Joint Committee On Human Rights Sixth Report



11. HUMAN RIGHTS NEEDS IN PUBLIC AUTHORITIES AND THE FUNCTIONS OF A HUMAN RIGHTS COMMISSION

  There is a slightly different question to acknowledge before considering what human rights needs in public authorities might be met by a human rights commission. These are the functions for a human rights commission that would not impact greatly on the work of most public authorities. A human rights commission would, for example, be able to:

    —  give human rights a home;

    —  participate in the international human rights debate;

    —  conduct thematic investigations; and

    —  speak directly to the public on human right matters.

  The rest of this section, however, addresses what human rights needs in public authorities could be served by a human rights commission. Some of these needs are known to and a cause of concern for public authorities; some are needs that they do not think have to be fulfilled and some are needs that they do not know they have.

11.1 Defining and guiding the human rights agenda

  The human rights agenda in the UK is dominated by the issue of legal compliance with a single regional human rights instrument (the ECHR). However, the ECHR is not the final word on human rights and, while highly influential in Europe, it has no bearing on four-fifths of the world's population. Convention rights have a stranglehold on human rights debate in the UK that is "disproportionate" to their importance and purpose. The Government's "human rights culture" for the UK can only encompass Convention rights. Public authorities can only conceive of human rights through the prism of the case law of the Convention.

  Against a backdrop of the HRA and ECHR, human rights are not well regarded by public officials. For most officials they are a potential threat to be dispelled by their lawyers. Most officials have no sense that they themselves are protected by human rights. There is no sense of human rights as a source of inspiration or aspiration in the workplace. Public officials are oblivious to notions of using human rights as a tool for good practice and high standards in serving the community. In this regard, a key role for a human rights commission would be to present human rights as being more than just a matter of legal interpretation by the lawyers. It needs to build a positive (almost a "soft focus") image for human rights. This needs to be done both in the public sector and the community.

  The experience of the equalities commissions indicates that a human rights commission would not be able to fulfil such a function through working directly with public authorities. By itself, a human rights commission would not have the resources and expertise to delve into every area of public activity and produce guidance and advice tailored to the needs of each sector. Consider, for example, the variety of pictures found in the three sectors studied for this report—a local government sector looking for advice on the institutional arrangements to incorporate human rights; a health care sector where human rights have no institutional role but are implicit in the most challenging of clinical decisions; and a social housing sector in which the status of the HRA has still to be determined. A human rights commission could only address such complexities in association with the umbrella groups (representative and regulatory bodies) already working in these areas. This is important work. At present, no department, body or group is speaking for human rights in the networks of public life.

11.2 A public sector "duty to promote" human rights?

  The promotion of human rights does not come naturally to public authorities. It requires public authorities to commit themselves to benchmarks and requirements that they do not fully understand and then to inform the community and service users of the existence of these standards and what action can be taken should they not be met. With no insight into what is a "human rights culture" or blueprint for the adoption of a culture of respect for human rights in their work, no public authority, under the current arrangements, would take such a "leap into the dark". The evidence of this report indicates strongly that public authorities will only act if directed to do so and told how to do so.

  Section 6 of the Human Rights Act makes it unlawful for a public authority to act in a manner that is incompatible with the rights contained in the ECHR. Public authorities are obliged to ensure that actions (or a failure to act) comply with the Convention. Enforcement is in the hands of the courts acting on complaints by victims of alleged violations of Convention rights. Litigation is a powerful enforcement tool but one constrained by the nature and facts of individual cases. There is no mechanism in the HRA to establish and monitor how public authorities should address their obligations to comply with the Act.

  The Race Relations (Amendment) Act 2000 requires public authorities to take positive steps to promote race equality and good community relations in addition to the requirement to avoid discrimination. The Commission for Racial Equality plays an important role in guiding and supporting public authorities in achieving this goal in addition to its enforcement powers for non-compliance. The public sector duty to promote racial equality is a combination of general and specific duties. The general duty to promote racial equality applies to all (over 40,000) public authorities. A smaller number of listed public authorities (around 2,500) are further required to prepare and publish race equality schemes (appropriate to their organisation and services) setting out how they will fulfil the new duty. These schemes remain valid for a period of three years at which point they will need to be revisited. The CRE does not intend to monitor the application of race equality schemes in individual public authorities. It will seek to achieve this by making this a requirement of the existing performance management and regulatory networks for different sectors of public activity. The Government has indicated that the DRC and EOC will have similar powers subject to the availability of parliamentary time. Forward-looking public authorities are already anticipating this development through the preparation of new all embracing equality schemes.

  The CRE (and EOC and DRC) do not provide the only role model for a public sector duty to promote human rights. It is an obligation that could be put directly on the Government. Section 75 of the Northern Ireland Act 1998 imposes a positive duty across all aspects of community relations in Northern Ireland. In Wales, the National Assembly is required, under the Government of Wales Act, to have "due regard to the principle that there should be equality of opportunity for all people". A report by the Institute of Welsh Affairs on the initial effectiveness of this measure noted:

    "The level of financial resources, political will and expertise that key politicians and officials have invested in promoting equality in the process of government is unprecedented in Wales. This marks the end of the pre-existing and largely laissez faire approach that has signally failed to address many enduring forms of inequality".34

  The report was able to point to a stream of measures being taken to implement the new equality duty. Of particular interest for the situation of human rights within the UK Government, is the fact that the equality duty in Wales provides for legal redress should Assembly Government support for mainstreaming falter or be withdrawn.

  The experience of mainstreaming human rights, however, makes it highly questionable that the UK Government would have the political will to be the instigator and supervisor of such a duty for human rights.

  The development of a public sector duty to promote human rights would not be a simple matter. It is an issue requiring much more detailed consideration than is possible within the time constraints of this study. From a "need" perspective the following observations are made:

    —  there would need to be a statutory basis for a public sector duty to promote human rights if it is to be taken seriously by public authorities (this is not "code of practice" territory);

    —  having a human rights commission is not essential for a "duty to promote" human rights but there is higher confidence of success if such a commission is involved in the development and has the role of supervising the initiative (this is beyond the capacity of the present "mainstreaming" arrangements within government without a major injection of "political will");

    —  there would need to be a clear sense of which human rights are to be promoted and guidance given on how they should be promoted. A duty to promote human rights is primarily a tool for delivering a "human rights culture" or culture of respect for human rights. It would not be a tool focused on enforcing legal compliance with Convention rights. The duty could be founded on the Convention rights contained in the ECHR and HRA but for most public authorities would probably gain most of its force through the promotion of Article 8. The possibility of the duty covering other rights is not ruled out—in some sectors, child-care being an obvious example, other instruments such as the International Convention on Rights of the Child would have equal significance; and

    —  a duty to promote should see human rights incorporated into performance management frameworks and enable a human rights commission to work through representative and regulatory bodies to instil human rights considerations in public authorities.

  Mixed views were expressed over the need for a public sector duty to promote human rights during interviews for this report. In public authorities themselves, where most of the interviewees were lawyers, the most common attitude was that there was no need for such a step because compliance with the HRA was not a problem and the building of a culture of respect for human rights was not an issue. The duty would be an unnecessary "burden" on overworked public bodies. Conversely, among representative/regulatory bodies and human rights practitioners, there was support for such a move in recognition of the limited perspective and predisposition of public authorities to act on human rights.

  It is also too early to tell if a public sector duty to promote racial equality offers an effective role model for human rights. The possibility cannot be ignored that race and human rights are simply at different high water marks. Two years ago, government and public authorities were either actively preparing for the Human Rights Act or making the right noises about doing so. Only the most astute political observer or a real pessimist might then have forecast how quickly human rights would lose political favour and any sense of priority. It is also more than a little ironic that the effectiveness of the steps taken to ensure compatibility with the Convention have robbed human rights of one of the most effective forms of reinforcement in heading off a steady stream of successful high profile challenges under the HRA. It has been all too easy for public authorities to treat human rights as a one off exercise rather than an ongoing process.

  Racial equality has had its own struggles in becoming an established part of public activity. The attention paid now by public authorities to the new race equality framework may also wither in time. Are race equality schemes durable and capable of being translated into effective action or are they destined to become a minor form filling burden for public authorities? Will having a dedicated commission in the form of the CRE supervising the initiative make the difference? Maybe not, but if it's involvement does not guarantee success, it does at least ensure that the attempt will be made something sadly lacking in the human rights arena. The possibility of establishing a public sector duty to promote human rights is one, therefore, that deserves further study in the context of the debate over the need for a human rights commission for the UK.

11.3 Bringing test cases (settling cases by public authorities)

  It is not unusual for public authorities to settle cases for a wide variety of reasons. Late in the course for the research for this report, evidence began to emerge that this practice was being employed in regard to human rights challenges. It does not appear that this is being done on a widespread or systematic basis but there have undoubtedly been occasions where an individual public authority has settled a matter with a human rights component knowing that its defence is weak. There are also human rights issues where a sector employs a watching brief and would be prepared to settle individual cases to avoid an unwelcome precedent being set. Indeed, one lawyer interviewed for this report, used the absence of precedent cases as an indicator of the strength of unease in a sector about a particular practice.

  Public authorities live in a world of human rights challenges based mainly on Articles 6 and 8 of the Convention. Settling is possible in an individual case because a complainant is rarely motivated first and foremost by a desire to have his or her human rights upheld—the human rights argument is produced only as an additional point to obtain a remedy for a specific complaint (improved care arrangements, better housing, eligibility for a benefit or higher rate of payment etc). For a public authority operating questionable procedures, it is tempting to make the concession in the individual case to avoid expensive and time consuming changes to systems and procedures. Two lawyers working with public authorities interviewed for this report, remarked that this sometimes worked to the distinct advantage of the complainant as they had seen nervous or ill prepared public authorities settle cases when confronted with a weak human rights argument. If a public authority settles, the claimant is happy because they have the remedy they sought, legal aid ends and no lawyer would recommend that they still proceed to seek vindication of their human rights in the courts.

  Settling is not a device employed in central government where the nature of the human rights complaint is often of more fundamental significance to the cases being brought. In central government, the "traffic light" review process, conducted prior to the HRA coming into force, identified potentially vulnerable for further scrutiny by the dedicated ECHR Issues lawyers' groups who then prepared "lines to take" (eg the "Points for Prosecutors" issued by the Legal Secretariat to the Law Officers) to ensure a consistent approach across the Government. These lawyers' groups also meet regularly to consider and formulate responses on individual cases with cross cutting implications for central government. The record so far indicates that even if a defence fails in the lower courts, there are good prospects of the government's arguments prevailing on appeal to the higher courts.

  The work of the ECHR lawyers' groups covers few issues of concern for most public authorities. These groups do not have lines of communication with public authorities or their representative bodies. Information would be disseminated through parent departments which has happened infrequently, for example, following challenges to planning (Alconbury), housing (introductory tenancies) and mental health (work of the mental health review tribunals) practices. Outside central government, there not separate well-established networks in which to debate and determine an "industry" response to significant human rights challenges. In practice, as such challenges will invariably test some aspect of government policy or legislation, a sector may rely on the government, with the "deepest pockets", to mount the defence. However, we have already noted, in the area of social housing, how the National Housing Federation has considered the need to step in should social housing providers' termination proceedings under assured shorthold tenancies face serious challenge under the HRA. In local government, the need to mount an "industry" defence has been considered both in England and Wales and Scotland. The LGA has examined the need but not proceeded with setting up a "fighting fund" for human rights challenges. It noted that an earlier system (before the HRA came into force) under which local authorities could request contributions from others to contest "important" cases received few contributions. Consistent with its low key approach to human rights matters and given the lack of significant human rights cases, at the present time, the association does not see a need to act in this area. In Scotland, SOLAR also examined the need for a war chest to defend critical challenges but again no action has been taken in the absence of such cases.

  Public authorities have had to handle comparatively few challenges under the HRA. This is primarily due to the effectiveness of the preparation and audit process and the fact that the Government acted early to remedy a small number incompatible practices in public authorities (surveillance procedures and the work of the Housing Benefit Review Boards being two areas that come to mind). Compliance with the HRA and ECHR is clearly not a problem for most public authorities. Settling cases to avoid a human rights challenge does occur, on occasion, and there may be advantage in having a human rights commission bringing test cases that would not permit this to happen. However, the main focus of such a "test case" function would most likely lie in areas of criminal law and such contentious issues as immigration practices etc (not the everyday concerns of the public authorities examined in this report). Nevertheless, if a human rights commission was to adopt the same criteria as the equalities commissions then other cases brought to clarify principles in the law, test new law or extend the manner in which the law is used could impact on a broader range of public authorities.


 
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Prepared 26 March 2003