is described in legal discourse as the "vertical effect" of the Act: it operates principally to protect individuals and groups against the abuse of power or dereliction of duty by the state in the sphere of human rights. It does not directly regulate "horizontal" relationships between private individuals. However, it is increasingly accepted that the Act will have some measure of "horizontal" effect on the relationships between private citizens, mostly arising from the duty of courts and tribunals themselves to act in compliance with Convention rights. This duty ought to prohibit them from issuing a judgment, even between individuals who are not public bodies, if the consequence was that one of the parties would suffer a clear breach of a human right, which was not justified. It seems clear that it would be inconsistent with their duty to act compatibly to do so, though that understanding still requires some clarification. And the Government clearly hopes that there will be reciprocity between citizens and perhaps also in the "vertical" relations between the citizen and the state. One Minister offered us a vision of what this culture might mean in the world outside Whitehall—

... culture by its very nature is nebulous and somewhat hard to pin down ... and the wider we go inevitably the more nebulous it becomes. Beyond that we do go ... into a society which is faced with all kinds of frictions and tensions that were not there 50 years ago. In many ways we live in a much healthier and better society than we did. There are also frictions, fragmentation, the atomisation of society ... this creates problems which we have to address. We have to address these across a whole range of policies, social and economic, as well as more civil and political issues. If we are to rebuild our communities it is not just a question of injecting money into areas which particularly need them—crucially important as that is—but we have to find ways we can bind ourselves together again. At the heart of the Human Rights Act ... there is a sense of mutual obligation and reciprocity. That in itself must be the core of any successful community, of any society that is living harmoniously together ... [26]

Promoting a Culture of Respect for Human Rights

33. The government is to be commended for having enabled courts and tribunals to receive training in their responsibility for giving direct effect to the rights protected by the European Convention on Human Rights. Some £5.5 million was spent on that important exercise which enabled the judiciary to interpret and apply the Convention rights in accordance with their purpose and international human rights law, weaving the Convention rights into the fabric of our laws (written and unwritten).

34. However, this focus on judicial training has not been matched by an equivalent effort to promote a wider culture of human rights in government, among the many diverse public authorities, and among the citizenry. As one of our witnesses said—

As at now there is no organisation that is taking the lead in educating people about the existence of the Human Rights Act. If the people are not aware of their rights under the convention, let alone the processes for exercising their rights, how can the people seek [a remedy for] their violated rights: The Act will remain another piece of wonderful legislation on the statute books. Only the educated, rich and powerful will have real access to justice under the convention. In fact and often, it is the uneducated, poor and the vulnerable ones whose fundamental human rights are violated.[27]

35. The initial publicity campaign to herald the implementation of the Act was short lived. Since then, we should also recognise the efforts to invoke human rights in the context of citizenship education (introduced in September 2002) and the work of the Human Rights Unit of the Lord Chancellor's Department. But there are problems for any Government department attempting to promote a "human rights culture" to the public. In other countries, in other parts of the UK and in related subject areas (racial equality, equal opportunities and disability), independent commissions do exist or are about to be created which fulfil the promotional and educational role. Mainstreaming the culture of rights and responsibilities in the whole domain of civil society is a task which most of those who support the effort to establish such a culture believe would be more likely to prosper under the direction and inspiration of those who are not tied by the political concerns and conflicting, often short-term, demands of government. And as the human rights commissioners we met in Australia reminded us, an independent commission could act as a beacon and rallying point in times when commitment to fundamental human rights values was weak or under attack—whether from within or without government. That is essentially the starting point for investigating the case for a human rights commission, which we now go on to examine in some detail.

14   Unlike in some other statutory contexts, "public authority" is not defined in detail in the Act-section 6(3) defines it as any court or tribunal, or any body or person "certain of whose functions are functions of a public nature". This flexible definition has already resulted in some controversial decisions in the courts. Back

15   The Act provides that these rights have effect subject to: Article 16 of the ECHR (the rights of aliens to freedom of expression, freedom of peaceful assembly and association, and freedom from discrimination may be restricted by the State, as long as other rights are respected); Article 17 (nothing in the ECHR permits any State, group or person to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms under the ECHR or at their limitation to a greater extent than is provided for in the ECHR itself); and Article 18 (restrictions to rights and freedoms which are permitted under the ECHR must not be applied for any purpose other than those for which they have been prescribed); as well as any designated derogation and any designated reservation. Back

16   Emily Holzhausen, Carers UK, 24 January 2003 Back

17   Amnesty International, Twenty-second Report, Session 2001-02, op cit, Ev 128 Back

18   Help the Aged, Ev 315 Back

19   Children's Society, Twenty-second Report, Session 2001-02, op cit, Ev 205 Back

20   Twenty-second Report, Session 2001-02, op cit, Q 368 Back

21   For example, the Labour Party's 1996 policy paper, Bringing Rights Home, concluded: "We aim to change the relationship between the state and the citizen ... By increasing the stake which citizens have in society through a stronger constitutional framework of civil and political rights, we also encourage them to better fulfil their responsibilities ... The new Act will improve awareness of human rights issues throughout our society ... As the experience of the new legislation develops it will nurture a culture of understanding of rights and responsibilities at all levels in our society ... ". Back

22   Building on a Human Rights Culture, Home Secretary Jack Straw address to Civil Service College, 9 December 1999 Back

23   In the White Paper, Secure Borders, Safe Haven, Integration with Diversity in Modern Britain, (2002) Cm 5387, paras 2.2-2.3 Back

24   See Minutes of evidence taken before the Committee on 21 March 2002, HL Paper 103-i/HC 719-i, Ev 5 Back

25   ibid Back

26   Michael Wills, at the time Minister with responsibility for human rights in the Lord Chancellor's Department; ibid, Q 13 Back

27   Mr Sam Budu, Twenty-second Report, Session 2001-02, op cit, Ev 230 Back

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2003
Prepared 19 March 2003