Joint Committee On Human Rights Sixth Report

The Case for and against a Commission

69. The BIHR reported overwhelming support for a commission in the voluntary sector.[69] In the written submissions in response to our predecessors' call for evidence, only two bodies[70] argued against the establishment of a commission, and even then in fairly muted terms, with the suggestion that the question should be deferred until the Human Rights Act had had more time to "bed down". But no-one has come forward to us with the thesis that the establishment of a commission would positively hinder the development of a culture of human rights, nor that such a culture would be undesirable. We have done our best to tap every interested source for information. On our international visits we heard from those who were sceptical about the effectiveness of their national human rights institutions, but none of them advocated abolition. There are a number of arguments against establishing a commission which do, however, need to be addressed, even if we can only do so hypothetically.

Would a Commission be Unconstitutional?

70. There are those who might oppose a human rights commission because they oppose either the very notion of human rights or (a more widely expressed position) the idea of making those rights justiciable. There are well-rehearsed arguments, which went through a crescendo in the run up to the passing of the Human Rights Act and have continued to be heard since, against the concept of justiciable rights as represented by the Human Rights Act and the European Convention on Human Rights. These have tended to circle around the appropriate functions of the courts and the elected legislature in our constitutional arrangements, or the appropriate relationship between national and supranational levels of law, or the perceived clash between the protection of individual rights and the advancement of group rights. Clearly those who oppose the concept of human rights will never be persuaded of the case for a commission. But the case for a human rights commission does not, in our view, depend on the justiciable nature of the ECHR or its incorporation into domestic law. Those who advocate respect for human rights but disagree with making those rights justiciable could properly support the idea of an independent body to assist, through education and other measures, the process of improving respect for human rights without recourse to litigation.

71. There are those who might argue that a commission would usurp the proper functions of some or all of the three parts of the constitution—the executive, Parliament and the courts, particularly the latter two. Such objections would carry weight if it were proposed to give the commission extensive regulatory, adjudicative or coercive powers, which were to be exercised without a process of accountability. This is not what we propose, and we explore both the powers and the accountability of a commission in some detail below.

72. There are those who might oppose the creation of any new public body as a matter of principle, on the grounds that any further extension of the state would be undesirable. Insofar as such principled objections were based on a philosophical resistance to the growth of government, we believe they would be misguided. In our view, a human rights commission should be regarded as part of the mechanism for protecting the rights of the individual against the misuse of the powers of the state—it would have failed were it to be seen as an instrument of the Government.

Would a Commission duplicate the Work of the JCHR?

73. In the written evidence received in response to our predecessors' call for evidence, the majority of respondents agreed that a human rights commission and this Committee should collaborate closely with each other whilst maintaining varying remits and independent structures. The Bar Council and Law Society summed up the views of most respondents when they said—

... [t]he human rights commission should have a much more outward-facing role in the context of protecting and promoting human rights ¼ an essential part of this role would be to submit evidence to the JCHR on relevant issues, including those relating to the scrutiny of particular areas of governmental activity or of individual legislative proposals.[71]

74. It was suggested at Second Reading of the Human Rights Bill in the Lords that the functions of this Committee might include "public education and consultation" and "promotion of a human rights culture".[72] These roles have been carried out so far by the Home Office, the Human Rights Task Force and presently NGOs and the Human Rights Unit of the Lord Chancellor's Department. Public education and the promotion of any particular culture are not roles to which select committees are well suited by their composition, powers or resources; and it would arguably be inappropriate for a committee to try to take them on if it would potentially cloud the independence of judgement that is fundamental to its scrutiny role. Our experience over some two years of operation have confirmed us in this view: this Committee is neither constituted to take on such roles or sufficiently resourced to do so. The existence of the Joint Committee on Human Rights is no substitute for the establishment of a human rights commission. However, we believe there is scope for a fruitful relationship between the JCHR and any human rights commission, and we return to this subject later.

Would a Commission be a burden?

75. There are those who might argue that there is nothing a commission would add to the present institutional structures, and that it would be either ineffective or simply create a burden on public authorities for no real purpose. We have discussed above our reading of the evidence of an unmet need for a more vigorous promotion and protection of human rights. We conclude that there is a need that is not adequately met.

76. We also believe there are good reasons why any government should support the establishment of a commission, as having the potential to make a positive contribution to its wider policy goals—goals which for the most part are not controversial between the parties (though the means of achieving them may be so).

77. There will be occasions when the Government finds that its view on where the balance should be struck between the rights of individuals and the needs of the state is not accepted. It will find its decisions challenged in court by individuals. It may fear that an independent body charged with promoting human rights would increase the risk of further challenges if it brought about an increased awareness of individual rights and supported contentious cases. But we believe that a commission, if it was being effective, would not take a purely oppositionist stand to the state. There may be occasions when it could be helpful for the Government to be able to refer difficult issues to such a body for advice, when an immediate solution to conflicting rights is not apparent; or to ask it to conduct an inquiry where there is evidence of a systemic problem requiring investigation.

78. We believe a commission could reduce avoidable litigation against public authorities rather than encourage it. Potential Human Rights Act cases could be avoided if the public bodies in question mainstreamed human rights thinking into their policies and procedures—the goal of Government policy. To the extent that a commission's role would be promotion of good practice and hence prevention, Government could be a net beneficiary. Litigation is expensive, and public bodies and the central government that funds them should avoid that waste of public money. On simple grounds of economy, the Government should be prepared to look positively at the idea of a commission.

79. In the context of wider social goals, we believe that a statutory body promoting human rights could help governments deliver on some of their key priorities, in some cases supplementing the work of other agencies which are struggling to deliver outcomes which are closely related to the human rights agenda. Promoting human rights and responsibilities as core values could contribute to the development of cohesion in an increasingly diverse society—again one of Government's declared goals, shared across the political spectrum. Promoting human rights within health and social care could, for example, help deliver the rise in care standards to which all parties are committed. A Government should be able to look on a commission as a partner (although an independent and when necessary critical one) which can help it achieve some of its more fundamental goals, bringing it solutions, not just problems.

80. We also believe a commission could make a positive contribution to achieving its vision of a new relationship between the citizen and the state—a relationship that could be to the benefit of both parties. Ministers have tended to stress that their vision is of creating a culture of rights and responsibilities. We do recognise that this phrase is trying to capture an important point about the reciprocal nature of the social contract. That should include the relations between people who receive services from the state and those engaged in the often very challenging task of providing those services. Leaving the implementation of a human rights culture exclusively to the courts will do little or nothing to advance progress towards this goal.

81. Avoiding waste and inefficiency are concerns to be taken into account in looking at the case for a commission. But we consider them primarily to be factors which have to be guarded against in the design of an independent commission, rather than decisive arguments of principle. We will return to them when we consider the accountability of a commission.

Do we need to wait and see?

82. The only identifiable group of doubters argue that we should "wait and see" what happens in the wake of the Human Rights Act coming into effect before making any decision about a commission. We acknowledge that there is a good argument to be made for this position. It is right to want to be sure that a commission is established to meet a need rather than to create one. However we believe there are three important factors which go against further delay.

A new paradigm?

83. The first argument against further delay is the decision of the Government, taken in May 2002, to move in the longer term towards a single equalities body, bringing together in some form the functions of the existing equality commissions for race, gender and disability, and taking on responsibility for the three new "strands" of equality relating to age, religious profession or belief and sexual orientation. When the Chairs of the three equality commissions appeared before us in July 2002, the then Chairman of the Commission for Racial Equality asked, rhetorically—

Is this an exercise that Government is embarking on to tidy up the anomalies which exist, or is it meant to be a more radical review of modern 21st century Britain where we are fundamentally looking at equalities in a more strategic way, and also looking at human rights and the new strands that are emerging?

and answered his own question by saying—

... we should be ... taking a more radical look at how we most effectively deliver the human rights agenda on the one hand and an equality agenda at the other end, and at how the two fuse together.[73]

In its response to the Government's consultation on the proposed single equality body, the Disability Rights Commission made a similar point—

The debate on a SEB also provides an opportunity to consider more deeply how to build on the effectiveness of the existing legislative framework and paradigm it reflects. The framework dates from the 1970s and, despite its achievements, has significant drawbacks. While enabling individuals to seek legal redress on a post-hoc basis, the legislation has proved in practice relatively weak in terms of preventing discrimination in advance at corporate or sectoral level, and of positive pursuit of rights as distinct from achieving equal treatment (the latter allows for example harmonising of treatment downwards as well as upwards). There is a strong case for an arrangement whereby a SEB could enforce and promote the effective operation of the Human Rights Act particularly on matters directly connected with one or more of the six strands.[74]

84. We would hope that the decision to establish a new equality body represents a fundamental change in the approach to the promotion of equality—a fundamental aspect of human rights. It has altered the landscape in which our inquiry is taking place. The decision to reorganise the institutional arrangements for the promotion of equality has made it an urgent necessity to consider the institutional arrangements for the promotion and protection of human rights more generally. The Government's decision in principle to establish a new equality commission, which will have to consider human rights issues in the context of its own work, makes it necessary for the Government to now resolve the question of a human rights commission. We consider the implications of the decision to create a new equality body for the case for a human rights commission in some detail below.

Willing the means?

85. We have considered the extent to which the spread of a culture of human rights is being effectively driven from the centre—from Whitehall. There is no doubt that great energy was applied within Government in the lead up to the Human Rights Act coming into effect.[75] However, when the Constitution Unit reviewed progress a year after the Act had come into effect, it already detected a loss of momentum. Its review concluded—

The tide within Government was ebbing fast against human rights at the end of 2001. It can only be guessed at how hard the LCD had to work simply to stand still and prevent erosion of the work already undertaken in the human rights field. However, preserving the status quo is unlikely to be recognised as much of an achievement by the demanding audiences outside Government ... If the momentum is to be recaptured, there is still a need for an active centre of knowledge which can act as champion and guardian to steer and monitor implementation of the HRA and ECHR.[76]

86. The Human Rights Unit, now located within the Lord Chancellor's Department, makes valiant efforts, we have no doubt, to sustain the momentum of the rolling-out of a human rights culture. But it comprises fewer than a dozen staff. What it can achieve is necessarily limited by resources. It is also limited by being within Government, working within the constraints of the Whitehall departmental culture and within the constitutional constraints of the civil service.

87. Leaving the task of promoting a culture of human rights to central government would therefore be a mistake for a number of important reasons. First, a national human rights institution needs to be independent of government and seen to be so. Only then can it expect to establish itself as an impartial upholder of rights which are essentially designed to mediate the relationship between the state and those who live under its protection. It has, when necessary, to be able to criticise the Government. It needs to have a clear and distinct identity, and to be able not only to provide a home for the promotion and protection of human rights but also to offer consistent and focussed leadership. It also needs the opportunity, time and resources to build its own internal culture as well as to make an impact on the wider national culture. A civil service department cannot do any of this.

88. Since the Government is serious about developing a culture of respect for human rights it has a duty of leadership. If it wills the end, it must also will the means. Precious time has already passed. The question is whether the means to achieve the ambition are in place. We do not believe they are. An independent commission could provide those means.

Proving a need?

89. The third argument against further delay is that proving a need is necessarily going to involve a large degree of judgement. In March 2002 we took evidence on the work of the Lord Chancellor's Department's Human Rights Unit. We tried to discover how it measured its progress in spreading a culture of human rights. The Minister then responsible for the Unit, told us—

What we cannot measure, which I think is the most precious output of all, is a healthier, more harmonious society, where people are living more happily and more harmoniously together. We will know if that has been achieved. I will not be able to come to you in five years, if I am still here, and say, all this progress, which we will be able to measure in various ways, is due to the Human Rights Act and our activities in implementing it ... we may not be able to measure it precisely, but you will know it and in a sense this is a very valuable role, I would suggest, for this Committee. You are one of the measurers of this. You will know from your own experience how far this is taking place.[77]

By those standards, we judge that there is still a long way to go in establishing the culture of respect for human rights, and the momentum from the Human Rights Act is ebbing. If it is not revived, the loss will detract from or adversely affect the conduct and performance of public services, and consequently the well-being of those who use them.

Is the case for a commission made?

90. We said in our interim report that we wanted to know what difference a commission could make to the lives of citizens of the UK, especially those who do not presently enjoy their full human rights. The principal tasks for any commission are to raise levels of awareness of the wider implications of human rights within public authorities and amongst the public, and to increase awareness both of what remedies are available for breaches and how such breaches might be avoided in the first place.

91. As witnesses told us—

We believe that the policy, information and education functions of a Commission would be central to its role, and would in time to help to create a genuine culture of human rights in this country. Within such a culture, human rights would be respected as a matter of course and there would be far less need for the courts to intervene in disputes between public bodies and the individual. This would represent a significant saving of public funds, arguably allowing the Commission to pay for itself in due course.[78]

Whilst the Human Rights Act 1998 obviously allows challenges to be made against behaviour which contravenes the Act, a Commission could have the valuable role of working to prevent such breaches in the first place.[79]

92. We have tried to establish whether people who are in settings where their human rights particularly need protection by public authorities are failing to receive the protection on a reliable basis, because of ignorance, incompetence, or a lack of resources on the part of public authorities. Though it is impossible to measure the full extent of the problem, we believe the evidence we have amassed, particularly that from the BIHR, suggests that in a very significant number of cases this is happening. We have also received evidence that people whose rights are breached are often currently unable to assert them, either because of ignorance or because of a shortage of available expertise, support or funds on their part. We conclude that by arranging advice, conciliation, mediation and possibly assistance (in limited cases) with bringing action in the courts, a human rights commission would be an effective and efficient way of providing such help.

93. We have found evidence that there is an unmet need for citizens to be assisted in understanding what their rights are, how these rights must be balanced with those of others, and how to assert their rights without necessarily having recourse to litigation. A commission could meet those needs.

94. We set out to discover whether there was evidence that people in the UK are aware of the Human Rights Act and its implications. Such evidence is difficult to come by in any quantitative way. But we do not find evidence of the rapid development of awareness of a culture of respect for human rights and its implications throughout society, and what awareness there is often appears partial or ill-informed. Indeed, we fear that the most recent highwater mark of this culture was between the passing of the Human Rights Act and its coming into effect— in the two years since the Act was brought into effect, the evidence we have gathered suggests the culture may actually have been in retreat. We conclude the resources devoted to this task within Government are insufficient to achieve the goal that the Government desires. We conclude that a commission would be both an effective and an efficient way of developing public awareness.

95. We also set out to discover whether the evidence of the impact of the Human Rights Act on public authorities suggested the growth of a human rights culture within them. The evidence of our research into local and health authorities, the research of the BIHR into the voluntary sector bodies who help those who are helped (or hindered) by these authorities, and the evidence of those who inspect or regulate these authorities, all point to a disappointing level of awareness of the implications of the Act for the positive obligations which these bodies should recognise it as being their duty to discharge. As one witness put it—

The promotional functions will, it is hoped, assist public authorities to develop best practice in a manner which is consistent across the country ... Respect for human rights is best fostered in this way, rather than by the piece-meal, costly and unreliable route of development of human rights through litigation. Indeed, the promotion of good human rights practice and an understanding of human rights principles is one of the best ways of avoiding costly and misconceived litigation.[80]

The culture of human rights has yet to be internalised within public authorities or their inspectorates. More worryingly perhaps, the momentum to develop this culture appears to us to be slowing—in some areas to a standstill.

96. We conclude that a commission would give human rights a focus, resources and a degree of institutional stability not found recently in central government. This would provide a base from which there might be a realistic chance of devising and disseminating a more credible culture of respect for human rights in public authorities.

97. We do not detect, by and large, a positive hostility within public authorities towards a commission, but we equally detect no strong sense that they have need for one. But this view seems to stem from their belief that they have taken the necessary steps to comply with the Act and that the likelihood of successful challenge is corresponding small. As a consequence, most public authorities appear oblivious to the notion of using human rights as a tool for good practice and high standards in serving the community. Above all, a human rights commission is needed to provide the vision—to take on the task of convincing busy and overworked public authorities that human rights are important, and that a culture of respect for human rights means something which is worth fighting for.

98. A commission could undertake much of the dissemination and monitoring of human rights with respect to public authorities which is not happening, and shows no likelihood of happening, under the existing arrangements within Government. We believe this work needs to be done. We conclude that in the absence of a human rights commission it will not be done well, or possibly it will not be done at all.

99. We are persuaded that sufficient unmet needs have been identified for there to be work for a commission to do. The development of a culture of respect for human rights in Great Britain is in danger of stalling, and there is an urgent need for the momentum to be revived and the project driven forward. A culture of respect for human rights cannot be developed through the courts alone and it cannot be developed solely by an agency within Government. We believe an independent commission would be the most effective way of achieving the shared aim of bringing about a culture of respect for human rights. Our advice is that such a commission should be established.

100. We now consider what powers and functions a commission would require to meet the needs we have identified.

69   Something for Everyone, pp 77-79 Back

70   A firm of solicitors and the Association of Chief Police Officers Back

71   Twenty-second Report, Session 2001-02, op cit, Ev 150 Back

72   HL Deb., 3 November 1997, c. 1234 Back

73   Twenty-second Report, Session 2001-02, op cit, Q 357 Back

74   DRC Response to Making it Happen, February 2003, para 3.6 Back

75   Much of this was well, and independently, documented by the Constitution Unit in its 2000 report, Whitehall and the Human Rights Act 1998, Jeremy Croft, The Constitution Unit, 2000 Back

76   Whitehall and the Human Rights Act 1998: The First Year, Jeremy Croft, The Constitution Unit , March 2002 Back

77   Minutes of Evidence taken before the Committee on 21 March 2002, HL Paper 103-i/HC 719-i, Q 16 Back

78   Legal Action Group, Twenty-second Report, Session 2001-02, op cit, Ev 196 Back

79   National Association of Citizens Advice Bureaux, Twenty-second Report, Session 2001-02, op cit, Ev 196 Back

80   Bar Council and Law Society, Twenty-second Report, Session 2001-02, op cit, Ev 149 Back

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