Joint Committee On Human Rights Sixth Report


  This section examines the "information tree" that has mainstreamed and steered human rights from the centre into public authorities. It looks at how the human rights message is being disseminated from the centre to departments and from them to public authorities. Later sections will consider the nature of the "message" and the extent to which this is received, understood and acted upon by public authorities. In particular, this section examines the respective roles and activities of the Human Rights Unit in the Lord Chancellor's Department (LCD) and the two key government departments for local government, housing and health issues—the Office of the Deputy Prime Minister (ODPM) and the Department of Health (DoH).

3.1 Mainstreaming as a policy

  To have a lead organisation to steer the preparation and implementation process for the Human Rights Act 1998 has been unusual given the federal nature of Whitehall. It is a reflection of the seriousness with which the Act has been viewed within Government. However, the Government has never intended to give human rights paramount status above other considerations in policy formulation, decision taking and law making. It does not envisage a need for a central authority ("Ministry of Justice") with powers to oversee the HRA and enforce compliance by other branches of Government. And it has resisted such calls when made by non-Government bodies. No central authority, it has been argued could possess the knowledge, expertise and resources to relate human rights to every activity of government. Individual departments are considered best placed to exercise ownership and decide how human rights issues should be addressed in their areas of activity. It may also be observed that, on a practical and political level, no department would accept its work being directed by another and no Minister would wish to be associated with violations of ECHR rights across the breadth of government. The intention, therefore, has always been to mainstream the requirements of the HRA in every department, public authority and private body with public functions. At the same time, the evident importance attached to maintaining a consistent application of the HRA and ECHR across the Government has meant that there has been a continuing role identified for a central unit (the Human Rights Unit) to take the lead and co-ordinating role on human rights matters.

  Mainstreaming is conceived as a top-down activity. The Home Office (Human Rights Unit) set the initial direction, gravitas and tempo for the introduction of the Human Rights Act. It required and obtained commitment from senior management in other departments and established a working level relationship (a network of contact points) with these departments. As departments were to exercise ownership over the manner in which human rights would impact on their work, they had the responsibility to mainstream human rights throughout their business activities. Individual business units in departments were then expected to encourage and oversee preparations for the HRA in their public authorities. Here the pattern would repeat itself with a human rights contact point acting as the nexus for mainstreaming human rights across the activities of that organisation. In turn, that body's individual business units would carry the message to the public or hybrid bodies that they supervised or had dealings with. If mainstreaming worked, a consistent human rights message would be conveyed and embraced across every aspect of public activity.

  The risk in this process was that mainstreaming of human rights would function as a sequential system in which each level would need to acquire a certain degree of knowledge and expertise and complete a certain degree of activity before it could pass that wisdom on to the next level. For the system to work and provide continued reinforcement of the human rights message, therefore, all links of the chain would have to join and hold in place. There was an inherent risk in this process that—if links close to the centre failed, were preoccupied by other concerns or tardy in their preparations—the human rights message could be dammed at source or reduced to a trickle. And, unlike for the three equality strands (race, equal opportunities and disability), there was no external driving force, only a Human Rights Task Force, to assist and assess progress.

3.2 Mainstreaming between the centre and departments

  The Human Rights Unit provided an effective driving force to steer and monitor progress within Government during preparation phase for the Act. It produced, in co-operation with the Human Rights Task Force, high quality guidance material on the HRA and ECHR. This steady stream of guidance during the preparation phase, backed up by a diligent monitoring system, made it clear to departments that they should exercise ownership over the HRA and mainstream its requirements throughout their organisation. They were expected to:

    —  introduce, disseminate and observe the new human rights culture throughout their organisation;

    —  review their policies, procedures and legislation for compliance with the ECHR;

    —  ensure that public authorities and other bodies likely to be subject to the HRA were aware of its requirements and made similar preparations; and

    —  report back to the centre on their state of readiness particularly in regard to removing potential breaches of Convention rights.

  However, following the disbanding of the Human Rights Task Force in March 2001, only a modicum of effort has been made within Government to monitor progress or to maintain communication between the centre and departments on matters of human rights policy or practice. This reflects the situation that:

    —  human rights are not marked out for special treatment as a political priority of the Government;

    —  there are no other human rights policy initiatives in the pipeline which need to be communicated to departments;

    —  few "crises" have arisen, where human rights have been the driving force, which have required further policy guidance from the centre;

    —  since the events of 11 September 2001, there is a sense of ambivalence within parts of the Government over the need to focus on effective human rights protection;

    —  responsibilities for human rights have been shuffled and reshuffled at the centre and in individual departments; and

    —  last, but not least important, many departmental officials consider that the introduction and implementation of the HRA have been successfully achieved leaving little more for them to do.

  The Home Office was quick to end the system of periodic progress reports required during the preparation phase. It did not have the intention and hence the means to offer permanent support to departments regarding human rights matters. This situation has not change radically with the transfer of responsibility for human rights from the Home Office to the Lord Chancellor's Department. The LCD inherited a subject with a low political priority soon to be swept off the political map, as a positive force, in the response to the events of 11 September 2001. The first anniversary of the Act passed unrecognised and it was some months before the HRU, in its new home, could begin a slow reconstruction of the mainstreaming process.

  As a first step, in 2002, the LCD established an Interdepartmental Contact Point Plenary Group to maintain communication on human rights matters with departments. This group, which has met twice, to end 2002, provides an opportunity to exchange information and best practice and to co-ordinate action, for example, over the second anniversary of the HRA. Members of the group have also discussed how to carry forward the human rights agenda given its present low political priority and other initiatives competing for attention in departments such as the preparation of the FOI publication schemes.

  The low key manner in which human rights has been mainstreamed as a policy and administrative matter contrasts markedly with the great pains still being taken by the Government, through its legal networks, to maintain a system for two-way communication regarding court cases under the HRA and ECHR. This includes the identification of significant cases, the analysis of their implications and consequent explanation across the breadth of Government. A much higher premium is clearly set on dealing with the direct legal consequences (compliance aspects) of the HRA and ECHR than on their use as a means of delivering a human rights policy in Government. This is not to say that litigation and policy function in completely separate silos without any interaction between the two—indeed, they have become more closely entwined with the clustering of responsibilities and functions within the LCD.

3.3 Mainstreaming in departments

  The lack of active political championing of human rights at the centre over the last two years has meant that departments have been left very much to their own devices in implementing the HRA. By October 2000, all departments had reviewed their policies, procedures and legislation for compliance with the Convention. The majority had taken steps to mainstream awareness of the requirements of the HRA and ECHR within their own organisational structure. Most had alerted public bodies within their work areas to the coming into force of the new rights regime. A handful had taken meaningful steps to assist their public bodies to prepare.

  Since October 2000, the majority of departments have handled fewer cases citing HRA and ECHR arguments than had been anticipated. Few departments have had to make changes (or contemplate making changes) as a result of a court ruling. And in the absence of court challenges, most departments have substantially reduced the time and resources that they are prepared to devote to human rights matters. There are exceptions. The Home Office, with perhaps the highest exposure to Convention points being argued in the courts, has maintained a high awareness if not necessarily an enthusiasm for human rights in its policy and decision making. It has chosen to strengthen its systems for handling human rights matters notably through the establishment, in October 2001, of a Human Rights Management Unit in order to centralise advice on human rights matters for units of the Immigration and Nationality Directorate. Some other departments, such as the Department of Work and Pensions, continue to maintain sophisticated structures and mechanisms to oversee human rights issues but at a lower intensity of activity. A number of departments, however, have dismantled or allowed the systems put into place during the preparation phase to fall into disuse.

3.4 Mainstreaming between departments and public authorities

  It is not possible, in the time available for this report, to provide a complete picture of the manner in which departments have exercised their responsibilities to prepare and guide public and hybrid bodies over the implementation of the HRA. This section focuses, therefore, on the Department of Health (for the health care sector) and the Office of the Deputy Prime Minister (for local government and housing).

3.5 Health

  Preparations for the implementation of the HRA were handled by the International and Constitution Branch in the Department of Health. The branch oversaw the conduct within the department of the "traffic light" review and audit process instigated by the Home Office across Whitehall. Presentations on the implications of the HRA were made at Board level and a network of contacts established throughout the department for communication on human rights matters. Seminars on the HRA were also held for departmental officials.

  The department was slow to advise health organisations on the implications of the HRA. The department did not issue its first (and only) circular on the Act for health authorities and NHS Trusts until July 20002. This meant that HRA issues were often not picked up by health organisations until the Autumn 2000 business planning cycle. This lost time and ground has not been recovered by many health organisations.

  The Department of Health did establish a dedicated human rights section on its departmental website and used this to provide some analysis of the potential implications of the HRA for the health care sector together with links to the general guidance being produced by the Home Office3. Many health care staff, however, did not have access to the internet/departmental intranet in the workplace—a situation which is now improving. Human rights issues were also addressed by some of the DoH's agencies during the preparation phase. The NHS Litigation Authority, for example, organised a series of regional conferences and published a useful compendium of articles examining the potential impact of the HRA on different aspects of health care.

  Mirroring the picture in other parts of Government, preparations within the lawyers' groups covering health and social services were thorough and well advanced by the time the Act came into force.

  The DoH had early exposure to the impact of the HRA (and before the Act came into force) through the Court of Appeal's use of Article 8 to uphold a complaint by a resident over the closure of a care home where she had been promised a "home for life". The department responsibly published guidance on the implications of the judgement for the provision of continuing care. 4

  A flurry of "right to life" cases soon after the HRA came into force also directed some general attention to human rights issues within the department but this was not maintained in the absence of further or successful challenges.

  Throughout this period, the DoH has been an organisation in a constant state of flux. Specific to human rights, an internal re-organisation of responsibilities, in mid 2001, saw primary responsibility for the handling of HRA matters pass from the International and Constitution Branch to the NHS Litigation Authority. The authority's human rights work has been and remains strongly focused on the compliance aspects of the Act (avoiding or defending challenges). The authority's brief does not extend to fostering good practice or a culture of respect for human rights within the health care sector. It does, however, have plans to set up an online HRA information service to provide details of significant human rights cases for the health care sector.

  Human rights issues have had only a marginal impact on other branches of the DoH. A notable exception is the Mental Health Branch where human rights have figured prominently through a series of legal challenges and first use of the remedial order procedure. The branch has been obliged to issue guidance on such matters for the Mental Health Review tribunals and mental health care professionals. Human rights are also an important component in the ongoing review of mental health legislation.

  In April 2002, responsibility for human rights policy within the DoH passed from the International and Constitution Branch to the Equalities Strategy Group. The group now represents the department on the LCD interdepartmental group. However, when approached in October 2002, the group had yet to assimilate human rights into its equalities agenda (of ensuring that all branches within the department would have to account, through an annual review at Board level, for their performance in meeting equality objectives).

  One official is dedicated to human rights matters within the equalities group. The network of contact persons in other branches has lapsed with little likelihood of it being resurrected. As a result, over the last year, there has been very little communication with health organisations on human rights matters. Recently, in October 2002, revisions were made to the guidance available on the department's website to take account of new case law and the latest series of LCD road shows have been publicised through the Chief Executive Bulletin with a good take up by health organisations. Otherwise, little fresh information on human rights cases or issues of interest to the health care sector has been made available since the HRA came into force. And no feedback from the health care sector on human rights matters makes its way back to the equalities group.

  In all of this it is important to note, as a backdrop, that the DoH is pursuing a deliberate policy of loosening the strings and reducing the degree of central direction over health organisations. A massive re-organisation within the health care sector has seen the creation of new strategic health authorities and the formation of new acute NHS trusts and Primary Care Trusts. Within this "devolved" system, there is no mechanism (aside from the Chief Executive bulletin and website) for the Equalities Strategy Group to communicate with the strategic health authorities or individual health bodies. Such communication would fall to the four regional health directorates within the department. To date, however, there has been no communication on human rights matters between the equalities group and these directorates or between these directorates and the strategic health authorities. Therefore, for example, while the equalities group is aware of the District Audit findings on the indifferent response in many health bodies to the introduction of the HRA (see section 6.7 below), it has no plans or means to act on this information. The group does not have its own sources of information to discover what is happening in individual health bodies with regard to the Act. In fact, it considers that it does not need such information (and, indeed, was unable to comment at all on what might be happening in individual health organisations with respect to human rights). Within the management structure, reinforcement of the human rights message in health bodies would therefore appear to be the responsibility of the strategic health authorities. However, there is no evidence that they are doing this or that they have been asked to do this by the regional health directorates in the DoH. Of the many other departmental agencies in regular contact with health bodies, most do not adopt a human rights dimension in their work. We have touched on the partial exception of the activities of the NHS Litigation Authority but should note now that while its assessment processes in relation to individual health bodies cover equality issues they do not cover human rights. A similar picture emerges in the clinical governance reviews undertaken by the Commission for Health Improvement. The Commission's initial reviews of acute health trusts did not cover human rights issues. Such issues did figure in an ad hoc manner in the review of mental health trusts but are absent again in the current review exercise examining Primary Care Trusts (although racial equality issues are being covered at the prompting of the CRE).

  At this point, therefore, the health care sector is an environment where mainstreaming has not succeeded, nor can it succeed, in establishing the human rights message. The consequence of this (which we discuss in more detail in section seven) is that human rights have failed to take root in any systematic form in the health sector.

3.6 Local Government and Housing

  Organisational upheavals have also had a major impact on the manner in which human rights issues have been addressed in the spheres of local government and housing.

  During the preparation phase, the "Modernising Government" section in the Department of the Environment, Transport and the Regions (DETR) oversaw the review and audit of policies, practices and legislation for consistency with the HRA and ECHR. Contact points were nominated in each of the department's policy divisions and a series of training seminars held for departmental officials. Legal advice on Convention issues was decentralised and handled by the teams of departmental lawyers working for individual policy divisions.

  A joint DETR/Local Government Association letter was sent to all local authorities outlining the purposes of the HRA and drawing attention to the Home Office guidance for public authorities. The department also organised some training for public authorities on the HRA but largely left this task to the LGA as well as the preparation of specific guidance material. Departmental officials had confidence over the extent to which the LGA could carry forward the human rights agenda. Conversely, within the LGA and among local authorities there was some criticism of the department's failure to take a more active role.

  The primary focus of the DETR, during the preparation phase, was on risk assessment and ensuring compliance with the requirements of the HRA and ECHR. The department was particularly watchful over the possible implications for England and Wales of cases in Scotland over what constituted a fair and impartial tribunal or self-incrimination in road traffic offences. It had also to deal with the ongoing debate over Section 28 of the Local Government Act and the implications of the incoming legislation on the regulation of investigatory procedures. But attention was not wholly focused on questions of compliance—some attention was also given to embracing the notion of building a human rights culture as part of the best value delivery models being introduced in public authorities.

  With the HRA in force, there was soon internal management pressure to re-deploy the resources devoted to monitoring implementation of the Act. This process was put into reverse, in December 2000, with the first declaration of incompatibility in the Alconbury judgement which brought human rights to the front and centre of the department's political agenda. Subsequent to the decision of the House of Lords, upholding the Government's position, the Planning Inspectorate wrote to all local authorities, in November 2001, detailing how to deal with the implications of the HRA for the planning system. This was the second occasion on which the department had offered such guidance—the first occasion being a letter written in February 2001 to the Chief Housing Officers in Local Authorities setting out the consequences for introductory tenancies of R v Bracknell Forest District Council. 5 Both instances demonstrate the embedding of human rights in core activities albeit to see them dressed as something of an obstacle and hindrance to the work of the department and its public authorities.

  Issues far removed from the field of human rights prompted radical organisational changes affecting the local government and housing portfolios first with the creation of the Department of Transport, Local Government and the Regions (DTLR) and then the Office of the Deputy Prime Minister (ODPM). The department's human rights competencies survived the first change but not the second when the designated staff were retained by the Department of Transport.

  Within ODPM, human rights now comprise a small part of the portfolio of the Devolution and Constitution Division. The Division has unquestionable human rights expertise extending back to its days as part of the Constitution Secretariat of the Cabinet Office. However, at the end of 2002, as part of the ODPM, it did not have a human rights agenda and had yet to consider its role in this regard. The Division sits on the LCD interdepartmental plenary group (but has yet to attend a meeting). It is conscious that the network of internal human rights contact points first established by DETR has lapsed and will need to be rebuilt through the Local Government Directorates in ODPM. But this is not a high priority. By comparison, the ODPM lawyers' network remains functional and its lawyers continue to participate in the ECHR litigators' groups and to share information on human rights cases. Surprisingly, they do not appear to have knowledge of or contact with the Local Government Human Rights lawyers group supporting the human rights work of local government (see section 6.3 below). It is an important policy tenet for ODPM that it is not to micro manage local government. The Devolution and Constitution Division has no means to contact local authorities (save through Ministerial letter or circular) and no means to obtain feedback from such authorities. The Division is aware of the District Audit findings published in May 2002. It believes that the LGA will act as its envoy on human rights matters should the need arise. This belief demonstrates ignorance of the limited attention now being paid to human rights matters by the LGA (see section 6.2 below).

  There is evidence of human rights being mainstreamed into the work of individual directorates in the ODPM and it predecessors. We have already noted the exchange of information on planning and housing issues prompted by the Alconbury and Bracknell Forest judgements. Human rights are also touched on in departmental guidance on housing matters (posted on the housing pages of its website)—on tackling racial harassment in social housing; tackling homelessness and dealing with anti- social behaviour. The coverage is brief, focused on compliance but also comparatively rare among government departments.

  It should also be noted that the ODPM is not the only conduit for the human rights message to reach local government. As a user of the "Info4localgov" website, the LCD is also able to address local authorities directly and has done so for the launch of its revised study guide and latest series of human rights road shows.

3.7 The future of mainstreaming

  Mainstreaming assumes a degree of continuity and stability within the Government structure. However, this has not been a period of stability within Whitehall. As a low priority issue, human rights have been swept along as one small piece of flotsam in a sea of competing and more pressing priorities. There has been no conscious decision or single act to undermine the mainstreaming of human rights. What has happened has been piecemeal and unconnected. The transfer of human rights from the Home Office to the LCD and the preoccupation with combating terrorism since the latter half of 2001, silenced the human rights message for a long period at source. In the same period, human rights slipped down the order of priorities for most departments. The fear factor associated with the HRA and ECHR has diminished substantially in the absence of large numbers of successful challenges in the courts. For most departments, the HRA and ECHR have presented few problems to date irrespective of how well or poorly prepared they might be. Only where significant issues have arisen, have human rights matters become a priority issue and then only for those directly involved (eg in asylum, planning and mental health matters). Otherwise, most departments have felt able to substantially scale down their human rights activities and switch attention and training resources to the next initiative in line (normally FOI and Data Protection).

  In the two departments examined above (DoH and ODPM), it is evident that human rights were not cemented in place firmly enough at the outset to withstand organisational change and pressures from competing priorities.

  Recent attempts by LCD to reinforce and rebuild mainstreaming are now confronted with an environment much less conducive to success. Without the political will or serious external threat (from the courtroom) there is little prospect of the mainstreaming process for human rights being revived in departments. This would not be a problem if human rights were already cemented into the core activities of departments but there is little evidence of this in the case of ODPM and DoH.

  This is an area for the Government to get its own house in order. No external body or human rights commission of any shape or form would be able to compel meaningful action from a reluctant Whitehall. Of direct concern for this analysis is whether problems at the centre have resulted in failures in the mainstreaming process throughout the public sector and, if so, whether any such failings could still be rectified through this process or whether new avenues should now be tried. In other words, what should be done if mainstreaming has failed to cement human rights as a core element of public activity?

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