Joint Committee On Human Rights Sixth Report



  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 and policy-making;

    —  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." 6

  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 ECHR.

  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 process.

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 authorities—local 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 practice;

    —  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 work—not 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 to:

    (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 authority—judicial restraint;

    (b)  testing the limits of the Convention;

    (c)  incompatible legislation;

    (d)  meaning of "public authority";

    (e)  retrospectivity;

    (f)  Article 6 challenges to the process of administrative decision-making;

    (g)  proportionality challenges to particular decisions;

    (h)  the press and the right to freedom of expression;

    (i)  whether administrative sanctions are "criminal" in nature; and

    (j)  testing the criminal law against Convention standards.

  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 rights legislation;

    (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 mindset—public official talking to public official—and 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.

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