Memorandum by The Constitution Unit
1.1 The Home Office and Departments
The Human Rights Act 1998 has been mainstreamed
into every area and activity of government. The degree to which
it has taken root varies being at its strongest at the centre
and in the legal services, of more variable impact among government
departments and of limited impact among public authorities and
other bodies with public functions.
Human rights have not been given paramount status
above other considerations in policy formulation, decision taking
and law making. The Home Office's activities have focused more
on risk management strategies than the possibilities and potential
of the Act to put human rights considerations at the centre of
policy and decision making in government.
The Home Office has made effective arrangements
for the implementation of the Act within government. It produced
good guidance material, set up an efficient framework within which
to guide and monitor progress in departments and sensibly drew
on outside expertise through the Human Rights Task Force.
The main focus of its early work was to develop
a consistent approach on risk assessment and the auditing of policies,
procedures and legislation across government. This was informally
known as the "traffic light" system, which graded the
degree of risk according to a matrix assessing the significance
or sensitivity of an issue, its vulnerability to challenge and
the likelihood of challenge. In broad terms, issues were categorised
REDstrong chance of successful
challenge in an operationally significant or very sensitive area.
Action must be taken as a priority.
YELLOWreasonable chance of
challenge, which may be successful. Action should be taken if
GREENlittle or no risk of
challenge, or of damage to an operationally significant area.
No action required.
Changes were made as a result of this risk assessment
process including: the requirement for magistrates to give reasons
for decisions, new arrangements for part-time and temporary judicial
appointments, putting procedures for covert surveillance on a
statutory footing and the decision to bring housing benefit reviews
within the ambit of the Appeals Service.
The effective execution of this exercise would
appear to be borne out by the comparatively small number of successful
challenges in the courts on Convention points since October. The
avoidance of challenges in the domestic courts has proved to be
a major motivation for departments to comply with the provisions
of the ECHR and Human Rights Act.
Since October 2000, the Home Office has assumed
a more passive monitoring role. It appears now to have no policy
or plans beyond "bedding down" the Human Rights Act.
No preparatory work is being undertaken for any of the further
steps once contemplated as possible steps to follow the Act. The
government has grown cold about the idea of allowing individual
access to other treaty monitoring bodies as provided for under
a number of the UN human rights treaties; it has no plans to implement,
in the near future, the new Protocol 12 to the ECHR; it offers
no encouragement for the establishment of a UK Human Rights Commission.
In terms of the Human Rights Act, the Home Office
would seem close to viewing this as a job done. Co-ordination
functions have reverted to the Cabinet Office. The arrangements
for departments to report progress back to the Home Office have
ended. The Human Rights Task Force will be wound up in April.
Does this mean that human rights have been successfully
mainstreamed in departments, their public authorities and hybrid
bodies? The risk management process has made departments aware
of their obligations under the ECHR ; section 19 of the Human
Rights Act has made the Convention an integral part of the process
of policy and law making; superficially, even the now widespread
use of the term "proportionate" in all manner of government
announcements is a pointer to the growing influence of the Convention.
But acceptance of human rights is not yet firmly cemented in departments
(a point returned to in considering the development of a "human
rights culture" below). Many departments have barely scratched
the surface in bringing the human rights message to their public
authorities and hybrid bodies. Will they do so without continued
direction and scrutiny by the Home Office or another organisation
at the centre. In the absence of monitoring mechanisms, it seems
extremely unlikely that departments will continue to view human
rights as a priority issue. And, already, the system of human
rights co-ordinators in departments shows signs of unravelling
as officials switch their attention to new issues (such as freedom
As matters stand, the Home Office has achieved
a measure of success in mainstreaming the requirements of the
Human Rights Act across government but it cannot be sure that
respect for human rights has been firmly established in every
department, public authority and hybrid body. There is still a
need for a body at the centre to champion the cause of human rights
within government, especially in relation to the creation of a
"human rights culture" (see below). It would appear
premature to wind up the existing monitoring arrangements which
will surely lead to the dismantling of the "points of contact"
network in departments. It also suggests that the Home Office
has no plans to communicate with departments on any other human
rights plans or policy proposals.
1.2 Legal services
Two ad hoc legal groups deal with the Human
Rights Act (the ECHR Criminal Issues and ECHR Civil Litigation
co-ordinating groups). They comprise senior government lawyers
from across government.
The ECHR Criminal Issues Co-ordinating Group
has been the more active forum. Prior to October 2000, it examined
"red-light" issues identified by departments, proposing
remedial action in some cases but for the main marshalling arguments
that might be used to defend against challenges in the courts.
It was active in helping to prepare materials and guidance for
prosecutors including the published "Points for Prosecutors"
and the Crown Prosecution Service's internal "ECHR Guidance"
manual. Since October, the group has established a subsidiary
"fast-tracking" group which meets weekly to identify
key criminal cases with human rights implications and to consider
what action is necessary. In most cases it is this group that
decides which cases should be fast tracked for appeal. However,
it will not handle "headline" cases or those which involve
major policy issues. Special meetings involving all the main players
are called in such cases.
The ECHR Civil Litigation Co-ordinating Group
met infrequently before October 2000. However, it did form "focus
groups" to consider such issues as the ramifications of the
Kebilene judgements and was involved in the very welcome
revisions to the "Judge Over Your Shoulder" which now
incorporates guidance for administrators on the Human Rights Act.
Since October, the group has had to step up its efforts to respond
to a greater than expected use of the Act in civil cases. It has
had difficulties in identifying key cases quickly and is not set
up to make decisions on appeals etc in such cases. In part, this
is because there is a much greater need for policy input in civil
matters. "Headline" cases, such as the "declaration
of incompatibility" concerning the planning system, are steered
by the lead department. The Civil group is now preparing its own
line to take focussing on key cross-cutting issues (eg Article
Tracking cases and developing mechanisms to
"capture" key cases presents a major challenge for the
legal services. It is easier to do this for criminal matters where
the "fast-tracking" group has good links with all of
the CPS areas. These arrangements are considered to be working
satisfactorily. On civil matters, it is more difficult to "capture"
key cases and the Civil Litigation group is working hard to find
a happy medium between being inundated with all cases and receiving
details of no cases.
Looked at overall, the government's litigation
strategy reflects a belief that most of the occasions where Convention
points are raised will be without merit and that a robust defence
should be mounted in the courts. Where a Convention point is raised
successfully, an appeal is almost automatic. In fact, it would
appear virtually impossible for any department to accept a court
ruling that would have implications for other departments because
of the difficulties and time involved in obtaining the agreement
of all parties. It is much easier to appeal.
There is a growing sense of relief and satisfaction
among departments at the sizeable number of challenges that have
been rejected (which include some issues which had been thought
vulnerable during the risk assessment exercise). It would appear
that the newest lawyer's group, formed to consider the consequences
and changes that might be necessary when challenges are still
upheld on final appeal, has had little to do so far. And it is
still too early to gauge how the government will respond when
The legal services would seem to have cause
to be satisfied with their handling of the Human Rights Act so
far. If there is one question mark, it concerns the ad hoc and
informal nature of the present arrangements for dealing with the
Act. The initial need for flexibility in order to find the best
approach and right balance for dealing with Convention issues
is well understood, but eventually these arrangements should be
"institutionalised" to provide for an effective permanent
2. HUMAN RIGHTS
The Human Rights Act is intended to serve as
the basis for a new "human rights culture" in the UK.
However, it is evident, at the outset, that the Human Rights Act
can be introduced (in reality is being introduced) without the
creation of a "human rights culture" in the UK. Presently,
the phrase has little real meaning and its use invites cynicism
both within and outside government.
2.1 What is meant by a "human rights
The Home Office is responsible for the promotion
of a "human rights culture" in the UK. It has seemingly
sought to establish such a culture based on communitarian principles
in which the rights of individuals are balanced by their responsibilities
to society. It does not espouse the more liberal view of building
a "human rights culture" that exists primarily to empower
the individual with rights against executive and legislative overreach.
The Home Office appears content to build its
culture around the relatively narrow band of civil and political
rights covered by the ECHR. It can be argued, however, that a
true "human rights culture" should encompass more than
a simple adherence, and compliance with, the precepts of a single
regional human rights instrument (even one as important as the
ECHR). The ECHR is not comprehensive. The UK has accepted elsewhere
a vast array of economic, social and cultural rights, non-discrimination
rights, children's rights etc through other regional and international
human rights instruments. These rights should be considered no
less important in building a "human rights culture"
(even if they will never figure in a courtroom under the Human
Rights Act). But, for the moment, Convention rights have become
synonymous with human rights and the "human rights culture"
no more than building a "culture of compliance" with
2.2 Promoting a "human rights culture"
There are two elements to promoting a "human
human rights becoming part of the
process (rules of the game) of government and political life;
human rights becoming part of public
Both are substantial tasks which cannot be achieved
overnight and are not likely to be achieved on the present scale
of activity of the government.
2.3 A "human rights culture" within
Inculcating a sense of respect for human rights
among government officials is vital. Arguably, the greatest potential
value of the Human Rights Act lies in that which does not happenthe
court challenges which do not occur because human rights considerations
were already central to the thought processes of those involved
in formulating and executing policies and legislation.
The Home Office has not sought to impose a uniform
"human rights culture" in mainstreaming the requirements
of the Human Rights Act across government. It has focused attention
on the need to comply with the ECHR and talks of a "drip
drip" effect in heightening awareness of human rights within
departments. Government departments have been left largely to
their own devices, therefore, to determine how they should bring
about a human rights culture. The handful of departments to address
the issue have done so through a prism of their existing priorities
and policies. Some organisations (notably the police and in local
government) have combined human rights with best value initiatives
on the delivery of services. Others have linked human rights to
the "culture of openness" being pursued through the
data protection and freedom of information legislation. One department
considers human rights to be a new form of entitlement or benefit
to be enjoyed by their clients, two others that human rights should
be part of a more customer orientated approach to their work.
But even where the issue has been considered, only rarely have
efforts been made to establish any form of human rights culture
throughout the organisation or in any of its related public authorities
and other bodies subject to the Act. The knowledge remains locked
in the heads of the handful of departmental officials dealing
directly with implementation of the Human Rights Act.
Since the implementation of the Act in October,
the building of a "human rights culture" has effectively
slipped out of sight within government because:
there is no human rights policy or
organisation within the government which is actively promoting
the issue; and
most departments (except for the
handful with a significant number of court cases) do not appear
to view the Human Rights Act as a priority issue. It has become
The emphasis on mainstreaming the requirements
of the Human Rights Act means that the Home Office has only a
limited role (and no long-term involvement) in directing/supporting
departments' activities concerning a "human rights culture".
A similar approach is being adopted by the Home Office for the
Freedom of Information Act, but here long-term support and guidance
for departments on the implementation of the Act and its associated
"culture of openness" will be provided by the Information
Commissioner. No such structure exists for the Human Rights Act.
It is difficult to see how a "human rights culture"
can be established and maintained throughout government in the
absence of a body to "champion" and keep the issue alive.
It might be "out of character" for the Home Office to
perform such a role. The government has recently clarified in
a paper for the Human Rights Task Force the extent of the responsibilities
of the Cabinet Office for co-ordinating issues concerning the
Human Rights Act. The Cabinet Office is home to a number of specialist
units dealing with cross-cutting issues where it exerts considerable
influence if not direct control over the work of departments.
Human rights and the building of a "human rights culture"
could benefit from such an approach. Alternatively, the function
is also one that could be performed by a "Human Rights Commissioner"
with advisory and scrutiny powers akin to the Information Commissioner.
2.4 A "human rights culture" for
The Home Office has made efforts to influence
public perceptions about the Human Rights Act. Its main aims appear
to have been:
to win public support for the Human
Rights Act and to counter criticism that the Act might cause "damage"
to the legal system and traditional values in society; and
to reduce the expectations of potential
users and deter ill-conceived use of the Act.
During the run up to October, the Human Rights
Task Force actively promoted the positive benefits of the Act
and tried to correct some of the more outlandish media reports
concerning the use to which the Act might be put. These efforts
enjoyed some success; substantially aided by the careful manner
in which the courts have since used the Act which has greatly
limited the scope for "scare stories".
Selling a "human rights culture" to
the public is an extraordinary difficult task which is no longer
being pursued with any real vigour. The publicity campaign organised
by the Human Rights Task Force is now winding down. The Home Office
Human Rights Unit continues to offer a very useful "help-desk"
service for those who know where to look for help. Otherwise,
it is left to non-government organisations (where resources are
scarce) to promote the benefits and use of the Human Rights Act.
It is not known whether any analysis or research on public attitudes
towards the Act or human rights generally is being conducted within
or outside government.
There are clear credibility problems for any
government organisation attempting to sell a "human rights
culture" to the public. The Home Office was quick to latch
on to the advantages of using the Human Rights Task Force for
this purpose but the Task Force will cease to exist after April.
There is nothing to take its place.
In other countries and in related areas in the
UK (racial equality, equal opportunities and disability) dedicated
commissions exist which fulfil this promotional and inspirational
role. The activities of the Northern Ireland Human Rights Commission
indicate what can be done with the right body in place.
3. POINTS THE
3.1 Implementation of the Human Rights Act
What structures are required within government
to secure the long-term implementation of the Human Rights Act?
Is there sufficient commitment to seeing through the task?
Is there a "human rights" agenda beyond
the Human Rights Act? How long is required for "bedding down"
the Human Rights Act? Does this, in fact, preclude preparatory
work on or consideration of other human rights issues? What is
the government's position and timetable for consideration of such
3.2 Human Rights Culture
What is meant by a "human rights culture"?
Is it no more than establishing a "culture of compliance"
with the ECHR or should it embrace the much broader array of human
rights accepted by the UK?
What structure is required to secure a "human
rights culture" within government? Who should be actively
promoting such a culture within government and monitoring progress
With the Human Rights Task Force due to complete
its work in April, how (and by whom) will a "human rights
culture" be promoted to the public?
A simple enquiry by the Committee on these points
would require the government to give thought to these issues.
To play the devil's advocate, to require the government to justify
the need for "human rights culture" might also focus
attention on the present apparent gap between its ambitions and
The Constitution Unit
School of Public Policy
University College London
2 March 2001