19. Memorandum from Walker
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
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
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
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 worsehaving 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
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