Joint Committee On Human Rights Appendices to the Minutes of Evidence

2.  Memorandum from Disability Rights Commission


  1.  The Disability Rights Commission (DRC) strongly supports the creation of Human Rights Commissions. Such Commissions should have the following functions:

    —  To promote public awareness of human rights through media and educational institutions and other appropriate means.

    —  To provide advice and training to public and private bodies to bring their practice and procedures within human rights standards.

    —  To advise Government and Parliament on the conformity with human rights standards of legislation and the current policies and practice of public authorities.

    —  To use litigation strategically.

    —  To advise individuals and groups who believe their rights have been infringed.

    —  To conduct formal investigations into the conduct of bodies carrying out public functions where it is believed they are contravening the ECHR.

    —  To become centres of expertise on international and European human rights law and use this expertise to develop the human rights culture in England, Wales and Scotland.

  2.  There should be separate Human Rights Commission for Scotland. In addition, there needs to be either a Commission for England and Wales, or separate Commissions for England and Wales. This point requires further consultation.

  3.  The Human Rights Commissions should co-exist with the equality commissions and should work closely with them.

  4.  Proposals for a single equality act and an Equality Commission covering all areas of discrimination are wholly separate issues. The DRC opposes the merging of the existing Commissions into a single Equality Commission.

  5.  The Human Rights Commissions should be independent of government. The Commission should be adequately resourced and have effective powers necessary for the Commission to carry out its remit.

  6.  The England/Wales Human Rights Commission should be accountable directly to Parliament through the Joint Committee on Human Rights.


  The Disability Rights Commission was set up in April 2000, as an independent statutory agency, following the passing of the Disability Rights Commission Act 1999, with the objectives of:

    —  Working to eliminate discrimination against disabled people.

    —  Promoting equality of opportunity for disabled people.

    —  Encouraging good practice in the treatment of disabled people.

    —  Advising the government on the working of legislation.

  From its inception the DRC has recognised that human rights are of enormous interest to disabled people. In September 2000 we published a guide to the Impact of the Human Rights Act on Disabled People, to encourage understanding of and awareness of the importance of the HRA. The fact that the original print run of 6,000 had been distributed within six months is testimony to the great resonance that human rights have for disabled people.

  The Report highlights a number of ways in which disabled people's human rights are affected:

    —  Article 2, which guarantees the right to life, will have a direct impact on the service disabled people can expect in the health system. It will strengthen their equal right to medical treatment in life-threatening circumstances and it should prevent more routine decisions being made on the basis of the inferior quality of life of disabled people. It should lead to a greater consistency in delivery of services and may have some impact on the allocation of resources within the NHS.

    —  Article 3 protects disabled people against inhuman or degrading treatment. There are many examples where disabled people have been neglected, abused or treated with cruelty in residential homes and prisons and cases where the standard of community care has been seriously deficient. Many public authorities may be affected by this Article.

    —  Article 5 provides for the right to liberty. It is relevant to people with mental illness who are compulsorily detained and to other disabled people in institutional or community care. In the latter instance, Article 5 will pose dilemmas for the courts and for pubic authorities in balancing safety with individual rights, particularly for people with learning difficulties or with Alzheimer's disease who may need the protection of restrictions being placed on their freedom. Persons detained under the mental health laws must be released once they are no longer of unsound mind. Their mental condition must be periodically reviewed. In these respects the UK Mental Health Act needs reform.

    —  Article 6 provides rights of due process in criminal and civil cases. It imposes standards in the determination of social security disputes and complaints in the health service as well as on courts and tribunals. In giving an individual greater rights to be heard and possibly greater rights to legal representation it will benefit those disabled people for whom access to the law has been virtually impossible.

    —  Article 8 protects the right to private and family life and Article 12 the right to marry and found a family. These articles have widespread implications for disabled people and will challenge the current policies and practices of local authorities. Rights to fertility treatment, the sterilisation of young women with learning disabilities, the rights of severely disabled people to live independently, and rights of adoption are among the issues that will arise. Its main impact for disabled people will be in ensuring that local authorities treat disabled people equally with non-disabled people in the delivery of services. It may lead to extra protection in areas of housing and access to medical records and other information in the hand of public authorities.

    —  Disabled people who find difficulty in accessing information held by public authorities are likely to be assisted also by Article 10 which guarantees freedom of expression.

    —  Protocol 1 protects rights of property, of education and the right to participate in elections. While educational authorities must respect the philosophical convictions of parents of children with special educational needs Protocol 1 is unlikely to strengthen a child's right to a place in a mainstream school. Since children also have rights under the Act it will impose new requirements on the Special Educational Needs (SEN) Tribunal to consider the child's views. Together with new laws to prohibit discrimination in education, the Protocol will help to outlaw practices which marginalise disabled children in schools and deny them access to further and higher education.

    —  The right to property may have implications for the treatment of the property of disabled adults in care and to their receipt of welfare benefits. It should help in ensuring a speedy determination of their claims for benefit.

  We are limited in the work that we can do to promote the human rights of disabled people both by our limited resources but also by statute. Our remit does not extend to enforcement of the Human Rights Act, although this was a power recommended by the Disability Rights Taskforce. The Secretary of State can extend the DRC's enforcement remit by regulations, and we have asked him to do so in respect of individual disabled people in taking forward cases under the HRA. His response will take into account the deliberations of the Parliamentary Committee.

  Whilst we are fully supportive of the need for Human Rights Commissions, we would still welcome the extension of our powers to enable us to assist individual disabled people in enforcing their human rights (we explain below how this might work).


  We have set out our answers to the key questions in the Consultation Document in groups, retaining the order that they were asked. There are a few questions that we have not answered, as they are not within our remit.

    (a)  What, if anything, do you think a Human Rights Commission might add to the current methods of protecting human rights in the United Kingdom? In particular, are there useful functions in connection with protecting human rights and developing a culture of human rights which do not fall within the remit of any existing agency in the United Kingdom, such as:

    —  Fostering a human rights culture in the United Kingdom.

    —  Education in human rights.

    —  Advice and assistance.

    —  Developing human rights expertise.

    —  Bringing Legal Proceedings on Human Rights Issues in the Public Interest.

  The Government itself recognised the enormous cultural change that the incorporation of the European Convention of Human Rights into UK law aimed to bring about. However, the mere passage of a law is not in itself sufficient to bring about this level of change, nor to ensure that individuals' rights are respected, nor to ensure that there is clarity regarding the requirements of that law. The Government recognised this when it established the Disability Rights Commission to ensure that the goals of the Disability Discrimination Act—the abolition of discrimination against disabled people and promotion of an equal society—are achieved.

  Similarly, the Human Rights Act needs a single authoritative body to promote a cultural shift, to advise public authorities on their responsibilities and to provide strategic enforcement of rights.

  There is a clear need to develop concerted awareness of the provisions of the HRA across public authorities in the United Kingdom, as well as amongst the public at large. Whilst there are certain groups and organisations that can and do carry out work in this field, none have an overarching role across all sectors and issues. Nor do existing agencies have sufficient funds to carry out the necessary functions.

  There is a need to foster a human rights culture, and an enormous unfilled demand for information, education and training.

  At present, enforcement of the HRA is piecemeal and wholly inadequate—confined to either those rich enough to be able to fund litigation themselves or eligible for legal aid. This can lead to an over-emphasis on certain aspects of the law, such as its impact on the criminal justice system, and leave very many people feeling that their human rights are not meaningful as they cannot be enforced.

  We have been made keenly aware of the absence of a central source of advice and strategic enforcement when we discuss the Act's significance with groups of disabled people.

  Human Rights Commissions should have the power to conduct strategic litigation to challenge, reform or clarify the law including:

    —  Test cases on behalf of individuals or a group of complainants.

    —  Litigation in its own name.

    —  Interventions/the submission of expert "amicus" opinions in proceedings brought by others.

    (b)  If a Human Rights Commission were established, how should its role and functions relate to those of this Committee?

  An HRC would assist the Joint Committee in carrying out its parliamentary functions.

    (c)  In what order of priority would you arrange the functions of such a Commission. If you think that a Commission should examine a range of issues, to which issue or issues do you think that the Commission should give priority?

Priority of Functions

  We consider that at least initially the key function of a Human Rights Commission should be to promote public awareness of human rights through use of the media and other outlets, and through providing advice and training to public. Our experience is that this must go hand in hand with strategic legal enforcement. Without at least the potential threat of litigation, many organisations will not give sufficient priority to the issue.

  Other essential functions are:

    —  To advise Government and Parliament on the conformity with human rights standards of legislation and the current policies and practice of public authorities.

    —  To advise individuals and groups who believe their rights have been infringed.

    —  To conduct formal investigations into the conduct of bodies carrying out public functions where there it is believed they are contravening the ECHR.

    —  To become a centre of expertise on international and European human rights law.

Priority of Issues

  Clearly this will be for the HRC to establish. We would only assert that the human rights of Britain's 8.6 million disabled people, particularly those who are most isolated and vulnerable, need to be given sufficient prominence.

    (d)  If a Human Rights Commission were to be established, should there be a single body with a jurisdiction extending to all parts of the United Kingdom, or separate bodies with territorial responsibilities?

    (e)  If there were to be a Human Rights Commission with responsibilities for the whole United Kingdom (whether or not it operated alongside other bodies with responsibility for just one part of the United Kingdom), what relationship should there be between its work in respect of Northern Ireland and the work of the Northern Ireland Human Rights Commission (and similar Commissions in Scotland and Wales if they are established at some time in the future)?

  A separate Commission is needed for Scotland because of the fact that the HRA specifically covers the Scottish Parliament and the Executive independently of its application to UK and GB institutions and governing bodies. These human rights issues arising out of the re-establishment of the Scottish Parliament should be best considered by a Scottish body, rather than a UK body. A specifically Scottish Commission will be best placed to operate effectively within the Scottish arena and the agendas and timetables which are set therein.

  A Scottish Human Rights Commission will also be best placed to work alongside and to develop effective partnerships with Scottish bodies including the Scottish Parliament, Scottish Executive, the legal profession and other essential stakeholders.

  In addition, we do believe that there is a need for the development of a specific Scottish awareness campaign about the provisions of the HRA. We believe that this is best handled at a Scottish level, and a Scottish body would potentially be best placed to take this forward and to reflect the unique Scottish political, legal, economic, social and geographical landscapes.

  To sit alongside the HRCs for Scotland and Northern Ireland, there should either be a Commission for England and Wales or separate Commissions for England and Wales. We believe that more discussions need to be had in Wales about the desirability of a separate Commission for Wales.

    (f)  If a Human Rights Commission were established, how should its work relate to that of other bodies with special responsibility for particular rights, such as the Information Commissioner, the Equal Opportunities Commission, the Commission for Racial Equality, the Disability Rights Commission and the Equality Commission for Northern Ireland? In particular:

      (i)  Should a Human Rights Commission perform functions now performed by existing specialist Commissions, or should it co-exist with them?

If they were to co-exist, what roles should they perform in areas where their responsibilities might be expected to overlap?

  We would believe that the creation of Human Rights Commissions would be complimentary to the work of the equality Commissions, which have a vital role in combating discrimination against specific groups of people.

  The DRC promotes equality of opportunity for disabled people in the private and public sectors, and in particular assists the enforcement of the Disability Discrimination Act. This encompasses a completely different range of issues confronting disabled people than are covered by the Human Rights Act.

  The HRA sets out rights in areas such as family life, and individual rights to privacy, free speech and assembly. The Disability Discrimination Act will generally not apply to these issues. We would expect a Human Rights Commission to promote and enforce disabled people's human rights as it does other sectors of the population.

  Nevertheless, as the Human Rights Act includes a right against discrimination in the enjoyment of ECHR rights, we recognise the possibility of some overlap. Article 14 of the European Convention on Human Rights provides that the enjoyment of Convention rights are to be secured without discrimination on any ground but does not guarantee a free standing right to freedom from discrimination.

  We believe that there would be a continuing role for the DRC in commenting on issues regarding human rights as they affect disabled people and we would expect to work closely with the Human Rights Commission in UK and Scotland on issues of common interest.

  In addition, where an individual facing discrimination on grounds of disability raises an issue under both the Disability Discrimination Act and the Human Rights Act the DRC want to be able to fund specific cases (provided they meet our established criteria). We are therefore seeking the extension of the Commission's power to support cases under section 7 Disability Rights Commission Act. On occasions this might involve jointly supporting cases with the Human Rights Commissions in the field of disability which had a human rights aspect.

  As is the case between the Equality Commission and Human Rights Commission in Northern Ireland, agreed protocols between the DRC and the Human Rights Commissions would be useful in clarifying areas of over-lapping interest and responsibility.

  We would emphasise that proposals for a single equality act and an Equality Commission covering all areas of discrimination are wholly separate issues to the creation of an HRC. It is unhelpful to merge the two sets of issues. The DRC is opposed to the merging of the existing Commissions into a single Equality Commission, although we have from our inception sought to maximise the benefits of co-operation with the Commission for Racial Equality and Equal Opportunities Commission.

      (ii)  If a Human Rights Commission were to co-exist with the existing equality commissions, should issues relating to equal opportunities be excluded from the remit of the Human Rights Commission and be given to the Equality Commissions?

  No. it is essential that equality is seen as integral to a Human Rights Culture. Article 14 of the European Convention on Human Rights enshrines the principle of non-discrimination in relation to the enjoyment of Convention rights and it would therefore make no sense to separate its enforcement from those of the other Articles.

  The area of over-lap with existing Commissions is not as great as might at first appear because equality of opportunity per se is not covered by the Human Rights Act; just equality to the rights set out in the European Convention.

  As well as this key issue of principle, there are also practical considerations. Section 19 of the Human Rights Act requires Ministers to certify that future legislation is compatible with the Convention or to make a statement that he or she is unable so to certify but wishes nevertheless to proceed with the Bill.

  Unfortunately, there is no comparable provision in the Disability Discrimination Act. The DRC will scrutinise parliamentary Bills for their impact on disability equality but we do not have the statutory basis for holding Ministers accountable for introducing legislation which is incompatible with it. The HRC's role in this respect would be invaluable, and we would look to working closely with them on legislation which might impact on the human rights of disabled people.

    (g)  If a Human Rights Commission were to be established, how should its independence of Government be preserved while ensuring an appropriate type and level of accountability? In particular:

      (i)  How should its Chair, members and key staff be appointed?

      (ii)  How should its funding be provided?

      (iii)  To whom should it be accountable (for example, to a parliamentary body)?

      (iv)  How should the matters mentioned in (a), (b) and (c) take account of devolution to Northern Ireland, Scotland and Wales?

  We believe that appointments to the Commissions should be made through a process of open public appointments conforming to the "Nolan Principles of Public Life", by the Westminster and Scottish Parliaments (and if appropriate by the Welsh Assembly). It will be essential that the Commission reflects the diversity of society, including disabled people.

  In view of the scope of the Human Rights Act it may be appropriate for the Chair and members of the England/Wales Human Rights Commission to be appointed by the Joint Committee.

  The funding of the Commission should be provided by Parliament, ideally beyond the control of any particular government department.

  The England/Wales Human Rights Commission should be accountable to Parliament (through the Joint Committee on Human Rights).

    (h)  In the light of your answers to Questions 1 to 7, what is your estimate of the level of staffing which would be required by the body or bodies you propose and what the annual cost might be?

  Funding must be adequate—we are not in a position to estimate.

    (i)  If a Human Rights Commission were to be established, what powers should it have?

  Human Rights Commissions should have the power to conduct strategic litigation to challenge, reform or clarify the law including:

    —  Test cases on behalf of individuals or a group of complainants.

    —  Litigation in its own name.

    —  Interventions/the submission of expert "amicus" opinions in proceedings brought by others.

  The ancillary power to require people to provide information enforce disclosure of documents is necessary.

  They must also be empowered to conduct investigations; to issue Codes of Practice; to conduct research; to advise Government regarding legislation; and to engage in a range of activities to heighten awareness of human rights.

July 2001

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