The Human Rights Act has been in force for a
little over two years. In this brief period, the need to comply
with the Act has become an integral part of the work of public
authorities. The Act has not given birth to a culture of respect
for human rights or made human rights a core activity of public
2.1 Existing position
The system of mainstreaming human
rights has ceased to function for health and local government.
In the Department of Health (DoH) and the Office of the Deputy
Prime Minister (ODPM), no network now exists to disseminate information
on human rights. In the health and local government sectors, this
means there is no meaningful communication between the centre
and public bodies on human rights matters. Human rights also figure
rarely in contacts between regulatory/representative bodies and
health and local government organisations. The one notable exception
is provided by the auditing activities of District Audit which
maintain a strong focus on human rights.
Good human rights practice does exist
in local government but generally in the form of systems established
at the time of the introduction of the Human Rights Act which
are now falling into disuse. Local government adopts a compliance
and risk management approach only to human rights matters. Human
rights play no part in comprehensive performance assessmentthe
main governance tool and focus of local government. Representative
bodiesthe Local Government Association (LGA), Local Government
Information Unit (LGIU), CIPFA etcare not now undertaking
activities on human rights matters. The local government lawyers'
network remains active in a low-key manner.
No evidence has been found to indicate
that human rights are being treated as a core activity in health
organisations. The DoH and key agencies such as the NHS Litigation
Authority and Commission for Health Improvement are offering no
lead on human rights and the ongoing reorganisation of health
services means the subject is largely overlooked at the local
level. Good human rights practice does exist as a matter of professional
ethics and clinical judgement where human rights issues have been
incorporated into guidance on such issues as "informed consent"
and resuscitation policies.
In the social housing sector, there
are powerful policy imperatives (not connected to human rights)
driving Housing Associations/Registered Social Landlords (RSLs),
their representative body (National Housing Federation) and regulator
(Housing Corporation) not to want their activities to be governed
by the HRA. This is prompted by concerns that they will then be
treated as public bodies/bodies with public functions for funding
and regulation purposes. Until the status of Housing Associations
and RSLs under the HRA is conclusively settled, its influence
on the social housing sector will remain more akin to that of
a "code of practice".
The HRA is firmly established with
health, local government and housing lawyers as a compliance issue.
Few public authorities have had to deal with meaningful challenges
under the HRA and ECHR. There are some indications of a small
number of potentially problematic cases being settled rather than
allowing the issue to go to court. Some representative bodies
would advise settling or are prepared to put up resources to contest
problematic cases with service wide implications (if the need
Public authorities do not view human
rights as a priority issue. Compliance with the HRA is not viewed
as a problem by public authoritiesmost have had few cases
or issues to wrestle with. There is a clear understanding of the
need to comply with the HRA/ECHR but little sense of the need
for a human rights culture or culture of respect for human rights
in their work.
Virtually no examples of public authorities
adopting a human rights culture or culture of respect for human
rights in their work (other than in terms of legal compliance)
have been identified. There appears to be no conception, among
public authorities, of what constitutes a human rights culture.
Efforts by the Lord Chancellor's Department (LCD) to disseminate
a "human rights message" are being stifled by deficiencies
in the mainstreaming process. On the credit side, the LCD has
developed and implemented an effective programme of regional human
rights "road shows" to speak directly to public authorities.
2.2 Meeting human rights needs in public
The political will to implement the
HRA and human rights culture in every aspect of public life needs
to be rekindled.
Structures for mainstreaming human
rights need to be rebuilt at the centre (particularly in departments)
if a consistent human rights message is to have a chance of reaching
public authorities. Where possible, the message also needs to
be brought directly to the attention of public authorities through
e-mail alerts, bulletins and road shows. Public authorities cannot
embrace a human rights culture that they do not know about.
Human rights need to be established
as part of comprehensive performance assessment in local government
and in the performance management frameworks governing health
organisations. If it can be done for racial equality it can be
done for human rights.
More use needs to be made of regulatory
bodies to monitor the extent to which public authorities are embracing
human rights. District Audit offers one working blueprint. Another
is offered by the steps now being taken by the Commission for
Health Improvement to look at racial equality in the health care
sector as part of the clinical governance review process.
There are marked contrasts in the
handling of human rights and racial equality matters in public
authorities. Racial equality is being mainstreamed in public authorities;
human rights matters are pigeonholed for the lawyers.
Public authorities have more experience
of dealing with race equality issues and have a clearer grasp
of why such matters need to be addressed and how they should be
tackled in policies, decisions and service delivery. A major driving
force for this is the new public sector "duty to promote"
racial equality contained in the Race Relations (Amendment) Act
2000 and the steps taken by the Commission for Racial Equality
(CRE) to give this practical effect through the implementation
of race equality schemes in public authorities.
By comparison, human rights have
not take root, other than as a compliance issue for the lawyers,
because public authorities are not being encouraged, compelled
or enabled to act in this area. There is no direct instruction
in the HRA or external pressure from supervising departments,
regulators (save District Audit) or the courtroom to cause them
to do this. There is no administrative framework (template) or
guidance reaching public authorities to tell them how this might
be done. And, for all public authorities, there are many other
priorities "closer to home" to crowd out human rights.
This means that many have addressed meeting human rights obligations
as a one off exercise and not an ongoing process.
The Government has made commitments
to extend the public sector "duty to promote" racial
equality to disability and equal opportunities. Forward-looking
public authorities are anticipating this through the preparation
of all embracing equality schemes.
In the longer term, a public sector
duty to promote human rights could be the single most effective
means of establishing human rights as a core concern of public
2.3 What could a "human rights commission"
A human rights commission would give
human rights a home, a degree of stability and a driving force
not found recently in central government. It could devise and
disseminate a more credible "human rights culture" for
A human rights commission could perform
a simple but vital representative function. At the moment, no
one speaks for human rights in the different networks of public
A commission would not remove the
need for mainstreaming of human rights within central Government.
It could not operate behind the closed doors of Whitehall. A commission
could, however, undertake much of the dissemination and monitoring
of human rights with respect to public authorities which is not
happening, and no shows no likelihood of happening, under the
existing arrangements in Government.
Among the most potent tools a "human
rights commission" could exercise with regard to public authorities
to have oversight over a public sector
"duty to promote" human rights and the attendant mechanisms
to give this practical effect in public bodies;
the power to investigate situations
and issues (not just individual cases); and
the power to bring test cases ( where
human rights points would not be discreetly settled).
A public sector "duty to promote"
human rights could be introduced without a human rights commission
though it is questionable whether there would be the will and
commitment to see this through if left to the government machinery.
This situation would compound what might be seen as an original
flaw of the HRA of introducing legislation with a profound impact
on the work of public authorities without a dedicated institution
to advise and monitor how best this should be done.
The development of a statutory "duty
to promote" human rights would be a major task in first setting
the bounds, introducing legislation and then establishing a workable
scheme. The time needed for this process as well as that required
for establishing a human rights commission means these are not
to be regarded as quick fix solutions. The need for a public sector
duty to promote human rights is a proposal that may warrant further
study by a future human rights commission.
In supervising a "duty to promote"
human rights, a human rights commission would have to be able
to work effectively through regulatory and representative bodies
(umbrella bodies) for different sectors of public activity. The
experience and working practices of the existing equality commissions,
indicate that a human rights commission could not be expected
to have the resources and expertise to be able to work directly
with individual public authorities. The CRE, for example, does
not intend to monitor the application of race equality schemes
in individual public authorities. Instead, it will work through
the existing performance management and regulatory networks for
different sectors of public activity.
Public authorities appear to have
no antipathy towards a HRC but also no strong sense that they
have need for one. This view seems to stem from their belief that
they have taken the necessary steps to comply with the HRA and
ECHR and that the likelihood of successful challenge is corresponding
Most public authorities are oblivious
to the notion of using human rights as a tool for good practice
and high standards in serving the community. This provokes scepticism
among them over the need to be put under a "duty to promote"
The one universal lament among public
authorities is the absence of human rights guidance material tailored
to specific areas of activity. The experience of the existing
equality commissions suggests that a human rights commission could
not meet this need directly (although this will be a function
proposed for the Scottish Human Rights Commission). A human rights
commission is unlikely to have the resources and, therefore, the
expertise to relate human rights to every area of government activity.
Like the three equality commissions, it would need to work primarily
through partnersthe umbrella organisations familiar with
particular sectors. From a public authority perspective, the best
guidance (on any issue) is that provided by parent bodies and
representative associations. A human rights commission would need
to tap into these networks. Only rarely should it be expected
to address public authorities direct.
Finally, and above all, a human rights
commission could take on the task of convincing busy and overworked
public authorities that human rights are important and something
that deserve to be embraced in every area of public activity.