Joint Committee On Human Rights Appendices to the Minutes of Evidence

14.  Joint Memorandum from the Bar Council and the Law Society

  The Law Society is the governing body that represents and regulates 80,000 solicitors in England and Wales. It carries out a broad spectrum of activities ranging from law reform and practice advice to professional education and dealing with complaints about solicitors. This submission has been approved by its Executive Committee.

  The Bar Council is the governing body that represents and regulates barristers in private and employed practice. Like the Law Society it carries out a broad range of activities in relation to professional education, standard setting, dealing with complaints and promoting the role of the independent Bar. This submission has been approved by its Law Reform Committee.

  Both the Law Society and the Bar Council participated fully in the work of the Home Office Human Rights Task Force (the Task Force), which was disbanded earlier this year. Both worked with other Governmental and non-Governmental bodies represented on the Task Force with aim of ensuring an effective introduction to the Human Rights Act 1998.

  The Bar Council and the Law Society welcome the opportunity to provide written evidence to the Joint Committee on Human Rights.

  In paragraph 3 of its Report on the United Kingdom dated 27 July 2000, the United Nations Human Rights Commission paid tribute to the contribution made to the protection of human rights in the UK by various NGOs. The importance of that contribution continues to be felt. Both the Bar Council and the Law Society believe that they play their part in that protection. Yet it is inevitable that each NGO will focus on only a limited area of human rights—sometimes on a single issue. However well informed or active NGOs may be, the Law Society and the Bar Council believe that they cannot act as an effective substitute for a Human Rights Commission.

  Neither is the all-party Parliamentary Committee of Human Rights on adequate substitute. It is unlikely to have the time to conduct a thorough review of the laws and practices of the UK; nor is it likely to be adequately resourced to research and comment upon the human rights implications of legislation as it is applied across the UK. Accordingly we support the introduction of a Human Rights Commission.

  Our detailed evidence in support of this approach is presented by way of answers to the questions set out by the Committee.

Question 1.

  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 protection 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:

    (a)  fostering a human rights culture in the United Kingdom;

    (b)  education in human rights;

    (c)  advising and assisting people who claim to be victims of violations of their Convention rights;

    (d)  developing expertise in human rights;

    (e)  bringing legal proceedings on human rights issues in the public interest?


  The Law Society and the Bar Council support the establishment of a Human Rights Commission (HRC), the purpose of which should be not only the protection of human rights, but also the promotion of an understanding of those rights and the monitoring of compliance with them.

  The Human Rights Act was one of the most fundamental and far-reaching reforms enacted during the life of the last Parliament. It is imperative to establish a body whose main aim is to foster a human rights culture in order to ensure that respect for a written code of fundamental rights and further development of such rights become embedded in the constitutional arrangements of the United Kingdom.

  The Task Force and the Home Office Human Rights Unit ("HRU") accomplished the important tasks of producing guidance, training, information and advice both for public authorities and for the public at large. They also helped to promote awareness of the Act and to counter the negative publicity which accompanied the bringing into force of the Act. The need for this work did not cease when the Act came into force. The extent to which the public sought assistance from the HRU is powerful evidence of continuing demand for such assistance.[38]

  There is a continuing need for a body able to give authoritative independent (non-governmental) advice on human rights matters, both to public authorities and the public at large. There is also a need, as we identify below, for independent monitoring of the work of public authorities and of the activities of the courts.

  The promotional functions will, it is hoped, assist public authorities to develop best practice in a manner which is consistent across the country (and between the different nations of the United Kingdom). Respect for human rights is best fostered in this way, rather than by the piece-meal, costly and unreliable route of development of human rights through litigation. Indeed, the promotion of good human rights practice and an understanding of human rights principles is one of the best ways of avoiding costly and misconceived litigation.

  In addition to the promotional function, a HRC would be well-placed to contribute constructively to the litigation process by providing advice and assistance to litigants or intervening in appropriate cases. A HRC would be better placed than the Legal Services Commission (even with the assistance of its Public Interest Advisory Panel) to identify appropriate cases for support. It will thus ensure that public funds for litigation are better targeted and that hopeless and misconceived cases will not be pursued. It would be better resourced than non-governmental organisations for the purpose of intervening in proceedings to assist the courts. The Committee can learn important lessons in this respect from the experience of the Equal Opportunities Commission in relation to the promotion and enforcement of European Community sex equality law. The EOC has been very effective in using its powers strategically to bring proceedings in its own name and to support individuals in a manner which has led to very significant developments in the law. In addition, a Commission might be empowered to bring test cases independently of the need for an applicant to proceedings to be a "victim" for the purposes of section 7 of the Human Rights Act.

  Without the existence of a HRC, the promotion and protection of human rights would fall either to the existing rights-based Commissions or to non-Governmental organisations such as Liberty and Justice, or to the Government itself. There are good reasons why these alternatives are not sufficient.

  The existing Commissions do not cover the full extent of the rights protected by the ECHR. They were established for the purpose of providing expert resources in relation to areas raising specific problems.

  The NGOs simply do not have the resources required to undertake the functions of a HRC. Their experience in the run-up to 2 October 2000 showed that there was a huge demand for HRC-type activities which they simply cannot meet on top of their other commitments.

  Although the Government itself must continue to promote human rights, it is not and will not be seen as independent and objective.

  Above all human rights are intended primarily to regulate the relationship between the individual and the state. Promotion and enforcement should be undertaken by an independent and expert body.

  The Bar Council and the Law Society agree with the objectives set out in question 1.

  Additionally, we consider that the HRC should have power to intervene in existing proceedings in the same way as the Equal Opportunities Commission and the Commission for Racial Equality, where the power to intervene is used selectively in cases of significant public interest.

  The HRC should have resources enabling it to undertake comparative research, particularly in relation to the developments both in the European Court of Human Rights and in other jurisdictions, to be presented to the Court. As can be seen from the development of the European Charter of Fundamental Rights, human rights have to be seen in an international context where developments in one modern liberal democracy inform and assist the debate as to how developments should take place in other countries. The HRC would also be well placed to publicise international treaties as recommended by the UN treaty bodies.

  The HRC could provide a valuable function by researching developments both in this jurisdiction and elsewhere and publishing reports on its finding. In essence, the HRC would be a source of information both for the Government and for the public, becoming the focal point for the public to contact for advice and information on human rights issues. The legal profession would want also work with the HRC to develop greater expertise on human rights issues.

Question 2.

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


  The Committee's role is to consider and report on matters relating to human rights in the United Kingdom and matters relating to remedial orders. Its terms of reference exclude consideration of individual cases, it is not intended to have a direct promotional function and, of course, it will not conduct, support or intervene in litigation.

  Moreover the Committee's expertise will be critical in the future in the Parliamentary scrutiny of ministerial statements under section 19 of the 1998 Act. It is not appropriate that the Commission should question ministers in relation to such statements. That is properly the task of a Parliamentary body. Though of course in appropriate instances the Committee should be able to draw on the expertise of the Commission.

  Thus we consider that the HRC should have a much more outward-facing role in the context of protecting and promoting human rights through education, conduct of proceedings etc. An essential part of this role would be a right to submit evidence to the Committee on relevant issues, including those relating to the scrutiny of particular areas of governmental activity or of individual legislative proposals.

  Although we shall come on to this in more detail in our response to Question 7, we consider that the HRC should submit an annual report to the Committee.

Question 3.

  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?


  We consider the order of priority as set out in Question 1 to be perfectly adequate, though any legislative statement of the Commission's functions should allow for flexibility so that the priorities could be altered if necessary. We consider the undertaking of comparative research to be a useful adjunct to Q1(b) (education in human rights) and intervention in proceedings to be an adjunct to Q1(e) (bringing legal proceedings).

  Arguably, if Q1(a)-1(d) work well, so that a human rights culture is embraced within the UK, with people understanding not only their own rights, but those of others, there should be less need for the HRC either to bring or intervene in legal proceedings concerning alleged abuses of those rights.

Question 4.

  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 in England, Scotland, Wales and Northern Ireland, or both a United Kingdom body and bodies with territorial responsibilities? (The Northern Ireland Human Rights Commission must continue to exist, as this is one of the requirements of the United Kingdom's agreement with Ireland about the future of Northern Ireland.


  Given the current trend to devolve powers it might seem anomalous to have a single body with jurisdiction extending to all parts of the UK. Without seeking to generalise, it is likely that the rights issues of major significance to, say, the people of Northern Ireland, may be very different from the issues of major significance to people in Wales. It is important to the effective promotion of human rights culture that the body in question should reflect regional or national variations. Further, each part of the United Kingdom has its own legislative body with different powers, functions and areas of responsibility, which should be "shadowed" by an equivalent expert body. This would have the added advantage of ensuring that the offices could be quite small and able both to examine and deal proactively and reactively at speed, to issues of concern at local level.

  On the other hand, much of the legislation which will fall to be tested against the HRA will be UK-wide. The critical issue to ensure relevance. Thus if there is a single body it should be required to act regionally and if there are a number of such bodies they should be required to work closely together to share information and effort (for instance in research and the development of education programmes) to maximum efficiency.

  The question is finely balanced and we prefer, at this stage, only to identify the issues, without making a firm recommendation.

Question 5.

  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)?


  As we have developed in answer to the previous question we consider that generally the HRC in each country would need to keep in close contact and co-ordinate its activities with each other, particularly for the purposes of sharing research.

Key text below this rule.

Question 6.

  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:

    (a)  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?

    (b)  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?


  The issue of inter-relationship between different bodies is important since human rights may cross the boundaries of numerous bodies. For example, a HRC may well be called upon to consider matters which raise important issues of privacy (currently within the remit of the Data Commissioner), access to information (within the remit of the Information Commissioner) and press freedom (in which the Press Complaints Commission may have an interest). Issues of discrimination will be of concern to one or more of the statutory Commissions.

  While we consider that the HRC should be a separate body, working alongside other rights-based Commissions, this interrelationship argues for a strong and well-defined statutory relationship to ensure that there is proper consultation and communication. Inevitably, there will be overlap, although there is already some overlap in relation to the remits of Commissions such as the Equal Opportunities Commission, the Commission for Racial Equality and the Disability Rights Commission.

  Particularly in the early years of operation, the role and remit of the HRC and its relation and other rights-based Commissions should be kept under review.

  The Law Society and the Bar Council see strong arguments against excluding equal opportunities altogether from the remit of the HRC. The Convention prohibits some grounds of discrimination which fall outside of the remit of the existing Commissions, for example discrimination on the grounds of age, religious or sexual orientation. These matters are of developing importance as can be seen from the new Framework Directive on Discrimination.

Question 7.

  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:

    (a)  how should its Chair, members and key staff be appointed?

    (b)  how should its funding be provided?

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

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


  The Bar Council and the Law Society consider that the appointment of a Chair and members must be undertaken with the utmost care and with full regard to equality of opportunity.

  We recommend that the appointment of Chair and members is undertaken by the Secretary of State following, strictly, the Code of Practice and Guidelines laid out by the Office of the Commissioner for Public Appointments in relation to ministerial appointments.Key text below this rule.

  In line with the provisions of the Northern Ireland Act 1998, we recommend that the Chair of the Commission is appointed for no more than five years at a time and that other Commissioners are appointed for no more than three years at a time. The statutory provisions in relation to the resignation by or dismissal of a Commissioner as laid out in the Northern Ireland Act 1998 should apply to all Human Rights Commissioners within the United Kingdom.

  Views are not sought specifically on the issue of remuneration, but we suggest that the Secretary of State should be authorised to direct the payment of remuneration, allowances and fees and sums for the provision of pensions, again, following the provisions of the Northern Ireland Act 1998.

  Funding should be provided by Government. For the HRC to fulfil the mandate which we envisage, it is essential that it is funded properly by Government and is able to raise funds from other sources (for example, from the EC) as necessary. The Joint Committee would be well-placed to ensure that the Government does meet the funding needs of the HRC.

  The HRC—or, if separate bodies are established, each of the HRCs (England, Scotland, Wales, and Northern Ireland)—should be accountable to the Joint Committee and required to submit an annual report on the performance of its functions to the Joint Committee. The independence of the Commission from political interference is of course essential.

Question 8.

  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?


  It is imperative that the HRC is adequately resourced. If HRCs were established in each of England, Scotland, Wales and Northern Ireland, we would envisage a series of small organisations anticipating and responding to the priority needs of their own countries. A UK-wide organisation would, however, still need to be able to deal with the needs of each country so and, would need sufficient staff to enable it to do so.

  We are unable to comment further in relation to levels of staff and annual costs, save to say that in budgeting for the Commissions the following at least will be necessary: research, education, other outreach work, litigation and publicity. It is also important that some provision should be made for communication with other Human Rights organisations such as the Council of Europe, the United Nations Committees and the European Commission.

Question 9.

  Some Commissions currently operating in fields related to human rights have a range of powers. For example, they might be empowered to conduct investigations; to require people to provide information; to issue notices requiring people to cease conduct which the Commission considers to be unlawful; to conduct legal proceedings; to assist other parties to legal proceedings; to issue Codes of Practice; to conduct research; and to engage in a range of activities designed to heighten awareness of issues within their remits. If a Human Rights Commission were to be established what powers should it have?


  The HRC should have power:

    —  to conduct investigations;

    —  to require people to provide information to conduct legal proceedings;

    —  to assist other parties to legal proceedings. In this, we include both supporting individuals by providing them with legal representation and funding individuals to bring cases;

    —  to conduct research;

    —  to engage in a range of activities designed to heighten awareness of issues within their remit;

    —  to advise on the extent of rights, with a view to the development of a Human Rights Charter;

    —  to intervene in legal proceedings in the public interest. We note here that the CRE and EOC have intervened in many cases in the past. The Northern Ireland Human Rights Commission has not been able to intervene on every occasion. Accordingly the scope for such interventions needs to be carefully established;

    —  to conduct investigations, following allegations of systematic abuse, not only in public bodies, but also in non-Governmental bodies;

    —  to provide education in human rights issues, both in schools and in Government departments and agencies, including all staff within the Civil Service.

Question 10.

  Are there other relevant issues or considerations which have not been covered in answers to earlier questions?


  We would conclude only by suggesting that, through a system of education to promote and foster a human rights culture in the United Kingdom and by working proactively to prevent breaches or continuing breaches of human rights, a Human Rights Commission is likely to prevent the need, in many cases, for costly litigation.

July 2001

38   The HRU web site recorded over 15,000 hits per week in November 2000 and, it is believed, more in October 2000. Back

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