The best time for a human rights commission
to be established would have been when the HRA was being introduced.
This was partially recognised through the decision to establish
a Human Rights Task Force, pooling expertise from outside the
Government, to assist the preparation process for the Act.
The position now is more akin to that of the
Disability Discrimination Act and the Disability Rights Commission
where the latter followed four years later on the change of government.
The Disability Discrimination Act was likened to a "car without
an engine" in the debates leading up to the creation of the
Disability Rights Commission. The Human Rights Act has one engine
(in the form of the courts) but does it need a second?
This brings us to what is it that the Government
wishes to achieve in relation to the Human Rights Act and how
this influences its attitude towards a human rights commission.
Through the HRA the Government requires that public authorities
act in a manner that is compatible with the ECHR. It maintains
that this should be done as part of a "human rights culture"
in which rights and responsibilities become a facet of every aspect
of public activity and community life.
The Government has given human rights an extremely
powerful enforcement mechanism and a non-existent promotional
tool. In other areas of equality legislation, data protection
and freedom of information, the government has established statutory
bodies to assist and advise public authorities, employers and
the public on the discharge of these responsibilities. What does
the absence of a human rights commission say then about the government's
purpose in relation to human rightsthat it does not view
human rights as more than a compliance issue? Whether or not this
is the intention, this belief is reflected in the actions and
priorities of virtually every government department and public
authority. The obligation to comply with the ECHR is recognised
and addressed. The idea of promoting human rights is ignored.
Other "cultures" were espoused in the first term of
the new Labour government which have not survived into the second
term. This is the reality for human rights. There is no political
will now within government to build a "human rights culture"
and, therefore, no need for a vehicle by which to do so. The DTI's
consultation paper on the structural arrangements for a single
equalities body recognises that "one of the Human Rights
Act's aims is to drive cultural change, placing obligations on
public authorities" but no case is put forward for this to
be a function of such a body. Instead, the consultation paper
refers to the civil and political roots of human rights as something
distinct from the social and economic protection provided by equality
legislation (a conception of human rights of the nineteen fifties
and sixties not the twenty-first century). 35 Add to this the
inevitable costs and complexities of creating such a human rights
commission (either as part or separate to a single equalities
commission) and who would wish to champion such a move within
government or in the funding allocation exercises. Is the government
receptive to the notion of having a human rights commission?
On a related cautionary note, is it certain,
in the post September 2001 environment, that opening the Human
Rights Act to amendment to accommodate a human rights commission
would not also lead to other, less favourable, changes in the
operation of the human rights legislation. Opposition concerns
highlighted in the parliamentary debate of 28 October 2002 and
evident unease in parts of government over the impact of the Act
is having on immigration and asylum policies, give pause for thought
about the wisdom of pursuing a human rights commission through
amendment to the HRA.
Within public authorities, themselves there
are mixed views on the need for a human rights commission. Some
consider that two years is too short a period to judge whether
the operation of the HRA requires the support of such a commission
especially when they are generally content with the low key manner
in which matters are progressing. On a slightly different take,
there is also a belief that the time for such a commission has
passed. It would have served a purpose at the time of the introduction
of the HRA but compliance with the HRA and ECHR is not now a problem
and the promotion of human rights is not an issue. Treating human
rights as a matter of legal compliance is all that is required
and this can be done without a human rights commission.
There are the expected concerns that:
a human rights commission will pose
an additional burden on public authorities especially if it is
one of a multiplicity of commissions each pressing their own agenda;
public authorities are already over-regulated
and do not need additional "watchdogs".
Those working with public authorities have different
fears, that the existence of a human rights commission might allow
public authorities to wait to be "spoonfed" and dispense
with any real consideration of human rights matters on their own
All of these concerns need to be drawn out in
any future consultation exercise.