11. Memorandum from The British
Institute of Human Rights
Please find enclosed a copy of the British Institute
of Human Right's submission to the Joint Committee on Human Rights,
in response to your call for evidence on a Human Rights Commission
for the UK.
BIHR's work is dedicated to the promotion and
protection of human rights, and, in particular, to making human
rights accessible to all: it is in this context that the establishment
of a UK Human Rights Commission could play a valuable role.
Since the introduction of the Human Rights Act,
there has been an upsurge of interest in human rights. While a
tremendous amount of time and effort has been invested in professional
training for judges, lawyers and public service providers, BIHR
is concerned that those who are often on the front-line of providing
advice and/or public services should also have access to current,
relevant information about the impact of the Act on their work.
And in particular, BIHR is keen to ensure that those who have
the most to gain from the Act (as well as the most to be disappointed
by) have a sufficient awareness and understanding of their human
rights to be able to access the advice and assistance they might
need. This requires, as the government has acknowledged, the development
of a "human rights culture". And this will not happenor
will happen much more slowlywithout someone or bodyactively
promoting and encouraging it.
Expectations have been raised as a result of
the Act. Without one place to which to turn for help and advice,
without the possibility ofeasily accessibleeffective
remedies and methods of resolving disputes, the Act will not reach
its full potential. A Human Rights Commission could fulfil this
Our submission, however, focuses on one element
only of the possible functions that a Commission might havemediation.
This is, in part, a recognition of some of the excellent work
already done in support of a Commission, by organisations such
as the Institute for Public Policy Research and others. We have
restricted ourselves to looking at mediation precisely because
this is one area which has received less attention.
28 June 2001
1. The object of the British Institute of
Human Rights is to protect and promote human rights. We are concerned
both that the rights of individuals are protected and that public
authorities promote human rights and observe their standards.
The establishment of a human rights commission could have a significant
impact in reaching these goals.
2. We do not believe, however, that a human
rights culture will be achieved through litigation or that all
complaints about breaches of Convention rights need to be decided
in court. The use of mediation, as an alternative to litigation
in suitable cases, has the potential to play a significant role
in the protection and promotion of human rights.
3. Because this issue has attracted little
attention, we have decided to concentrate our submission on it.
We propose that one of the powers of any human rights commission
could be to assist individuals in resolving their complaints through
mediation where appropriate. We suggest that a commission draw
on the experiences of the Disability Rights Commission and overseas
human rights commissions in providing mediation services.
4. As the JCHR anticipates in its Call
for Evidence (Question 1, function (c)), the public will expect
that a human rights commission will advise and assist on human
rights issues. It is likely that there will be many enquiries
about personal circumstances in which a breach of Convention rights
may have occurred. If it appears that the enquiry raises matters
of public interest, the commission may wish to litigate on a test
case basis. Although important, these cases will be relatively
rare and should be dealt with as a separate function, as anticipated
by the Call for Evidence (Question 1, function (e)).
5. The majority of complaints, however,
are unlikely to have a public interest element and it would be
preferable for the commission to be pro-active in its response
and do more than refer callers back to their local citizens advice
bureaux or to legal advisers. We believe that for a commission
to have the power to offer mediation services following the lodging
of a complaint would be to provide real assistance to people.
6. Mediation is an increasingly popular
method of alternative dispute resolution (ADR). It is a voluntary,
informal and confidential process in which the parties seek to
resolve their dispute with the help of an independent third party.
It enables the parties to present their views, and allows issues
to be aired and solutions considered in a way not possible in
court. The procedure works best where there is an ongoing relationship
to preserve and room for manoeuvre in the dispute. Where mediation
is successful, costs are lower and less time is spent on the dispute.
The agreement reached usually lasts because it is the work of
7. There are many mediation schemes in existence
and they do not all follow the same format. Sometimes they are
called "conciliation" services. Typically the mediator
acts as facilitator but not as adviser though in some models the
parties may be given advice on their legal rights. This is the
case with the long-standing Advisory, Arbitration and Conciliation
Service (ACAS) in employment disputes.
THE UK: SOME
Disability Conciliation Service
8. In March 2001, the Disability Rights
Commission established a conciliation service managed by Mediation
UK. The services are advertised as follows:
"The process of conciliation is a means
by which a third partya conciliatormay help settle
a dispute without having to go to court.
The DRC's Conciliation Service is free and voluntary
for both parties to the disputethe disabled person and
the service provider. It will enable a person with a complaint
to discuss their case in confidence with an independent conciliator.
If the other party to the dispute, the service provider, is willing
to participate in the conciliation process, the conciliator will
assist the parties to work towards a resolution of their dispute.
If a resolution is not achieved, or if the service
provider is unwilling to participate in the conciliation process,
the case can still be taken to a County Court or Sheriff Court
in Scotland. An additional two months are allowed to the statutory
time limit for bringing a case for anyone referred to the DRC's
Conciliation Service who then takes their case to court."
9. The DRC will advise people on their legal
rights but the DCS conciliators do not do this though they have
an awareness of disability rights. Reports from the scheme are
that: "our experience so far is that the conciliation process
is a truly educative process for many of our respondent service
providers' and the DRC has commented that: "a conciliated
settlement offers more prospect of effecting real change in practices
and policies." These are important and wide-ranging consequences.
10. The DCE has not yet made its case statistics
available but its predecessor service demonstrated that conciliation
was a useful and successful alternative to going to court. Of
121 referrals made by the DRC to that service between April 2000
and March 2001, 54 per cent of complaints are believed to have
been settled. With regard to costs, the DRC expects to spend about
£350,000 in the first year of the new DCS (including substantial
set-up costs). Individual conciliations cost £200 if conducted
on the telephone and £250 if they involve meetings.
Commission for Racial Equality
11. By contrast, the CRE in its early life
as the Race Relations Board had an unhappy experience of conciliation
which was provided for under the 1965 and 1968 Race Relations
Acts. Conciliation was found to be and still is clearly not appropriate
in cases of serious or widespread racial discrimination and under
its present statutory arrangements the CRE advises potential claimants
that remedies lie in the courts. It recognises the shortcomings
of this, however, by cautioning claimants that it is not easy
to bring racial discrimination cases and that pursuing them `can
be very stressful and time-consuming'. The current situation is
unsatisfactory and would benefit from review.
Local Authority and Independent Schemes
12. Many local authorities support mediation
services in a variety of situations where rights in their widest
sense are at issue. These include schemes for employees and community
provision for neighbourhood disputes. There are other examples
of ad hoc mediation schemes such as family group conferencing
run by the Family Rights Group for social services departments
and the pilot conciliation scheme in special education needs disputes
provided to the Department for Education by the Shaftsbury Society.
Proposals for a HRC for Scotland
13. The Scottish Human Rights Centre has
recommended that a human rights commission in Scotland have the
power to conduct alternative methods of dispute resolution because:
`many issues involving human rights are by their nature, not justiciable
in the courts' and because such a power: `would provide a less
expensive and quicker resolution to a number of problems'.
The Government's View
14. In recent years the Government has promoted
the use of ADR in a range of civil disputes and the number of
pre-action protocols incorporating mediation into the litigation
process reflects this. Recently the Government has pledged to
settle its own legal disputes out of court. In announcing this
initiative in March 2001, the Lord Chancellor stated: `Very often,
there will be alternative ways of settling the issues at stake
which are simpler, cheaper, quicker and less stressful to all
concerned than an adversarial court case.'
15. The Lord Chancellor, however, has stated
that ADR is not suitable for `human rights' cases and the expectation
is that all claims under the HRA will be adjudicated in court.
Notwithstanding this, the Lord Chancellor's Department in its
Discussion Paper on ADR (November 1999) used human rights language
to promote ADR: `The Government's aim is to improve people's understanding
of their rights and responsibilities and how to resolve disputes
which affect them in a way that is proportionate to what is at
stake. The use of ADR techniques will have a part to play in the
proportionate resolution of disputes.'
16. It is clear that the question of the
suitability of mediation in human rights cases deserves more consideration
and our contention is that its appropriateness depends on the
type of dispute, the individual circumstances and the needs of
THE HRA WHERE
17. Not all complaints about the acts or
omissions of public authorities under the Human Rights Act involve
public interest issues, require a legal precedent or concern the
establishment of a fundamental right. The Act has raised expectations
for the public that are unlikely to be met in the courtroom. For
example, a court could decide whether a pupil permanently excluded
from school has been denied the right to education. But it cannot
negotiate the arrangements that will resolve the dispute.
18. Nor can the courts deal effectively
with allegations of ill treatment in residential homes. In extreme
cases, the courts could decide that such treatment was degrading
and in breach of Article 3 of the ECHR and impose the appropriate
penalties and remedies, but the courts could not engage with the
relevant authority on how such treatment would be avoided in the
future. In less extreme cases, where the treatment is clearly
degrading by public standards but falls short of the high threshold
the courts will use, mediation could play a vital role in negotiating
good practice, where the courts would fail to deliver any change.
19. In many cases, such as complaints about
the breach of the right to family life, the determination of a
claim under the Act involves consideration of whether a Convention
right exists and whether the infringement of that right is proportionate
to the public authority's legitimate aims. It is within this balancing
exercise that mediation has the potential for manoeuvre.
20. Human rights commissions in countries
like Australia, Canada and New Zealand have long-established mediation
or conciliation schemes for complaints lodged under applicable
human rights and equalities legislation.
These provide useful information on the suitability
of mediation in human rights complaints.
21. Taking Canada as an example, in its
annual report for 2000, under the heading "Success with a
New Approach" the Canadian Human Rights Commission reported
"promising results" with a two-year pilot offering mediation
before any investigation of the complaint. This new scheme is
distinct from an existing conciliation service which follows an
investigation by the Commission. Over half of the complaints were
settled by mediation and the Commission has decided to make the
procedure permanent. The Commission dismissed concerns that mediation
might fail to address systemic discrimination by reporting that
in fact: "mediated settlements have included commitments
by employers and service providers to develop new policies and
UK HRC: A MEDIATION
22. In our view mediation services could
be one of a range of facilities that a human rights commission
might offer to the public. They would not be suitable for all
complaints but could offer real remedies in other cases. There
are, however, questions to address in terms of how legal advice
fits with the mediation process and the best way to ensure that
the parties make informed choices about the dispute resolution
route they pursue.
23. Subject to fuller reports on its progress,
the DCS is an obvious starting place as a model. Both its voluntary
nature and the two-month extension of time to make a complaint
are important principles to preserve to avoid possible contravention
of procedural rights guaranteed by Article 6 ECHR. The fact that
the scheme is independent avoids any potential conflict within
the commission between functions (c) (advice, assistance and mediation)
and (e) (taking legal proceedings). The commissions in other countries,
however, operate schemes internally and so this question should
be explored further. Certainly, if the services are independent
they will need substantial support from the commission.
24. We believe that any mediation scheme
must have as its primary objective the protection and promotion
of human rights. The procedure should constitute "rights-based"
mediation where: "the mediator takes a more proactive role
in ensuring that any mediated agreement reflects statutory rights
and legal entitlements" (Advice Services Alliance, Advising
on ADR, p14). Mediators will need to receive training on the
Human Rights Act and European Convention on Human Rights. In addition,
they will have to demonstrate sufficient skills to rectify the
imbalance of power that is likely to be present in complaints
brought by individuals against public authorities. Whether mediators
should have the power to give the parties legal advice should
25. Without compromising confidentiality,
data could be collected on breaches of the ECHR and how they have
been dealt with so that the HRC could formulate policy on public
education and accountability of public authorities. The Australian
Human Rights and Equal Opportunity Commission publishes a register
of conciliation complaints. It is therefore public knowledge what
types of human rights violations occur and how they can be settled.
26. A mediation service provided by a human
rights commission is an opportunity to further the protection
of human rights and to gain public support. For individuals to
participate in making decisions about their own rights is genuinely
to "bring rights home". The informality and privacy
of the process combined with the greater options for resolution
of the complaint could be empowering for complainants, allowing
them to shake off their "victim" status.
27. Encouraging public authorities to reach
a consensus on issues of human rights is also likely to be a positive
development. Several have recognised the value of alternative
dispute resolution in the context of Convention rights. For example,
the principal solicitor at a unitary council in the North West
recently commented: "I consider that local authorities would
welcome ADR as a way of complying with the principle of proportionality.
It is far more likely that each side will believe that their concerns
have been properly addressed if they themselves have been an active
party to arriving at a solution."
28. This enlightened approach could encourage
the culture change within public authorities that lies at the
heart of the Human Rights Act. In addition, as the experience
described above shows, the settlement of one complaint can lead
to implementation of policies for the benefit of many.
29. The BIHR invites the Committee to consider
establishing a human rights commission with inter alia
a power to offer mediation services in suitable cases or at minimum
to consider whether such services are appropriate. We believe
that mediation could offer real access to justice to those individuals
and families whom the Human Rights Act was designed to protect.
2 July 2001