4.1 BUILDING A "HUMAN
RIGHTS CULTURE" IN
THE PUBLIC SECTOR
The Government intends that the Human Rights
Act should serve as the basis for a new "human rights culture"
in the UK. The Cabinet Secretary has therefore described the purpose
of mainstreaming as involving:
"developed awareness at all
levels of the Convention rights and the associated balances
and limitations, as an integral part of public administration
frequent practical expression of
the positive difference the Convention can and does make by voluntary
good practice as well as by court decision;
clear and public demonstration of
commitment to the Convention values and principles at the highest
levels of government and public authorities;
public recognition of the Convention
values and principles in delivering quality public services."
The Government has set out to establish a "human
rights culture" based on communitarian principles in which
the rights of individuals would be balanced by their responsibilities
to each other and to society. This culture is being built exclusively
on the civil and political rights contained in the HRA and ECHR.
The Government has not been persuaded by arguments that a true
"human rights culture" should encompass rights found
in other human rights instruments. Instead, in the eyes of the
Government and public officials, Convention rights are synonymous
with human rights and the "human rights culture" effectively
a question of building a "culture of compliance" with
The LCD is conscious that it is not in a strong
position to achieve a uniform "human rights culture"
across public life. The Lord Chancellor observed in evidence to
the JCHR " . . . really there is a limit to what the centre
can do to encourage such a culture". Nor does the department
expect that a "human rights culture" will be created
quickly. The culture is likened to an infant who will need to
be nurtured over a number of years. The Human Rights Unit talks
of a "drip drip" effect in heightening awareness of
human rights within departments and public authorities. However,
this also means that such bodies have been left largely to their
own devices to determine how (or if) they should bring about a
"human rights culture". In the run up to the implementation
of the Human Rights Act, the handful to address the issue did
so through a prism of their existing priorities and policies.
Some organisations (notably the police and in local government)
combined human rights with "best value" initiatives
on the delivery of services. Others linked human rights to the
"culture of openness" being pursued through the data
protection and freedom of information legislation. But even where
the issue has been considered, only rarely have efforts been made
to establish any form of "human rights culture" throughout
the organisation or in any of its related public authorities and
other bodies subject to the Act. Building a "human rights
culture" is not a political priority. In most departments
and public authorities progress has stalled: the phrase "human
rights culture" has been imbued with little real meaning
and its use invites cynicism or blank looks among officials. No
public official (outside LCD) interviewed in the course of this
research, for example, could describe what was meant by a "human
rights culture" or was able to point to steps to implement
one in their organisation.
It is difficult to see how a "human rights
culture" will be established and maintained throughout public
life without the political will to keep the issue alive. There
are also, as we have seen, fundamental problems in disseminating
any information on human rights given the unravelling of the mainstreaming
4.2 Road shows
There are occasions on which the centre does
address public authorities directly on human rights matters including
culture and good practice. During the last two years, the Home
Office and Lord Chancellor's Department have organised a series
of free regional road shows for public authorities on the implications
of the Human Rights Act. The latest series, to coincide with the
second anniversary of the Act, has involved road shows in Llandudno,
Birmingham and Exeter with others planned. These road shows continue
to attract significant audiences with some 100 participants, for
example, at the Birmingham road show in November 2002. Participants
come from a wide range of public authoritieslocal government,
health (especially, the newly created Primary Care Trusts), regional
offices of regulatory bodies etc. They include persons with responsibilities
covering the implementation of the HRA within organisations as
well as service providers.
There are three components to the road shows:
a presentation on culture and good
a presentation on the case law; and
small group discussions on case studies.
The essential message of building a human rights
culture based on the rights and responsibilities set out in the
ECHR remains unchanged. The key phrase or "golden rule"
used for the road show is "Do-as-you-would-be done-by".
Public authorities are encouraged to embrace the HRA in their
worknot just as an activity of the lawyers but in all areas
and aspects of the organisation. The road show presentation also
briefly covers practical tips on how this might be done in headquarters
offices and by front line managers.
The review of case law starts with the reassurance
that almost all challenges using the ECHR fail. This is attributed
(1) laws, policies and practices in the UK
generally being compliant with the Convention; and
(2) the deference or restraint shown by judges
in drawing the line between the protection of individual rights
and the legitimate interference with those rights.
If public authorities keep their nerve, and
can demonstrate that they make evidence-based decisions that take
heed of the ECHR, participants are told that there is nothing
to fear from the Convention. If decision-making processes are
arbitrary or irrational, problems lie ahead. The printed "Selection
of Notable Cases" given to road show participants are grouped
under a number of themes:
(a) respect for democratic authorityjudicial
(b) testing the limits of the Convention;
(c) incompatible legislation;
(d) meaning of "public authority";
(f) Article 6 challenges to the process of
(g) proportionality challenges to particular
(h) the press and the right to freedom of
(i) whether administrative sanctions are
"criminal" in nature; and
(j) testing the criminal law against Convention
The spoken presentation at the Birmingham road
show used a slightly different grouping. Cases:
(1) where the HRA and human rights principles
provided a focus for an issue but the same decision might have
been reached without these;
(2) decided differently because of the human
(3) pushing at the boundaries;
(4) involving positive obligations; and
(5) involving fairness in decision-making.
The three case studies used in Birmingham considered
human rights issues surrounding sex offenders orders, surrogacy
and political restrictions on local government officers. Housing,
long term care and mental health matters are likely to figure
in future case studies. Questions from the audience and the deliberations
on the case studies disclosed that most participants were familiar
with the human rights legislation and the application of key concepts"proportionality"
etc. For most it appeared that the road show was an opportunity
to update knowledge on human rights issues not an introduction
to the subject.
The road shows are clearly a worthwhile exercise.
They offer a rare opportunity for LCD to speak directly to public
authorities and receive, in turn, some insight into the concerns
of people working in such bodies throughout the country. This
is not an activity that could be performed in the same manner
by a human rights commission. The road shows are in tune with
the public sector mindsetpublic official talking to public
officialand would not be as frank or authoritative if undertaken
by an external body.
4.3 Defining and building a "human rights culture"
in public consciousness
Road shows are not aimed at the public at large.
Little has been done, as yet, to lay the foundations for a horizontal
(inter-citizen) "human rights culture". The initial
publicity campaign organised by the Human Rights Unit and Human
Rights Task Force for the launch of the Human Rights Act was short
lived although their guidance materials continue to be in demand.
Some progress has been made through the recent inclusion of human
rights in citizenship programmes as part of the national curriculum
for schools in England.
There will always be credibility problems for
any Government organisation attempting to sell a "human rights
culture" to the public. In other countries, in other parts
of the UK and in related subject areas (racial equality, equal
opportunities and disability) dedicated commissions exist which
fulfil the promotional and inspirational role. For example, promoting
awareness of human rights will be a function of the proposed Scottish
Human Rights Commission.
Defining and building an effective "human
rights culture" for the UK is much more likely to prosper
in hands which are not be tied by the political concerns and conflicting
demands of Government. This is a task that would be better performed
by a Human Rights Commission.