Joint Committee On Human Rights Sixth Report


The Promotion and Protection of Human Rights

101. The BIHR report gathered some views from the voluntary sector on what a commission might need to do. We quote a few—

Raising a banner about what constitutes an abuse of human rights, generally, for the general public, and also for Local Authorities, and I suppose ... identifying test cases and running those. To be a sort of regulatory type body, to try and enforce and to promote human rights. (Sarah King, Maternity Alliance)

The Commission needs to be seen as impartial, objective and independent. It could play an important educative and advisory role ... There are pros and cons for the Commission itself taking individual cases. (Elaine Kay, Disability Law Service)

I would like there to be an intelligent and responsive body that is responsible for enforcement, and there is this relationship between enforcement and if you like, education and awareness raising and promotion. (Sandy Buchan, Refugee Action)

To be a source of information, to talk to people about what the Human Rights Act is, and what it does, as well as researching its implementation. It would need to be independent, it would need to have teeth, good funding, and a clear set of terms of reference. (Emily Holzhausen, Carers UK)

I don't think that you can have either promotion or enforcement, I think you need both. I think that a Human Rights commission would need to be able to advise members of the public, need to be able to advise organisations like ours, which might be supporting members of the public. It would need to be able to advise service providers, and so on ... (Tessa Harding, Help the Aged)

In terms of publications it would be very useful if there were to be guides to good practice ... They make systemic an individual case, and as much as anything that's about information provision. Otherwise a case changes a local situation, but it doesn't change for everyone. (Rowena Daw, MIND)

Education and training is one of the most valuable things that there can be ... I would like to see a Commission that actually did promote the concepts and culture of equality and rights ... although there is an issue about a Commission being able to take cases forward, I think there is also a huge issue for people being able to access advice, people being able to access information. (Gary Fitzgerald, Action on Elder Abuse)

 ... Promoting the understanding of it on a general level, on a specific level, within specific government departments, an understanding of how the Act works—but also taking cases, at least test cases. (Alisdair McKenzie, Asylum Aid)

Mediation could work, either in individual cases or where there is a general issue—for example the police treating young people as a problem and not seeing their human rights—you could see different perspectives through mediation. It could also produce materials for the citizenship agenda in schools, giving teachers the confidence to deliver this part of the curriculum. It needs to be inspiring and to allow children to participate. (Keith Harrison, Article 12).[81]

102. The evidence we have gathered suggests the existence of unmet needs which can be broadly broken down into two categories. In the first category there is seen to be a need for the "protection" of human rights: that is the establishment of reactive arrangements which provide or enhance mechanisms to assist in obtaining redress or relief for those whose rights have been violated or are threatened—whether through the courts or otherwise.

103. The other kind of need which was identified, and the one which appears to enjoy the most urgent support from advocates of a commission, is for the "promotion" of human rights—that is the active nurturing of a culture in which violations of rights are not so much to be redressed but to be avoided, and in which deprivations are pre-empted or ameliorated. The goal is a situation where the institutions of the public sector and the individuals who work in them see it as their duty to act in a way which respects the rights of individuals and recognises their rights to equal consideration and dignity, and in which public authorities encourage and welcome a positive assertion of those rights by those whom they serve, protect or look after.

104. These two categories of need are not divisible into entirely distinct concepts (in fact they complement each other), but they provide one useful way of distinguishing the functions a commission will need to perform. We start from the position that the powers given to any commission should flow directly from the functions it is required to perform. Its powers should be sufficient for it to do its work, but no more extensive than is necessary. As we have also made clear, we do not envisage creating a body which is principally adversarial and litigious in nature.

105. The majority of those who responded to our predecessors' call for evidence supported the following functions and powers for a human rights commission—

  • establishing educational programmes and conducting research in the field of human rights;

  • holding inquiries into alleged human rights abuses;

  • making submissions to international bodies on international human rights obligations of the UK, and scrutiny of UK reports under international instruments;

  • the scrutiny of existing law and practice and of proposed legislation for compatibility;

  • the legal enforcement of human rights by way of test cases, third party interventions and the submission of amicus briefs to the court in proceedings of public interest.

We examine these in turn.

Promoting Rights

106. There is no dispute that a commission must have a duty to promote understanding of human rights—to have an educative role. This is seen by most of our witnesses as the core function and most urgent necessity, to restore momentum to the programme of spreading a culture of human rights. The majority of those who responded to our predecessors' call for evidence believed the commission should conduct public inquiries, promote and stimulate debate on human rights issues of public concern and act as a vital interface between the various groups that engage with human rights protection. All the human rights commissions we have visited have laid great emphasis on their educational and promotional role. This educative function can potentially be directed towards a number of different audiences, and it will in the end be for the commission to decide on its priorities.


107. Although there will be room for a general consciousness-raising function, aimed at the general public (on the lines of those we have sometimes seen coming from the equality commissions), we are not convinced that this should be the highest priority, given the expense and the relatively diffuse effect of such campaigns, the outcomes of which are notoriously difficult to measure.

108. The more immediate need, we believe, will be to work through existing mechanisms, with the aim of mainstreaming human rights into the ways of thinking of public authorities, and achieving a cascade effect. In particular, it will need to work with the already existing plethora of quality inspectorates in the public sector, in the fields of criminal justice, health, education, social services and local authorities. It will also need to work with the curriculum bodies in spreading its message to young people.

Advice and Assistance

109. Any Commission will clearly have to receive and deal with individual complaints in some way, and we discuss this in more detail below, in particular whether there should be a litigation function and arrangements for conciliation and mediation opportunities. But first we need to consider how a commission, if it is not itself to have any adjudicative function, might help citizens who come to it with complaints that their rights are being violated or threatened.

110. On the advice side it may choose to provide this service through building networks with existing advice organisations, and possibly being empowered to fund these. In essence, the unmet need we are addressing here is the inadequate understanding of what people's rights are amongst those to whom people might turn for help (solicitors, advice bureaux, advocacy groups and so forth). We were told—

¼ members of the public ¼ contact us in the hope of obtaining legal advice ¼anecdotal evidence from these telephone calls, letters and e-mails suggests that there is wide-scale misunderstanding about the nature of the rights and responsibilities incorporated through the HRA. This seems to be because the HRA is being viewed as a "cure-all" for intractable legal problems and also because "human rights" are sometimes thought to have subsumed or replaced the existing statutory framework of rights. In our view, there is also very little public understanding of the framework of responsibilities which the HRA has introduced.[82]

The AIRE Centre's experience from its advice line is that whilst public awareness of human rights in general has increased with the implementation of the Human Rights Act 1998, understanding has not. Indeed due to misleading media coverage as well as at times poor legal advice, it is [our] experience that the public in general has a very poor understanding of the implications of the Human Rights Act for them and also of applicability of specific provisions to their case.[83]

 The BIHR report, Something for Everyone, established a clear deficit in the access to high quality advice for the average citizen—

Participants in the research indicated that there was a lack of client awareness of the Human Rights Act, even two years after it came into force. Those clients who are aware of the Act have quite unrealistic expectations of what it might achieve, or a misguided understanding of its contents which is perhaps understandable given that there has been very little promotional activity which has targeted the general public ... It is clear ... that there has not been a significant level of systemic change, using the Act as a framework for good practice. Instead, individuals are still relying on cases, with a cost to service providers in terms of time, money, and reputational risk.[84]

111. The Northern Ireland Human Rights Commission, the UK equality agencies, the Bar Council, the Law Society, and a number of prominent NGOs,[85] stressed the need for an independent commission to provide advice and assistance to individuals who claim to be victims of human rights violations. The Commission for Racial Equality noted that—

It is our experience that providing advice and assistance to victims of racial discrimination has been a valuable tool in combatting racial discrimination, promoting wider understanding of the legislation and securing changes in culture.[86]

However, Liberty believed that—

... the Commission would be swamped with calls for help ... We suggest that this service needs to be provided instead by the advice sector and lawyers in private practice¼ The Human Rights Commission would be better placed to encourage others to provide such services and to try to promote the best possible standards of advice given on human rights.[87]

Similarly, the Institute for Public Policy Research commented that—

... [w]e do not envisage the Human Rights Commission having the resources to provide legal advice to all those who may feel their rights have been infringed ... we feel it more appropriate that the Commission should see its role as promoting expertise throughout the advice sector, and to refer individuals to those equipped to provide the advice they need. Where it judges it to be in the public interest, the Commission should have the means to support an individual in taking proceedings, as the Commission for Racial Equality and Equal Opportunities Commission may do, and to be able to initiate proceedings in its own name.[88]

112. In particular this work should spread the message that a culture of respect for human rights would not automatically give priority to individual rights above all other considerations. Rather, the Act should be seen as providing a framework in which the rights of the individual, for instance to privacy, can be balanced against the rights of others or of society as a whole, for instance to protection from crime. This balancing of rights is a crucial concept in understanding what a human rights commission might have to offer in terms of helping to build a "culture of rights and responsibilities".

113. We believe a commission would have an important and valuable role to play in improving the quality of understanding of human rights issues in the voluntary and professional advice sectors. It should be able to do this through funding education and research, and funding the development and provision of advice services provided in the voluntary sector rather than to undertake such advice functions directly itself.

International obligations

114. The majority of those who responded to our predecessors' call for evidence suggested that a commission should be able to refer to the wider international obligations binding on the UK as well as Convention rights—an approach we have adopted in our own work.[89]

115. As we have noted above, Convention rights do not provide an exhaustive definition of the human rights provisions relevant to the UK. The UK is signatory to a large number of international conventions, covenants and other treaties which, although not directly justiciable in the UK courts, or (at least at present[90]) subject to determination in individual cases by bodies like the European Court of Human Rights, impose certain obligations on the UK Government in international law.[91] Unlike the European Convention on Human Rights, these Covenants and Conventions have not been incorporated directly into UK law,[92] and therefore do not give rise to legal rights and obligations which can be directly enforced in the domestic courts. It is perhaps worth stressing that we are not proposing any adjudicative function for a commission in respect of these instruments, and alleged violations of the rights they protect. They provide internationally agreed yardsticks and benchmarks against which to judge the actions of the state.

116. As the UK has not as yet accepted rights of individual petition under any of the UN instruments, and since the rights in the UN treaties do not take any direct effect in UK national law, the examination of the UK's periodic reports to the different UN Committees appointed under the different treaties is the primary tool of implementation for these treaties as regards the UK. We consider that the existence of a wider spread of independent human rights institutions in the UK would contribute greatly to the process of monitoring the Government's performance against the obligations it has entered into by ratifying these treaties, and contributing to the promotion of awareness of the rights these instruments embody.

117. As a Committee, we have already begun a process of scrutinising the reports of the UK under these conventions and covenants and the observations of the UN committees on them, beginning with the UN Convention on the Rights of the Child. While this Committee should continue to be involved in the process, we believe the scrutiny, and perhaps more importantly the follow-up, which could be provided by an independent commission, seen both by government and pressure groups as an honest broker, would bring a more systematic, detailed and sustained quality to this work. Our experience suggests that there is ample opportunity for fruitful collaboration in the future between us and an independent commission in this monitoring process.

118. Involvement in the reporting processes under the various international human rights instruments would be a valuable function of any human rights commission. We would hope that a commission would also raise awareness of the international instruments more generally, and use them in its work in developing a culture of respect for human rights.

Public Inquiries

119. There is a particular gap in protection of rights where an institutional culture of non-compliance appears to exist in public sector organisations. We have asked ourselves whether the commission we propose should have the function of conducting public inquiries into questions of public policy engaging human rights, on its own initiative, and what powers might be necessary to make this role effective.

120. In India the National Human Rights Commission chooses inquiry subjects itself rather than at the behest of government, often in reaction to the nature and volume of the complaints they receive. It has conducted a range of inquiries into subjects both of a thematic nature, for example human trafficking, or relating to regional problems, for example inter-communal violence in Gujurat. Although when the Commission produces a report neither the Government nor the Parliament are obliged to act, the human rights community in India did believe they initiated public debate and engaged political attention. In relation to human trafficking, the Commission was also engaged in a substantial amount of follow-up educational work with the judiciary, police, NGOs and relevant Government departments. The recommendations of another public inquiry carried out into police corruption had not yet been implemented, but the Chairman of the Commission told us, "We are making a dent".

121. In Australia, the Human Rights and Equal Opportunities Commission has carried out several influential, and indeed controversial, public inquiries. In particular, its report Bringing them Home: The Stolen Children Report (on Aborigine children removed from their families) did much to create a national debate, to the discomfort of some in the government. The Commission chooses inquiry subjects on its own initiative according to both the level of complaints on a particular subject and also tapping into concerns brought to them by NGOs and other pressure groups. The Attorney General also has the power to ask them to carry out an inquiry into a particular subject, which he has used in relation to such matters as harassment in the workplace and pregnancy in the workplace. The findings had not always been comfortable for the government, even on the topics it had chosen itself. The NGOs we heard from in Australia were very conscious that the powers the Commission had when carrying out its inquiries meant it could get much more done than they were able to achieve alone. Just a decision of the Commission to initiate an inquiry brought a subject much higher up the political agenda. We were told, for example, that its current inquiry into children in detention was already producing changes in practice.

122. In New Zealand the Government can ask the Human Rights Commission to carry out an inquiry into a certain subject, but they do not provide extra funds when they do. So far, the Government has only exercised this power in relation to its request to the Commission to prepare a National Plan of Action on human rights. Some members of the Justice and Electoral Committee (our approximate opposite numbers in the New Zealand Parliament) felt the Commission could use its public inquiry function more, and that it concentrated too much on individual complaints rather than broad issues of principle.

123. The South African Human Rights Commission has considerable powers to conduct inquiries and has carried out a number of these that have been controversial and attracted media attention. Its choice of inquiries has not always been welcomed (for example, with regard to its examination of race in relation to the media), but as in other countries, it is these high profile public campaigns where a commission will attract most attention and where it most likely to be judged and scrutinised closely.

124. In Northern Ireland, the Human Rights Commission has power both to publish research reports on issues of concern, and to conduct investigations, on its own initiative.[93] Formal investigations are conducted, in accordance with the Commission's own investigative criteria, where there are allegations of a pattern of abuse of human rights or where a serious human rights abuse is alleged to have occurred. To date, the Commission has completed one full investigation, into the rights of children in custody.[94] The Commission has found however that its lack of any investigatory powers, and in particular its inability to compel the production of evidence, has hampered the effectiveness of its investigations.[95]

125. The Scottish Executive proposes in its consultation paper that a Scottish Human Rights Commission should have the power to undertake inquiries into generic or sectoral human rights issues in relation to public policy, reinforced with powers of access to information based on those of the Scottish Public Services Ombudsman. It proposes that the Commission would be required to publish a report following each inquiry, and that it might consider imposing a duty to respond on the bodies notified by the Commission.[96] The consultation paper does not favour giving either the Scottish Parliament or Executive the power to require the Commission to conduct a particular inquiry.

126. The Irish Human Rights Commission has the power "to conduct enquiries into any relevant matter, whether or its own volition or at the request of any person, with a power to refuse to do so if it considers that the matter could more appropriately be dealt with by means of legal proceedings, or that it is trivial or vexatious, or that any alleged violation of human rights is manifestly unfounded, or that the person making the request has an insufficient interest in the matter concerned"; and for the purpose of an inquiry, the Commission may require the giving of information and the production of documents relevant to the inquiry, and may, if necessary obtain a court order to secure compliance with the requirement.

127. The recent comments of the Council of Europe's Commissioner for Human Rights on the inquiry powers of the Northern Ireland Human Rights Commission are applicable more generally—

The Paris Principles recommend that a national institution should be able to 'hear any person and obtain any information and any documents necessary for assessing situations falling within its competence'. The United Nations Handbook on National Institutions lists in greater detail powers that are fundamental for conducting effective investigations, such as the free access to all documents, including public records, which, in the opinion of the investigative body, are necessary for a proper investigation of the complaint, and the power to compel the production of relevant information ... [the questions that need to be asked about these powers are does] the Commission enjoy, in addition to its advisory role, a mediatory role vis-à-vis the bodies it might wish to investigate, or an exclusively adversarial role, or ... some combination of the two? ... Whilst ... in the latter case, [it would] require significant investigative powers, great care would have to be taken to ensure that the rights of persons appearing before the Commission and the principle of the equality of arms are respected at all times ... An additional guarantee for those appearing before the Commission would be that any information obtained during such proceedings could not subsequently be used in court ... The rights of those appearing before the Commission to legal representation would need to be considered. Care would also need to be taken to clearly define the Commission's investigative powers vis-à-vis different actors, including both different types of public official (one might think, for instance, of Prosecutors, Ombudsmen, Parliamentarians and military personnel, all of whom may have, for different reasons, certain immunities or secrecy obligations) and private individuals, whether acting in a purely private capacity, or assuming typically public functions, and who might, again, have professional secrecy obligations, such as lawyers, doctors, priests, or journalists.[97]

128. We are persuaded that the power to conduct public inquiries on its own initiative would be an essential element of a human rights commission's functions. As international experience indicates, to be effective in this function, the commission would need powers to require the giving of information and documents, and possibly to demand the appearance of witnesses, though the power we would suggest would be limited to an application to the court for appropriate orders to be made. These powers would need to be balanced by the appropriate safeguards outlined by the European Commissioner for Human Rights in the passage quoted above.

129. We are open-minded on the question of whether it should be possible for the Government to mandate the commission to undertake an inquiry—though there could be no objection to its asking for a particular inquiry to be initiated. We hope to consult further on the precise scope of the powers necessary to make a commission's use of this function effective.

Scrutiny of Law and Practice

Legislative Scrutiny

130. In a state that aspires to democracy, human rights can only be fully realized if they are taken as seriously in the law-making processes of the executive and the legislature as they are in the adjudicative work of the courts and tribunals. Under section 19 of the Human Rights Act, every Government Bill is required, on publication, to be prefaced by a statement from the responsible Minister as to whether, in his or her opinion, the provisions of the Bill are compatible with Convention rights.

131. At the beginning of this Parliament, this Committee reaffirmed the decision of our predecessors to make scrutiny of proposed legislation for compliance with Convention rights, and other human rights standards, a priority. In the last Session we reported on all Bills presented to Parliament.[98] In addition we produced reports on a number of draft Bills.

132. On the whole, we consider that this work is best done within Parliament, and we hope that it is work which is done adequately, for the most part, by ourselves. We do not think it necessary to duplicate the work of this Committee by imposing a duty on a commission to conduct parallel scrutiny of legislation. However, we do believe that the value of this process can be enhanced by our ability to take into account as wide a range of opinion on proposed legislation as is possible. We consider that any commission should certainly have the freedom to make submissions on proposed legislation to us, and we hope that a relationship between this Committee and any commission would develop which would encourage it to do so. We detect a developing attention within Government given to the nuances of what is meant by a Minister deciding to make a section 19 statement on a Bill, and an increased awareness in Parliament of this process. If a human rights commission were to produce a similar effect in wider areas of the policy and practice of public authorities, its effect would be to reduce the challenges to Government in the courts, not to increase them.

133. On draft legislation, we would expect the commission to have the right to contribute to any consultation process on either draft Bills or other policy documents such as White and Green Papers, and that government departments would see it as their duty formally to invite submissions from the commission on these matters. This is again an area we see as offering opportunities for fruitful collaboration between this Committee and any commission.

81   Something for Everyone, op cit, pp 80-82 Back

82   Legal Action Group, Twenty-second Report, Session 2001-02, op cit, Ev 195 Back

83   The Aire Centre, ibid., Ev 142 Back

84   Something for Everyone, op cit, p 71 Back

85   Including JUSTICE, Charter 88, Stonewall and the CAJ Back

86   Commission for Racial Equality, Twenty-second Report, Session 2001-02, op cit, Ev 93 Back

87   Liberty, Twenty-second Report, Session 2001-02, op cit, Ev 110 Back

88   IPPR, Twenty-second Report, Session 2001-02, op cit, Ev 134 Back

89   The Scottish Executive has proposed a definition of human rights for its commission that goes beyond those contained in the Human Rights Act, to encompass all international human rights treaties to which the UK is signatory. Back

90   A review of the UK's international human rights obligations is currently being undertaken by the Government under the co-ordination of the LCD. The terms of reference of the review are "to review the UK's position on international human rights instruments in the light of experience of the operation of the Human Rights Act, the availability of existing remedies within the UK, and law and practice in other EU Member States; and to report in Spring 2003." The review encompasses: UK reservations and derogations to UN and Council of Europe human rights instruments and whether they should be maintained; ratification of additional human rights instruments; ratification of additional protocols to the ECHR; and acceptance of the individual complaint procedures under the UN instruments (for example, under the Optional Protocol to the ICCPR). Back

91   The more significant of these instruments are: the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESC), the International Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), the International Convention on the Elimination of all Forms of Racial Discrimination (CERD), the United Nations Convention on the Rights of the Child (UNCRC) and the Convention against Torture and other cruel, inhuman or degrading Treatment or Punishment (UNCAT) and its European equivalent. Back

92   With the partial exception of the UNCAT Back

93   Section 69(8) of the Northern Ireland Act provides that: "For the purpose of exercising its [statutory] functions ... the Commission may conduct such investigations as it considers necessary or expedient.". Back

94   In Our Care: Promoting the Rights of Children in Custody, March 2002 Back

95   Oral evidence of the Northern Ireland Human Rights Commission, 28 November 2002, Q 17. The Commission has reported that it has encountered obstruction from a number of public bodies in the conduct of its investigations. It has recommended amendment of the Northern Ireland Act to afford it powers to compel the production of evidence, and to allow it to have access to places of detention: Report to the Secretary of State required by Section 69(2) of the Northern Ireland Act 1998, P.35-41. Recommendations regarding additional investigatory powers were later withdrawn in the Commission's Briefing Paper Concerning the UK Government's Consultation Paper on the Review of Powers of the NIHRC, July 2002. Back

96   The Scottish Human Rights Commission, The Scottish Executive, February 2003, chapter 5 Back

97   Opinion 2/2002 of The Commissioner For Human Rights, Mr. Alvaro Gil-Robles on certain aspects of the review of powers of the Northern Ireland Human Rights Commission, Strasbourg, 13 November 2002, Comm DH(2002)16, original version in English., paras 29-39. Back

98   First Report, Session 2001-02 Homelessness Bill, HL Paper 30/HC 314; Second Report, Session 2001-02, Anti-Terrorism, Crime and Security Bill, HL Paper 37HC 372; Third Report, Session 2001-02, Proceeds of Crime Bill, HL Paper 43/HC 405; Fourth Report, Session 2001-02, Sex Discrimination (Election Candidates) Bill, HL Paper 44/HC 406; Fifth Report, Session 2001-02, Anti-Terrorism, Crime and Security Bill: Further Report, HL Paper 51/HC 420; Eighth Report, Session 2001-02, Tobacco Advertising and Promotion Bill, HL Paper 59/HC 474; Ninth Report, Session 2001-02 Scrutiny of Bills: Progress Report, HL Paper 60/HC 475; Tenth Report, Session 2001-02, Animal Health Bill, HL Paper 67/HC 542; Eleventh Report, Session 2001-02, Proceeds of Crime Bill, HL Paper 75/HC 596; Twelfth Report, Session 2001-02, Employment Bill, HL Paper 85/HC 645; Thirteenth Report, Session 2001-02, Police Reform Bill, HL Paper 85/HC 645; Fourteenth Report, Session 2001-02, Scrutiny of Bills: Private Members' Bills and Private Bills, HL Paper 93/HC 674; Fifteenth Report, Session 2001-02, Police Reform Bill: Further Report, HL Paper 98/HC 706; Sixteenth Report, Session 2001-02, Scrutiny of Bills: Further Progress Report, HL Paper 113/HC 805; Seventeenth Report, Session 2001-02, Nationality, Immigration and Asylum Bill, HL Paper 132/HC 961; Eighteenth Report, Session 2001-02, Scrutiny of Bills: Further Progress Report, HL Paper 133/HC 962; Twenty-first Report, Session 2001-02, Scrutiny of Bills: Further Progress Report, HL Paper 159/HC 1141; Twenty-third Report, Session 2001-02, Nationality, Immigration and Asylum Bill: Further Report, HL Paper 176/HC 1255; Twenty-fourth Report, Session 2001-02, Adoption and Children Bill: As Amended by the House of Lords on Report, HL Paper 177/HC 979; Twenty-sixth Report, Session 2001-02, Scrutiny of Bills: Final Progress Report, HL Paper 182/HC 1295. Back

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