Joint Committee On Human Rights Appendices to the Minutes of Evidence

19.  Memorandum from Walker Morris, Solicitors

  As requested, I set out now in brief the summary of my submission, which is that no Commission is necessary at this stage because it would dilute the ownership and promulgation of human rights from existing public authorities. The identified responsibility for education etc would lie with the new Commission and public authorities would inevitably react to its creation by concentrating their efforts on other issues, thereby diluting the inculcation of human rights throughout all areas of public life.

  In addition, it is not clear to me what would be gained by a Commission being set up now. There are many different Commissions dealing with many different areas of responsibility. If they were combined, would there be a dilution of that expertise? The practical difficulties would be enormous and the cost of assimilation would be high. It would be hard to identify any positive and lasting gain from the proposed creation, apart from the emergence of a new monolith. The existing Commissions are staffed by recognised experts, and can react within fairly short timescales to developments within their own fields. A new (and necessarily large) body might not have the same degree of flexibility.

  I enclose the list of 10 questions and my answers, prepared on behalf of Walker Morris, which take into account our experience in the field of human rights, but it does not reflect the views of our clients or conflict with our duties of confidentiality to them.

  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;

    —  advising and assisting people who claim to be victims of violations of their Convention rights;

    —  developing expertise in human rights;

    —  bringing legal proceedings on human rights issues in the public interest?

  So far we have had nine months of cases since the implementation of the Human Rights Act in England and even longer for Scotland, Wales and Northern Ireland. A growing body of caselaw is emerging, on all sorts of topics and so far only a few Declarations of Incompatibility have been made, in the fields of mental health, consumer credit and planning (subject to ongoing proceedings). The initial thought of the Government was that a human rights culture should spread into all areas of public life. All public authorities have accepted their responsibilities under the Human Rights Act (some with more grace and speed than others) and now must implement the decisions of the courts in their interpretation of the rights and freedoms from the British judiciary. To create a Commission might give the message that it is the responsibility of the Commission for matters such as fostering a culture and educating people in human rights and developing an expertise in human rights issues, which would shift the emphasis and ownership of these issues from the public authorities who until now have embraced and compiled with their obligations.

  The issue of access to justice and advising and assisting people who claim to be victims of violations of their Convention rights, plus bringing legal proceedings on human rights issues in the public interest are more problematic. Inevitably the media has focused on the sensational cases which have been brought (for a variety of purposes), and not on the ones where important and long-lasting judgements have considerable consequences.

  The grant of legal aid by the Legal Services Commission in human rights cases has been the subject of considerable debate within practitioner circles, whereby the issues have been identified (in the public interest or only of interest to their clients), the victims have come forward but the funding has not been granted in some worthwhile matters. Whether a Commission is the answer, or better working within the LSC is a matter of debate but it might be worthwhile for the Committee to invite the LSC to give evidence to it, and raise questions as to why legal aid had not been forthcoming in cases where challenges were expected, such as health, procurement, the extent of public authority status and non-compliant subordinate legislation.

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

  If a Human Rights Commission were established, it should be given a role and remit to answer to Parliament and I would invite the committee to be a part of the scrutiny process as to the working and effectiveness of the Commission. It would itself be a Public Authority and its decisions could be challenged by those unhappy with its actions. It would be unwise for the Committee to deal with individual cases (as it does not do at the moment) but a framework should be worked out so that the Commission did answer for its actions so that there was democratic accountability.

  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 issue, to which issue or issues do you think that the Commission should give priority?

  I would not order the priority of functions for the Commission. It should be free to set its own priorities and should not be hampered by having a policy straightjacket imposed. Our experience here has shown that human issue issues arise on an ad hoc basis, and should be pursued as the client wishes. Otherwise, a client might have a perfectly good and sensible claim which did not fit the internal criteria or policy priority, leaving the client without a mechanism for pursuing the claim.

  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).

  There are separate legal jurisdictions within the United Kingdom and Ireland and ever more devolution decisions whereby services are affected, decisions taken and developments arising. Over time, these will increasingly diverge and the people within the UK will inevitably wish to know why they are being treated in a different way to the people in another part of the UK. However, it may well be that if the other jurisdictions established their own Commissions that a considerable case could be made for having a separate one for England too.

  Having separate Commissions will not address the issue of divergent decisions, but equally, having one Commission for all the UK might mean that it dilutes its effectiveness trying to cover the various jurisdictions simultaneously. It seems to me that this is a political question for debate and decision by the democratically elected representatives within all jurisdictions.

  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)?

  The UK Human Rights Commission (assuming it was given some terms of reference relating to both casework and policy issues) could be a partner organisation to the Commissions in Northern Ireland, Scotland and Wales, which would need to reflect the same terms of reference and responsibilities. If jurisdictional issues arose, then the Committee should consider whether the UK Commission should be limited to considering strategic issues and leave casework considerations to the jurisdictional Commissions.

  If a Human Rights Commissions 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?

  It seems to me that there are very practical difficulties in merging the existing Commissions and Commissioners, with disparate staff, existing expertise and specialisms, a thorough knowledge of their area of responsibility and different ways of working, different criteria for taking on cases etc. The issue of differing cultural values within each organisation is one which should not be overlooked and merging all of the above organisations might be an unsuperable task.

  There is a considerable body of legislation in all these fields, accompanied by subordinate legislation, caselaw and interpretation issues. A new layer of human rights placed on top would add to the burden already borne by business, commerce and public authorities, all of whom have enough to do in providing services or pursuing their businesses.

  Any degree of overlap might start a saga as to whose responsibility it would be to deal with an issue, or even worse—having no body claim responsibility for an issue leaving the whole situation unclear and wholly unsatisfactory. The current situation (of having so many commissions) is clearly not perfect but it does have the merit of being clear. Our clients, who have to deal with the practical problems posed by new legislation (which increases every Parliamentary year) are unclear that there would be any value in creating a Human Rights Commission, whether it co-existed with existing commissions or has items excluded from its remit. They are clear it would pose new and increasing burdens, at a time when government has made a commitment to reduce the bureaucratic load it imposes.

  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 to Northern Ireland, Scotland and Wales?

  If a UK Human Rights Commission were established, then it needs to be accountable for its actions. Ideally it should be answerable to Parliament through a minister, and at this stage probably the Lord Chancellor as now the lead Minister for Human Rights. An annual report to Parliament on its activities, aims, effectiveness and future issues would deal with the issue of accountability, being presented by the Lord Chancellor (and his House of Commons Minister) and then debated and accepted by each House.

  The Chair and members should be appointed by public advertisement (similar to appointments for all public offices) through an independent Panel (similar to the Judiciary Appointments) who would then be responsible for staff recruitment. I would fund the Commissions in the same way that all existing Commissions are funded, by allocation of resources of Parliament and continued application for funding on a cycle of a five-yearly plan, which would provide some certainty for the managers and staff, as a shorter cycle would involve more time being spent annually on financial as opposed to human rights activities.

  Each jurisdiction could apply the above model to its own system with the appropriate Minister commending an annual report on activities to the Assembly/Parliament and acceptance of the report after suitable debate.

  For the question of funding then clearly each jurisdiction should consider what level of financial backing would be appropriate but a formula could be worked out, based on population, which would begin the process of ascertaining the financial framework for each Commission. There also would need to be a degree of assimilation for funding and staff transfers from the existing Commissions, plus start-up costs.

  In the light of your answers to Question 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?

  I do not propose that at this stage a body or bodies should be created, for the reasons set out above and would not wish to enter into a dialogue as to the levels of staffing or other costs.

  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 existing Commissions have a considerable range and variety of powers, and keeping tabs on their existing duties and powers for clients is a mammoth task. Our clients have no desire to add to their current responsibilities. The existing Commissions are all public authorities and take account of human rights issues within their existing frameworks and duties. Our clients likewise include human rights as part of their decision-making processes.

  The stated aim of the government was to inculcate a human rights culture into public life, and all the existing Commissions have acted in accordance with this. For a single body to be created, then a proven gain would have to be demonstrated. I remain unconvinced that a single Commission would be as effective as the existing Commissions are.

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

  It is not clear to me what would happen if there were various Human Rights Commissions set up, if there was a disagreement between those Commissions within the various jurisdictions. No method of dispute resolution has even been mooted. It would not be hard to think of an example. It might easily happen that treatment of children within a care situation was unacceptable to the UK Commission but another Commission considered that the treatment was harsh but within acceptable limits. How would the children feel knowing that in another part of the UK, they would not be treated in that way but also knowing that they have to endure it where they are? How are staff to deal with the situation?

  The possibility of uncertainty or the highlighting of disparity breeds lack of confidence in the system and this is something, which needs to be considered carefully as it, might further undermine confidence in our democratic institutions.

  It is also not clear to me what will happen if someone felt that the Commission had acted incorrectly. Is there to be an appeals system? Are there to be Commissioners? What degree of freedom of information should people expect from the Commission which might of course be advising victims, who would expect such advice to be confidential.

  There would be some merit in seeing how the Northern Ireland Human Rights Commission is established and functions over a period of time, to see if there are lessons to be learned. Without such initial consideration, there is every chance that a Human Rights Commission could be unwieldy, inflexible and counter-productive to the aim of ensuring human rights is an everyday issue in decision-making in public life.

9 July 2001

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