Joint Committee on Human Rights Appendices to the Minutes of Evidence


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 as:

    —  RED—strong chance of successful challenge in an operationally significant or very sensitive area. Action must be taken as a priority.

    —  YELLOW—reasonable chance of challenge, which may be successful. Action should be taken if possible.

    —  GREEN—little 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 of information).

  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 6).

  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 this occurs.

  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 regime.


  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 culture"?

  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 the ECHR.

2.2  Promoting a "human rights culture"

  There are two elements to promoting a "human rights culture":

    —  human rights becoming part of the process (rules of the game) of government and political life; and

    —  human rights becoming part of public consciousness.

  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 government

  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 happen—the 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 "yesterday's problem".

  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 UK

  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.


3.1  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 issues?

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 within departments?

  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 deeds.

The Constitution Unit

School of Public Policy

University College London

2 March 2001

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