Joint Committee On Human Rights Appendices to the Minutes of Evidence

17.  Memorandum from David Bean QC, Murray Hunt, Raza Husain, Alison Macdonald, Ken Macdonald QC, Jonathan Marks, Tim Owen QC, Rabinder Singh, Daniel Squires and Rhoori Thompson

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 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 (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?

  There are a number of different models a Human Rights Commission can take in relation to the functions it performs. In our view a Commission should undertake various roles, for the reasons set out below. We think it important to stress however that the roles should not be seen as either inseparable or indispensable and it would be better to have a Commission that performs some of them than to have no commission at all.

  The functions we envisage a Commission undertaking can be divided into the following categories (1) education, (2) advisory and legislative (3) investigatory. We do not however believe that the Commission should possess a "casework" function.

  (1)  In relation to education in the widest sense, a Commission should be at the forefront of co-ordinating the creation and fostering of a human rights culture in this country. The Human Rights Act should be judged as much by its ability to change the way people conceive of themselves as citizens, and their relationship with the state and one another as by its directly legal impact. The Human Rights Act must also represent a set of principles of good administration for public authorities, principles which they positively aspire to promote and protect and do not regard with fear and defensiveness. In this regard a Commission could play a central role, outside the sphere of litigation with its inevitable contentiousness, in fostering human rights thinking and awareness. This should be through the production of educational material for schools and other institutions, organising training for public authorities (not just for their lawyers but for everyone such as social workers, planning officers and teachers), and celebrating achievement in the human rights field. Public bodies, such as local authorities, should also be able to turn to the Commission for specific human rights information and assistance, enabling them to ensure that they comply with human rights standards, while at the same time are not overly cautious. The provision of such assistance at an early stage would hopefully avoid litigation at a later date. In our view a Commission would be ideally placed to co-ordinate these various educational activities. Its independence of both government and various non-governmental organisations would mean that it would run less of a risk of having its activities coloured by its own agenda, or at least being perceived in such a way. In this regard, as indeed in others, the Commission should not focus solely upon the Human Rights Act. It also has an educational role in relation to the United Kingdom's other human rights obligations, both domestically and internationally. It could provide information about the treaties to which we are a party, how they operate and how they are progressing.

  (2)  In its advisory capacity we would envisage the Commission providing a supportive but critical voice in debates about proposed legislation. One of the great weaknesses in our present system is that inadequate time and information is available to enable Members of Parliament to make informed decisions as to the human rights implications of proposed legislation. This leads to tensions between respect for Parliamentary democracy and adequate protection for human rights. It is left to the courts to "cure" human rights violations contained in legislation, possibly caused by mere oversight. The Commission in its advisory capacity could play a central role in fulfilling the commitment contained in the Bangalore Principles to an independent judiciary and a legislature which is sensitive to and complies with human rights obligations. In this regard the Commission would have the advantage of an expertise in human rights, coupled with independence from both those in government seeking to promote legislation and from pressure groups seeking to influence it. If human rights are to inform our laws, which should be one of the central aims of the Human Rights Act, they should do so in a co-ordinated and joined up way. A body such as the Commission would be ideally placed in this regard. It would be hoped that it could work with both central government and bodies such as the Law Commission in ensuring that not only does legislation comply with the Human Rights Act on a piece by piece basis, but that this is done with an eye to the bigger picture of the whole legal framework. It would also have the effect of rendering the legislative process in relation to human rights more transparent. The current procedures, under section 19 of the Human Rights Act, relating to legislative compatibility produce statements that are not especially informative and which do not disclose the legal advice upon which they are based. The Commission, operating in a more open way, would both enhance the quality of the legislative process and also better equip those in the courts and beyond to understand the human rights implications of legislation. Furthermore the Commission would be able to review developments in the field of human rights in international law, and assist in the reporting obligations under various treaties to international organisations. Again this should enable a more holistic approach to be taken by Parliament and Government to human rights.

  We believe that a Commission should have investigatory powers (like those enjoyed by the Northern Ireland Human Rights Commission under section 69(8) of the Northern Ireland Act 1998). The Commission could investigate either patterns of alleged abuse or serious single allegations. It should then submit reports to the government containing both its conclusions and recommendations. In relation to the conduct of investigations we believe that various powers will need to be given to the Commission, for example to call witnesses, order disclosure of documents etc. The ability to conduct research on areas such as the impact of law and policy on the human rights of juveniles or asylum seekers would enable the Commission to approach such sensitive issues and focus debate in a dispassionate and better informed way than is sometimes currently the case.

  Our view on balance is that the Commission should not have the capacity to bring cases. We accept that there are arguments both ways, and there is no doubt that the equality commissions have played an important role through a litigation strategy. Nevertheless we think that a capacity to bring cases may swallow up the Commissions other important functions and might compromise its independence in certain sensitive areas.

Question 2.

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

  In our view it is important to distinquish between the roles of a Parliamentary Committee on Human Rights and a Commission outside Parliament. Their roles are complementary. The Parliamentary Committee should continue to scrutinise legislation to avoid breaches in human rights and be directly involved in ensuring that Parliament takes a co-ordinated and informed approach to human rights. While the Commission should be available to assist in this function it should be primarily a role for the committee. Since most cases, historically at least, of human rights breaches have involved not legislation but administrative practices or rules of the common law, the Commission would play a central role in keeping them under scrutiny. Furthermore the role of education and the facilitation of a human rights culture would be better achieved by a body that is not tied to the legislation or to those directly involved in politics to better maximise the message that human rights are universal and distinct from politics.

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 that the Commission's training function should be its priority in its early phase, simply because there is so much to do to bring those who work in public authorities and in the voluntary sector etc up to speed. Much valuable work was done in the two years between enactment of the Human Rights Act in 1998 and October 2000, when it came fully into force. But the people who were trained were largely lawyers and judges. We think it is too early to say at this stage what the Commission's priorities should then be in terms of specific issues.

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 for 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).

  In our view there should be separate Commissions for England, Wales, Scotland and Northern Ireland. For the reasons set out in the attached paper by Aidan O'Neill QC, of the Scottish Bar, the Human Rights Act operates in very different ways in the various countries due to their increasingly different constitutional frameworks. The remedies available for human rights violations, and the legislative structures are sufficiently diverse that a UK wide Commission would probably be perceived to be insufficiently close to the people and the legislature in Scotland, and perhaps Wales, to carry out its envisaged tasks effectively. On the other hand a purely Scottish or Welsh Commission would be insufficiently close to the centres of Westminster and Whitehall to make an appreciable difference in those areas of domestic law, such as discrimination, which remain largely within the province of the United Kingdom Parliament. In our view the solution is to have a separate Scottish Commission which is linked to the Commissions of England and Northern Ireland, and to give consideration to a separate Commission for Wales. The Commissions would be able to pursue their own agendas, but to co-operate when necessary, just as the Law Commission of England and Wales works in tandem with the Scottish Law Commission.

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 responsibilities 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)?

  See answer to question 4.

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?

  In our view the Human Rights Commission should co-exist with the other Commissions. On a pragmatic level the merging of Commissions is likely to generate opposition and the efforts required to overcome it would be best spent elsewhere. Furthermore the work of the existing Commissions are focussed primarily upon private entities or public entities undertaking private functions, such as employment or the provision of goods and services, whereas a Human Rights Commission would focus mainly upon public bodies exercising public power. It should therefore be possible for the Commissions to work together, within different if overlapping spheres, just, indeed, as it would be hoped that the Commissions of the various parts of the UK would do so. In relation to equal opportunities it should be possible to allocate responsibility along the lines suggested above with the Human Rights Commission focussing on essentially "public" issues and the other equality Commissions on private ones. It may be that, ultimately, there should be a single equality commission, embracing race, sex, disability and other discrimination issues. The Northern Ireland experience suggests that this is a possible model for the future in the rest of the UK as well. However, whether or not the discrimination bodies should be merged into a single equality commission should not, in our view, detract from or delay the need for a human rights commission. Again the Northern Ireland model suggests that it is perfectly possible to have a human rights commission alongside an equality commission.

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?

  While we have no specific suggestions in relation to the mechanisms of appointment we are of the view that careful consideration should be given to the benefits of appointing non-lawyers to certain key positions. Such people, whether prominent academics outside the sphere of law or other leading "civil society" figures could play an important role. Not only would their expertise provide an important diversity for the Commission, but it would also constitute an important reminder of the way in which human rights and human rights thinking can and should permeate society generally and should not be seen as being merely confined to the courts and for the benefit of lawyers.

  (b)  how should its funding be provided?

  In our view the Commission should be primarily publicly funded. While it is acceptable for it to receive private funding from charitable foundations, such as those that currently make donations to civil liberties organisations, money from private bodies that might have a political or pecuniary interest in its work should be refused to avoid any risk of compromising, or appearing to compromise, independence.

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

  It should not be accountable to any political body. It should be a statutory body with its independence guaranteed in its parent statute.

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

  We have nothing further to add here to what is said above in relation to devolution more generally.

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?

  We have no particular experience or expertise to offer on these questions but we would be surprised if the annual cost exceeded £5m.

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?

  See question 1 above

Question 10.

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

We have nothing to add.

18 July 2001

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