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 promote understanding and awareness of
human rights (including not only the Convention rights but also
rights embodied in international human rights instruments binding
on the UK );
- 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.
99 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
