Joint Committee On Human Rights Sixth Report

Scrutiny of Practice

134. We noted above that some positive work to involve human rights in the culture of public authorities is being done, most notably by District Audit. This will put human rights into the regulatory framework, confirming it as something to be taken seriously by local authorities and health bodies. However, the regulatory and inspectorate bodies in the public sector do not profess expertise in human rights. Their concerns, as we have found throughout, are focussed on bare compliance and warding off challenges in the courts. They cannot offer engaged and expert advice on human rights issues themselves. This points to the potential for a partner organisation, such as a human rights commission, to make a positive contribution to enabling such organisations, and through them the front line services, to develop a more rights-based approach to their work—to develop a new relationship between the state and its citizens.[99]

135. A commission should be able to give human rights a focus, resources and a degree of institutional stability not found recently in central government, which could provide a base from which it might have a realistic chance to devise and disseminate a more credible human rights culture for public authorities. In overseeing the promotion of a culture of human rights, a commission would have to be able to work effectively through regulatory and representative bodies for different sectors of public activity.

136. We have considered whether it would be appropriate to impose a positive obligation on public authorities to promote human rights. This duty might be equivalent to the duty already imposed on specified public bodies, when carrying out their functions, to have due regard to the need not only to eliminate unlawful racial discrimination but also to promote equality of opportunity and good relations between people of different racial groups.[100] However, there is less of a need for a new statutory duty than for the active promotion of the understanding that Convention rights already impose certain positive duties on public authorities.

137. The positive obligations cannot be construed to include a duty to produce a strategy for promoting human rights within their organisations and in the work they do. There might, we believe, be some value in a human rights commission encouraging public authorities to produce such a strategy, but it would be unlikely to be useful, certainly at this stage, to impose a statutory duty on them to do so.


138. The issue of redress for violations of rights, perhaps surprisingly, drew less comment from the bodies which submitted written evidence to us in 2001. But the notion of access to justice encompasses more than the promotion of litigation, and is an essential element of the educational as well as the enforcement work of any commission. Advice and assistance must be considered when looking at the fundamental tasks of a commission. Essentially, consideration of the case for meeting unmet needs in this area centres around four potential functions for a commission: providing advice to the public about what their rights are and how they can secure redress for violations or prevent potential violations; assisting in finding alternative methods of dispute resolution (which could be a key part of spreading the culture of human rights); perhaps providing financial assistance to enable individuals to take cases in their own name; and intervening in, or (more controversially) taking cases in, the commission's own name.

Adjudication of Complaints

139. Although international comparisons have to be treated with some caution in relation to this function, they do suggest that there are problems where individual complaints are regarded as the core work of a commission. The commissions in Australia[101] and New Zealand[102] have been largely seen as complaint-driven—in the view of many observers, to their disadvantage, and in both cases steps are now being taken to refocus them away from this function.[103] In India, the National Human Rights Commission receives thousands of complaints, and is in some danger of being overwhelmed by its caseload. Complaint investigation and resolution is its principal occupation. In South Africa the Human Rights Commission has power to examine complaints, and it can also settle cases by mediation and conciliation. The Northern Ireland Human Rights Commission and JUSTICE both urged that a commission should not have judicial or quasi-judicial powers to consider complaints in individual cases.

140. What is clear is that any commission must weigh the advantages of complaints as a channel of communication with the public against the risk of its being swamped by them and becoming reactive rather than proactive. We do not believe the commission we propose should have any adjudicative function in relation to complaints of violation of rights. In respect of Convention rights, these must remain a matter for the courts to determine. In respect of other rights not directly enforceable in law, it would in our view be inappropriate to hand a quasi-judicial function in this way to a body which is not a court, a legislative body or a branch of the Executive.

Mediation and Conciliation

141. On the whole, we detect support for the commission to have some function in relation to the provision of alternative dispute resolution. We were told in evidence—

¼ in Mind's view there is a compelling need for similar support to that provided by the Disability Rights Commission (DRC) on disability discrimination issues ¼ human rights issues ¼ might well be addressed through a low level response rather than through court action. So for instance immediate problem solving, alerting the responsible authority of their legal responsibilities, providing information and guidance as to how to obtain redress or a change of practice would all benefit the individual. It would also educate and promote a human rights culture within public authorities such as the NHS, social services, the police and the prison service.[104]

Courts, notably in the Cowl v. Plymouth case, have made it clear that they expect disputes to be resolved, if possible without recourse to legal action. It will therefore become increasingly important that complaints procedures and similar dispute resolution mechanisms are able to consider human rights issues and to act in a manner which satisfies the requirements of Article 6(i). The need for training, advice and publicity about the implications of the Act therefore goes beyond the legal profession.[105]

A mediation service provided by a human rights commission is an opportunity to further the protection of human rights and to gain public support. For individuals to participate in making decisions about their own rights is genuinely to 'bring rights home.' The informality and privacy of the process combined with the greater options for resolution of the complaint could be empowering for complainants, allowing them to shake off their 'victim' status.[106]

142. Although there are those who are sceptical of the value of this function, we believe that the evidence of its use by the Disability Rights Commission is on the whole encouraging. Many people have extolled the value of a form of mediation or conciliation which is not offered by the adversarial nature of court proceedings. However, it may be that a mediation or conciliation service would be less successful or appropriate where, as is likely to be the case in the majority of cases under the Human Rights Act, one party to the dispute is a public authority, though this view would not be supported by the recent evidence that government departments had saved £2.5 million in legal costs by using mediation to settle disputes rather than going to court.[107]

143. We will also wish to examine these and other issues further, and to examine how an alternative dispute resolution function would fit alongside the structure of a Human Rights Commission. It would be important to ensure that the Commission's involvement in dispute resolution would complement other elements of its work. A possible model is the conciliation service established by the Disability Rights Commission, which is run by an independent organisation on behalf of the Commission.[108]

144. Mediation and conciliation can be seen as a wider function than simply resolving individual violations or deprivations. In New Zealand, the Human Rights Commission has actively sought to conciliate in cases of racial tension and violence in local communities. The Indian Commission has also played a part in addressing inter-communal strife, and in monitoring and seeking to prevent a lack of even-handedness in public authorities' treatment of participants in and victims of such disturbances.

Formal Investigations

145. The power to conduct general inquiries into human rights issues in relation to public policy or the practices of public authorities could be a valuable weapon in the armoury of a commission.[109] But this function should not be confused with more detailed enforcement powers such as those currently given to the anti-discrimination commissions in Great Britain to conduct formal investigations, to issue non-discrimination notices, and to apply for injunctions to stop persistent discrimination. While such powers make sense in the context of the detailed statutory provisions relating to unlawful discrimination, our view is that these type of powers are unlikely to be appropriate to the promotion and protection of human rights in more general terms.

Legal Powers

146. In broad terms, the three British equality commissions have duties to work towards the elimination of discrimination, to promote equality of opportunity, and to keep the legislation under review. They have wide powers in relation to law enforcement, including providing legal advice and assistance, conducting formal investigations, issuing non-discrimination notices, bringing compliance proceedings in their own name, and applying for judicial review where a public authority has acted in an unlawfully discriminatory manner.

147. The British equality commissions see the ability to assist in bringing cases as complementary, though essential, to their promotional work. It is also the experience of a number of human rights commissions that assisting or intervening in the courts can be a valuable tool for a human rights commission, and that the involvement of a human rights commission can help to develop human rights jurisprudence.

148. Annex B contains three tables summarising the duties, functions and powers of various equality commissions and human rights commissions.[110]

149. To what extent should a Human Rights Commission of the kind we envisage have law-related powers, for example of the kind exercised by the British equality commissions or by the Human Rights Commissions in Northern Ireland and the Republic of Ireland? We have found this a difficult and important issue upon which we propose to consult further. The purpose of the following section of our Report is to summarise the issues as we have identified them in the course of our work.

150. We have already explained our reasons for considering that the Human Rights Commission should have the power to conduct investigations and inquiries into human rights issues. However, we do not envisage that the primary function of commission should be adversarial or concerned principally with the enforcement of human rights law. We have also explained that there is a need to avoid the commission becoming overwhelmed by a need to deal with a mass of individual complaints of breaches of human rights, as has happened in some other countries.

151. We are convinced that the commission should have the power to apply to the court for permission to intervene as a friend of the court in order to give advice in proceedings initiated by other parties that involve or are concerned with human rights. As the independent public authority created as a guardian of human rights, it is appropriate for the commission to be able to assist the court in this way.

152. The more difficult question is whether the commission should have the power (a) to provide assistance to parties to legal proceedings; or (b) to take cases in its own name.

153. On the direct provision of individual legal advice and assistance, we consider that such a power might be advisable but we have no concluded view. It would provide a useful tool for the commission in clarifying the law in strategic cases. As experience in Northern Ireland demonstrates, such a power would have to be used sparingly, and its use would have to be linked to the development and promulgation of a clear litigation strategy. It should probably be confined to cases for which other forms of legal aid and assistance were not available. At present, civil legal aid is available in cases taken under the Human Rights Act and, as was noted by the Lord Chancellor in his evidence to us, human rights cases are afforded some special consideration where, as will frequently be the case, they are found to raise a matter of public interest.

154. Since we have no agreed view about the desirability of a power to provide direct legal advice and assistance in strategic cases, we wish to consult more widely on this issue.

155. A power for the commission to take cases in its own name would most naturally arise by means of judicial review proceedings seeking a declaration that a given administrative decision or statutory rule was incompatible with human rights law.

156. Currently, everyone with a sufficient interest is entitled to apply for judicial review of the decisions or the conduct of a public authority. Such challenges may be brought where there is a human rights dimension.

157. In the case of statutory bodies, such as the equality commissions, this power is not expressly conferred by statute but is implied where such bodies can show a sufficient interest in the subject matter. Any litigant can rely, in any judicial review case, on the various international human rights treaties by which the United Kingdom is bound for a number of purposes. First, a litigant can use a right to argue that a decision, act, rule or policy is irrational, or breaches the litigant's legitimate expectation, and so contravenes one of the ordinary principles of judicial review. Secondly, a litigant can use a right to argue for a particular interpretation of legislation, on the presumption that Parliament does not intend to legislate inconsistently with the United Kingdom's international legal obligations. Thirdly, a litigant may use a right to argue that the court should subject the challenged decision, act, rule or policy to particularly intense or anxious review.

158. Until the enactment of the Human Rights Act, an applicant in judicial review proceedings could rely upon the Convention rights, by which the UK was then bound by international law. Section 7 of the Act changed that. It provides that a person who claims that a public authority's actions are made unlawful by the Act, may bring proceedings, or rely on Convention rights in legal proceedings, but only if he is a victim of the unlawful act. This is a tighter test than merely that of having a sufficient interest in the proceedings.

159. The explanation for this, given during the passage of the Act by Mr Mike O'Brien MP, the Parliamentary Under-Secretary of State for the Home Department, was that "our aim is to grant access to victims. It is not to create opportunities to allow interest groups ¼ to venture into frolics of their own in the courts. The aim is to confer access to rights, not to license interest groups to clog up the courts with test cases".[111]

160. Whilst we understand those reasons for this statutory limitation upon judicial review, it has given rise to the somewhat odd situation that a human rights commission could judicially review a public authority if it had a sufficient interest but could not cite, in such a case, the Convention Rights incorporated in UK law by the Act unless it, simultaneously, qualified as a victim of the alleged unlawfulness. Thus the absence of an express statutory power to initiate judicial review for breaches of the Human Rights Act would mean that the commission could take judicial review proceedings for any alleged unlawfulness, in which it had a sufficient interest, except those caused by breaches of the Act which is at the pivot of its sphere of activity.

161. It is strongly arguable, too, that the commission as a public authority with responsibility for promoting human rights in the public interest and publicly accountable for its actions not only to the courts but also to Parliament is not in the category of concern to the government. Experience of judicial review proceedings brought by other public authorities, such as the equality commissions and the Northern Ireland Human Rights Commission, does not suggest that they venture into frolics of their own or clog up the courts with test cases. As the Council of Europe's Commissioner for Human Rights recently noted—

At present, the power of the [Northern Ireland Human Rights] Commission to bring proceedings involving law or practice relating to the protection of human rights is limited so that it cannot rely on the Convention rights when bringing proceedings in its own name. This limitation reproduces the victim requirement set out in the European Convention on Human Rights in respect of the European Court. The victim requirement was introduced to the European Convention in order to prevent abstract cases being brought before the European Court and to avoid the proliferation of cases brought by unrelated third parties ... The main difficulty would appear to arise ... in respect of powers that would enable the Commission to bring cases that would result in abstract rulings on the human rights compatibility of legislation. Whilst such a power would enable potential incompatibilities to be identified, as it were, preventively ... the resemblance of such proceedings to abstract constitutional challenges would significantly alter current judicial practise in the United Kingdom, and in a way that its current judicial structure is, perhaps, ill-equipped to deal with. It ought, however, to be possible to allow the Commission to challenge legislation on the ground of incompatibility with the Convention rights, if, though not a victim itself, it has brought proceedings in its own name in the place of an identifiable victim (whether potential or indirect) or class of victims. Such a provision would keep human rights rulings tied to the protection of a given individual's or set of individuals' rights, without unduly limiting the Commission's ability to raise compatibility issues.[112]

162. If, as we recommend, the commission is given the power to conduct inquiries into human rights issues, it is also arguable that it should, where necessary, be able to seek declaratory relief in relation to important issues arising from its findings, where those findings are rejected on the basis of legal arguments about the interpretation and application of the Human Rights Act. Otherwise, the only way in which the commission would be able to resolve the issue in legal proceedings would be by finding an individual victim in whose name the matter could proceed, and seeking to intervene as an interested third party. That would be an artificial and cumbersome way of enabling important issues of legal policy and principle to be resolved.

163. These are powerful arguments. On the other hand, we are anxious not to recommend a litigious body. We do not want the Commission to spend either its time or its resources in unnecessary and avoidable litigation. Nor, as we have said repeatedly , do we believe that court proceedings can play a major role in our principal aim, and the commission's principal task—of generating a culture of respect for human rights. It would therefore be a power which we would expect to be exercised sparingly, whilst being aware that no future commission could be tied to any limitations whatsoever on its use.

164. In addition, we can see that if a public enquiry carried out by the Commission, demonstrated that a policy or procedure was, in its view, a breach of Convention Rights, it would be in a strong position to persuade the government of that view, without recourse to the Courts. If there were a clear injustice, the commission would be likely to carry public opinion with it and it might better fulfil its role of generating a human rights culture by initiating debate around the need for change, than by seeking to impose compliance, on the relevant public authority, through the courts. Compliance, simpliciter, with the letter of the Human Rights Act, is not, as we have said, what we perceive the commission's role to be.

165. These contrasting lines of argument have persuaded us that we should consult more widely on this issue, too, before reaching a concluded view.

Mandate of a Commission

166. In summary, we conclude that the following powers and functions are essential for the human rights commission we propose—

  • to conduct and commission research and provide financial or other assistance for educational activities in connection with promoting understanding and awareness of human rights;

  • to conduct inquiries into matters of public policy and practice relating to human rights (with the power to have access to information needed for an effective inquiry);

  • to give guidance to, and promote best practice in, public authorities in relation to human rights;

  • to offer guidance and advice to Ministers and to Parliament in connection with human rights;

  • to be able to publish reports on any of the above matters;

  • to assist in the provision of advice and assistance to members of the public on ways to find help to protect or vindicate their rights;

  • to be able to support and promote access to alternatives to litigation in disputes relating to the protection of human rights;

  • to be able to apply to the courts for permission to appear as amicus curiae in proceedings that involve or are concerned with human rights; and

  • to be able to intervene as a third party in legal proceedings relating to questions of principle involving human rights.

We intend to consider further whether the following powers and functions are desirable for a commission—

  • to provide assistance to individuals to take cases relating to human rights questions;

  • to be able to take cases in its own name;

  • to be able to seek judicial review in its own name.

We do not believe that the commission we propose should have any power to adjudicate on individual complaints of violations of rights. We consider it is unnecessary for a commission to have the duty of scrutinising proposed legislation for compliance with human rights.

167. The precise details of how such powers and functions should be embodied in statute will clearly require further consultation and refinement, not least in relation to the exact architecture of any commission—particularly in the extent to which anti-discrimination functions are integrated with functions relating to the promotion and protection of human rights. In that context, we now turn to consider the institutional options for the commission we propose.

There are, however, strict limits on the extent to which District Audit can share information relating to individual public authorities. This is something that would have to be addressed through a protocol or memorandum of understanding between District Audit and any future Human Rights Commission. Back

100   Race Relations Act 1976, s. 71(1), (2), as substituted by Race Relations (Amendment) Act 2000 Back

101   In Australia, since the decision of the court in Brandy in1995, the Human Rights and Equal Opportunities Commission has not been able to provide enforceable legal judgements. Nonetheless, handling complaints had occupied a lot of time and resources. The Australian NGOs we met were divided about the merits of the complaints function of the Commission, though it was accepted that the complaints procedure was foremost in the public's mind when acknowledging the value of the Commission. The consensus appeared to be that the complaints mechanism did provide a useful way of identifying broad trends in the nature of individual complaints, and thereby to pick up on systemic problems. Back

102   In New Zealand, a government-sponsored review of the Human Rights Commission's role and functions had found that complaints had dominated the Commission to the disadvantage of its other responsibilities. It argued that more attention needed to be given to propagating a human rights culture through education and inquiries. Its focus is now turning to providing information to other agencies or encouraging conciliation through a dispute resolution process. Back

103   The La Forest report on the Canadian Human Rights Commission drew broadly similar conclusions. Back

104   Mind, Ev 339-40 Back

105   Age Concern, Ev 305 Back

106   BIHR, Twenty-second Report, Session 2001-02, op cit, Ev 140 Back

107   Since March 2002, the Government has used mediation in 255 cases as compared to 49 in the previous year. Back

108   The Canadian experience is that mediation is much cheaper than going to court. Research there suggests that 600 complaints can be mediated for the cost of 100 court cases (John Hucker, CHRC).  Back

109   The EOC is currently carrying out its first formal investigation for 9 years into claims of sexual harassment of employees by Royal Mail. The DRC is undertaking one into DNR notices and the CRE is also conducting one on racism in the prison service (which it is reported has cost £1m so far). Back

110   These not include the Human Rights Commission recently established by the Irish Human Rights Commission Act 2001. Its functions are wider than those of the Northern Ireland Human Rights Commission. They are: (a) to keep under review the adequacy and effectiveness of law and practice in the State relating to the protection of human rights; (b) if requested by a Minister, to examine any legislative proposal and report its views on any implication of such a proposal for human rights; (c) to consult with such national or international bodies or agencies having a knowledge or expertise in the field of human rights as it thinks fit; (d) either of its own volition or on being requested to do so by the Government, to make such recommendations to the Government as it deems appropriate in relation to the measures which the Commission considers should be taken to strengthen, protect and uphold human rights in the State; (e) to promote understanding and awareness of the importance of human rights in the State and, for those purposes, to undertake, sponsor or commission, or provide financial or other assistance for research and educational activities; (f) to conduct enquiries into any relevant matter, whether on its own volition or at the request of any person, with a power to refuse to do so if it considers that the matter could more appropriately be dealt with by means of legal proceedings, or that it is trivial or vexatious, or that any alleged violation of human rights is manifestly unfounded, or that the person making the request has an insufficient interest in the matter concerned; (g) to prepare and publish reports on research; to apply to the courts for liberty to appear as amicus curiae in proceedings that involve or are concerned with human rights; to participate in the joint committee of representatives referred to in the section of the Belfast Agreement of 10 April 1998 on "Rights, Safeguards and Equality of Opportunity"; (j) to provide assistance in legal proceedings; and (k) to institute proceedings in its own name. For the purpose of an enquiry, the Commission may require the giving of information and the production of documents relevant to the enquiry, and may, if necessary, obtain a court order to secure compliance with this requirement. The Commission is empowered to grant assistance for legal proceedings involving law or practice relating to human rights, unless such assistance is available by any other means. It is also empowered to institute legal proceedings in respect of any matter concerning the human rights of any person or class of persons. Back

111   HC Deb., 24 June 1998, c 1083 Back

112   Opinion 2/2002 of The Commissioner For Human Rights, Mr. Alvaro Gil-Robles on certain aspects of the review of powers of the Northern Ireland Human Rights Commission, Strasbourg, 13 November 2002, Comm DH(2002)16, original version in English, paras 46 to 49. Back

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