13. CONCLUSIONS
In the two years that the Human Rights Act has
been in force, the need to comply with the Act has become an integral
part of the work of public authorities. The Act has not given
birth to a "human rights culture" or made human rights
a core activity of public authorities. This report considers,
therefore, that a human rights commission is not essential to
the process of ensuring that public authorities comply with the
HRA but it is essential to the process of establishing a "human
rights culture" in the UK.
A human rights commission is not a "cure
all" for problems being faced in establishing human rights
in public authorities. There are weaknesses in the system of mainstreaming
human rights that need to be addressed irrespective of any decision
on a human rights commission. In the areas of local government
and health, there are steps that can be taken to incorporate human
rights into the performance management and assessment frameworks
governing their work. These steps will help to instil human rights
into the core activities of these sectors. Public authorities
can also be put under a more basic duty to promote human rights
in their work as is taking place in the field of equalities. A
human rights commission is not essential to any these steps but
there would be a clear added value to be gained through the involvement
of such a commission. In particular, a human rights commission
would probably prove to be the most effective driving force for
developing and implementing a public sector duty to promote human
rights. Its ability to work with a range of regulatory and representative
bodies (umbrella organisations) in different sectors would be
central to the pursuit of this agenda (given that a commission
would not have the capacity to work directly with individual public
authorities).
A human rights commission would be able to fulfil
a number of other key roles in relation to public authorities.
It could:
— change the perception of human rights
in public authorities from just being matters of legal compliance
to also being a means of better service delivery;
— provide much needed guidance and
advice (working largely through umbrella organisations) targeted
at individual sectors; and
— keep public authorities "honest"
in their handling of human rights matters through the ability
to bring test cases and to conduct thematic inquiries.
The cautionary note to this is that even if
decisions are taken to establish a human rights commission in
the near future, such a body would not come into existence and
be fully effective for several years. The experience in Scotland
shows that debate over the need for such a commission can rekindle
interest and attention in the subject. However, it has to be recognised
that human rights are on a fast ebbing tide from the high water
mark of late 2000. The risk is that there will be little for a
human rights commission to work with in the public sector unless
existing human rights networks are rebuilt and re-established.
Whether in the context of preparatory work for a human rights
commission or as an alternative this is a critical and urgent
task.
Jeremy Croft
January 2003
REFERENCES
1 See, for example, J Croft—"Whitehall
and the Human Rights Act 1998". [2000] Constitution Unit,
"Whitehall and the Human Rights Act 1998: The First Year".
[2002] Constitution Unit and J Watson—"Something for
Everyone: The impact of the Human Rights Act and the need for
a Human Rights Commission" [2002] BIHR.
2 Health Service Circular. HSC 2000/025.
25 July 2000.
3 See [www.doh.gov.uk/humanrights/index.htm].
4 R v North and East Devon Health Authority
ex parte Coughlan [1999] COD 340. DoH Health Service Circular—"Continuing
Care. NHS and Local Council responsibilities" [HSC 2001/015]
28 June 2001.
5 R v Bracknell Forest District Council
ex parte Johns and ex parte Mclellan [2001] EWCA Civ 1510
6 Joint Committee on Human Rights—Minutes
of evidence, 21 March 2002. HL Paper 103—i/HC 719-i, Ev
5.
7 LGA—"Acting on Rights—a
Guide to the Human Rights Act 1998" [1999] and "Deciding
Rights—applying the Human Rights Act to good practice in
local authority decision making" [2000].
8 See [www.alarm-uk.com/guide.html].
9 District Audit "Human Rights Management
Arrangements Diagnostic". Para 1.11.
10 Ibid. Para 1.9.
11 Human rights were listed as a separate
category in the Local Government Core Risks (2001/02) and under
"Risk management" in the NHS core Risks (2001/02).
12 "Human Rights Diagnostic. Do your
management arrangements support a rights-based culture?"
District Audit flyer.
13 IPPR—"Report on the IPPR survey
into whether public authorities are preparing for implementation
of the HRA 1998" [2000].
14 LGA—"Preparing for the Human
Rights Act. A Survey of Local Authorities." Research Briefing
3 [2000].
15 District Audit—"The Human
Rights Act. A Bulletin for Public Bodies". [2002].
16 One Chief Executive of a Primary Care
Trust interviewed estimated that he received an average of 60
e-mails each day from the DoH on every subject bar human rights.
17 District Audit—"The Human
Rights Act. A Bulletin for Public Bodies". [2002]. P2.
18 These documents are available, either
in full or edited form at [www.bma.org.uk]
19 Available at [www.gmc-uk.org]
20 Speech delivered by Lakhvir Rellon, Commissioner,
Disability Rights Commission at an expert seminar on "Withholding
and withdrawing medical treatment" on 14 November 2002. Available
at [www.drc-gb.org].
21 See, for example, [www.schwehrcare.co.uk]
where advice is offered under such headings as "Why are written
records about what goes on in the health and social care fields
so important in practice, when it comes to human rights cases?"
22 Donoghue v Poplar Housing and Regeneration
Community Association [2001] EWCA Civ 595 at [65]; [2001] 3 WLR
183.
23 Ibid, at [66].
24 Law Reform Commission: "Renting
Homes 1: Status and Security" [2001] para 5.77 p106.
25 See Chartered Institute of Housing. Certificate
of Housing. Level 3—section on Traveller Site Management.
26 See Independent Housing Ombudsman. Current
Case Digest 21. [2002] [www.ihos.org.uk/casedigest.htm]
27 See [www.housing.org.uk/information/policyshop/raceinquiry.asp]
for details.
28 See [www.dmuracetoolkit.com] for details.
29 The consultation paper and responses
are available at [www.scotland.gov.uk/justice/humanrights].
30 See Scottish Executive Central Research
Unit—"Public Authorities and the Human Rights Act"
[2001].
31 Speech by the Deputy First Minister at
the launch of the Inverclyde Education Authority's Human Rights
Charter for Schools. December10, 2001.
32 The Scotsman. December 12, 2001.
33 See for example the description of Glasgow
City Council's preparations in K. Meechan—"The Human
Rights Act—Public Authority Preparations". [2001] J.L.G.L.
Issue 3 (56).
34 See Paul Chaney and Ralph Fevre—"An
Absolute Duty: Equal Opportunities and the National Assembly of
Wales". [Institute of Wales] [2002] p 21.
35 See DTI—"Equality and Diversity:
Making it happen" [2002] paras 9.4 an
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