The Case for and against a Commission
69. The BIHR reported overwhelming support for a
commission in the voluntary sector.
In the written submissions in response to our predecessors' call
for evidence, only two bodies
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 constitutionthe 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 stateit
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
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".
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 goalsgoals which for the most part are not controversial
between the parties (though the means of achieving them may be
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 proceduresthe 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 societyagain
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
80. We also believe a commission could make a
positive contribution to achieving its vision of a new relationship
between the citizen and the statea 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
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
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.
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.
84. We would hope that the decision to establish
a new equality body represents a fundamental change in the approach
to the promotion of equalitya 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 centrefrom Whitehall. There is no doubt that great
energy was applied within Government in the lead up to the Human
Rights Act coming into effect.
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.
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
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
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.
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
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
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.
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.
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 slowingin 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 visionto 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
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
A firm of solicitors and the Association of Chief Police Officers Back
Twenty-second Report, Session 2001-02, op cit, Ev 150 Back
HL Deb., 3 November 1997, c. 1234 Back
Twenty-second Report, Session 2001-02, op cit, Q 357 Back
DRC Response to Making it Happen, February 2003, para
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
Whitehall and the Human Rights Act 1998: The First Year,
Jeremy Croft, The Constitution Unit , March 2002 Back
Minutes of Evidence taken before the Committee on 21 March 2002,
HL Paper 103-i/HC 719-i, Q 16 Back
Legal Action Group, Twenty-second Report, Session 2001-02, op
cit, Ev 196 Back
National Association of Citizens Advice Bureaux, Twenty-second
Report, Session 2001-02, op cit, Ev 196 Back
Bar Council and Law Society, Twenty-second Report, Session 2001-02,
op cit, Ev 149 Back