Joint Committee On Human Rights Sixth Report


  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 authorities.

  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 assessment—the main governance tool and focus of local government. Representative bodies—the Local Government Association (LGA), Local Government Information Unit (LGIU), CIPFA etc—are 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 arises).

    —  Public authorities do not view human rights as a priority issue. Compliance with the HRA is not viewed as a problem by public authorities—most 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 authorities

    —  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 authorities.

  2.3  What could a "human rights commission" contribute?

    —  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 public authorities.

    —  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 activity.

    —  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 would be:

    —  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 small.

    —  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" human rights.

    —  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 partners—the 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.

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Prepared 26 March 2003