A Human Rights Commission for the UK?
INTRODUCTION
1. The Human Rights Act Research Unit at
the School of Law, King's College, is funded to monitor and evaluates
the Human Rights Act (HRA). Our work to date has concentrated
on its application in the courts. Our findings are produced as
bi-monthly tables in the European Human Rights Law Review, as
statistics on the Home Office's Human Rights Unit website and
as occasional articles in Public Law and other journals.
2. The Unit (formally known at the Human
Rights Incorporation Project) worked closely with the Home Office
on the broad approach to incorporating the ECHR into UK law, submitting
papers and attending meetings with officials and ministers to
that end. We proposed that the courts be empowered to make a formal
Declaration of Incompatibility where it was not possible for them
to reconcile Acts of Parliament with ECHR rights but that they
should be under a duty to interpret legislation compatibly where
possible. We further proposed that ministers should make a statement
of compatibility (or otherwise) when introducing Bills and that
the courts should explicitly be designated public authorities
to bring the common law within the scope of affected law. I attach
one of the submitted papers, drafted July 1997. Others can be
supplied on request.
3. The model we developed built on my earlier
work at the Civil Liberties Trust.[49]
This involved drafting a UK bill of rights which did not allow
the courts to overturn Acts of Parliament but gave a major scrutiny
role to a proposed Joint Committee on Human Rights. We called
this "democratic entrenchment" of a bill of rights.
4. The impetus behind this approach was
two-fold. First, to develop a uniquely British model for incorporation
of the ECHR (or a bill of rights) which would be acceptable to
government, the judiciary and human rights NGOs. Excellent and
sustained research and lobbying in favour of incorporation or
a bill of rights over many years (most notably by Lords Lester
and Scarman) had stalled over concerns across the political spectrum—and
among judges themselves—about overturning parliamentary
sovereignty, or more particularly about giving the domestic courts
the power to strike down statutes. This was the approach famously
adopted by America and Germany and it was widely, but mistakenly,
assumed to be the inevitable consequence of a bill of rights for
the UK. To quote from a briefing by my Unit to the Home Office
in June 1997:
"The `British model' is an attempt to address
this difficult issue (of parliamentary sovereignty) in a way which
significantly increases the protection of fundamental rights without
unacceptably encroaching on the democratic sphere".
5. The second aim of the `British model'
was to develop an approach which recognised that the adoption
of a bill or rights or the incorporation of a human rights treaty
is potentially a major cultural, as well as legal, shift. To this
end the model deliberately sought to establish a "dialogue"
between the executive, legislature and judiciary on where the
boundaries between conflicting rights—or individual rights
and the common good—should lie. The aim was to weave acceptance
and understanding of the ECHR into the democratic process rather
than to isolate it as the preserve of judges, remote from the
general public. To quote from the June 1997 briefing again:
"Geoffrey Palmer, the former Prime Minister
of New Zealand who introduced the NZ Bill of Rights, described
it as providing `a set of navigation lights for the whole process
of Government or public life to observe'. If the `British model'
is effective the courts should be a place of last resort. This
argument may well sound more convincing if, as in New Zealand,
an effective Human Rights Commission were established to scrutinise
existing laws and powers, provide `good practice' guidelines to
the public sector and provide public education on the delicate
balance of rights and responsibilities within the ECHR".
6. Ministers have endorsed this approach
both on introducing the Human Rights Bill to parliament and on
giving evidence to this Committee. In the House of Lords the then
Home Office Minister, Lord Williams, maintained that:
"[This] is not, as the Lord Chancellor,
pointed out simply `You will be able to get your rights enforced
quickly and cheaply because you will not have to make the journey
to Strasbourg.' It is much more important than that. Every public
authority will know that its behaviour, its structure, its conclusions
and its executive actions will be subject to this culture|It is
exactly the same . . . following the introduction of, for example,
race relations legislation and equal opportunities legislation".[50]
In the same debate the Lord Chancellor, Lord Irvine
maintained that through the Act "A culture of awareness of
human rights will develop".[51]
In giving evidence to this Committee, Lord Irvine defined such
a culture as "one which shows a high degree of sensitivity
on the part of our public institutions to the obligations that
derive from the Act".[52]
In an earlier session of the Committee the former
Home Secretary, Jack Straw, stated that:
"What we have set out to do is to mainstream
the Human Rights Act so that it becomes embedded into the culture
of government in this country and the culture of public authorities,
rather than being seen as an offshoot".[53]
7. The problem is that, in contrast to the
equalities legislation to which Lord Williams compared the Human
Rights Act, there is no statutory body to promote the human rights
culture which ministers repeatedly state is the intended goal
of the Act and which the unique characteristics of the "British"
model were specifically aimed at fostering.
PROPOSAL
1. The model for incorporating the ECHR
into UK law reflected in the 1998 Human Rights Act (HRA) which
my unit helped to develop included a Human Rights Commission as
an essential element. In my view, the Act cannot accomplish the
cultural—rather than legal—shift it was designed to
achieve without a statutory body to advise on its implications,
monitor its effectiveness and promote the values which underlie
it.
2. A number of other organisations whose
submissions I have been fortunate to receive before writing this—notably
Charter 88, Justice, Liberty and the Institute for Public Policy
Research—have set out detailed views on the role, functions,
jurisdiction and composition of a Human Rights Commission. Many
of their proposals overlap and in the main any disagreements are
either technical or a question of emphasis. I am in agreement
with the main thrust of these proposals which have been enriched
by the excellent research conducted by the IPPR on human rights
commissions around the world. I have no doubt that a free standing
Human Rights Commissions with all the functions you list in question
1 of your Call for Evidence would greatly strengthen the effectiveness
of the HRA and its relevance for people's lives. There is little
point in my repeating the answers to your questions given by these
other bodies.
3. The emphasis in this evidence, therefore,
relates to question 3 of your Call for Evidence: In what order
of priority would you arrange the functions of a Commission.
In my view the priority at this time must be as follows:
(a) fostering a human rights culture in
the UK through guidance and training to public authorities
and those private and voluntary bodies deemed to have a public
function.
(b) education and promotion on human rights
both formally through advising the QCA and other curriculum bodies
on the human rights unit of the new citizenship component of the
curriculum and through broader public education and promotion
of the values underlying the Act.
(c) systematic monitoring and evaluation
of the Act in the courts, among public authorities and other
relevant bodies to inform the guidance, training, education and
promotion functions of the Commission, to help correct any unintended
consequences of, or misunderstandings about, the nature of the
HRA and to advise on changes to law or policy where appropriate.
4. A Human Rights Commission—or Human
Rights Council—limited to these powers would, in my
view, perform the "bottom line" functions without which
there is a danger the Human Rights Act will be viewed at best
as a technical, legal measure understood and used only by lawyers
and at worst as an inducement to citizens to litigate. The
opportunity will have been lost to use the HRA as a vehicle to
improve public services through guidance that emphasises that
the obligation to treat others with respect and dignity underpins
all human rights values.
5. While the power to take test cases, advise
"victims", scrutinise legislation and carry out investigations
are all highly desirable, it is fair to say that to some degree
these functions are carried out by NGOs [54]
and the Joint Committee on Human Rights respectively. It would
however be sensible for any Commission or Council to act as a
first stage clearing house for bodies which carry out functions
it does not directly perform itself, including those offering
legal advice and representation.
6. The essential functions which are by
no means adequately provided for currently are:
(a) guidance and training;
(b) education and promotion;
(c) monitoring and evaluation.
The Human Rights Task Force and more specifically
the Home Office's Human Rights Unit, provided excellent guidance
and training to public authorities. In addition individual officers
and smaller units in departments across Whitehall have been responsible
for outreach to the public bodies for which they are (sometimes
nominally) responsible. It is fair to say that all the NGO members
of the Task Force were unanimously of the view that despite the
best efforts of the dedicated staff at the Human Rights Unit many
public authorities were grossly under-informed—or just as
damagingly misinformed—about the Act. A survey carried out
by the IPPR in June 2000 amply reinforced this message. Twenty
four of the 60 public authorities questioned had no information
about the HRA or had heard of it but did not think it would apply
to them. Affected private and voluntary bodies are even more under-informed.
7. The Human Rights is moving from the Home
Office to the LCD. While there is no doubt that the LCD will do
all it can to promote the Act within its limited resources, building
on the excellent service it has provided to the courts, there
is a danger that in the eyes of some stakeholders this move will
reinforce the impression that the HRA is only relevant to the
tiny proportion of the population who seek remedies through the
courts rather than heralding a shift in culture to pre-empt litigation.
8. Excellent introductory material on the
HRA was produced to accompany its launch, but otherwise the general
public have received almost no information on its terms, and more
specifically on the values of rights and responsibilities which
underpin it. There is no statutory body to amplify the meaning
behind judgements from the European Court of Human Rights or the
domestic courts (and associated authorities like the Parole Board)
so that decisions like McKerr et al v UK or the release
of Thompson and Venables are received with no adequate explanation
by a body of comparable weight to the CRE, EOC, or DRC. It is
then left to the government to field a response when quite often
the government is a protagonist in the case in question.
CONCLUSION AND
SUMMARY
Others have made the case for a fully fledged
Human Rights Commission with which I concur. In this evidence
I propose that as a minimum what is needed is a Human Rights Commission
or Council for England and Wales to promote a human rights culture
through guidance, education and evaluation. This would complement
and reinforce the work of other Commissions with whom there could
be an informal federal structure. It is essential that this body
be a statutory NDPB to give it sufficient authority. It could
potentially be set up with reserve powers to cover other proposed
functions in the future. Without such a body it is exceedingly
unlikely that the HRA will begin to achieve the Lord Chancellor's
stated goal of providing a "culture of awareness of human
rights".
*Francesca Klug is a Senior Research Fellow at King's
College School of Law, was a member of the Government's Human
Rights Task Force and is the author of Values for a Godless Age,
the story of the UK's new bill of rights, Penguin, 2000.
29 June 2001
49 A People's Charter, Liberty's bill of rights, 1991. Back
50
House of Lords Hansard (3 November 1997) 1228, 1308. Back
51
Ibid, 1228. Back
52
Minutes of Evidence, Joint Committee on Human Rights, 19.3.2001. Back
53
Minutes of Evidence, Joint Committee on Human Rights, 14.3.2001. Back
54
Although the latter are grossly underfunded for this purpose
and would need a considerable injection of funds before "victims"
and "potential victims" could be said to have access
to their rights under the HRA, regardless of their means. Back
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