Joint Committee On Human Rights

Joint Committee On Human Rights Sixteenth Report

3 Powers

19. The White Paper proposes that, in relation to its human rights functions, the Commission will have power to undertake "general inquiries" but not "named inquiries" such as those presently available under the anti-discrimination laws. We have some concerns about the detail of this power which we discuss below.

20. It also proposes that the Commission should not have powers to support individuals in taking freestanding Human Rights Act cases to court, or to take class actions. This is in line with our own recommendations. However, we emphasise the importance we attach to there being put in place effective arrangements between the CEHR and the Legal Services Commission to ensure that human rights cases are accorded appropriate priority in funding legal aid.[20]

21. The White Paper proposes that the Commission will have power to act as a third-party intervener in the courts, and to support cases where human rights issues arise as well as discrimination issues. We consider these, and other issues relating to litigation, below.

General powers

22. We considered the question of express and implied powers in relation to the Northern Ireland Human Rights Commission in a report last year,[21] to which the Government has still not responded. We draw the lesson from that experience that there is a need to make many powers of the Commission express in the legislation. We recognise, however, that there could be merit in ensuring that it does not need to have constant recourse to the courts for clarification of its powers by conferring upon the Commission all the powers reasonably incidental to or consequential upon its express powers.[22]

General inquiries

23. The White Paper proposes that the Commission will "have a power to carry out general inquiries into issues of public interest relevant to the groups protected by discrimination legislation and to human rights".[23] This is in line with our proposals for what we called "public inquiries".[24]

24. The White Paper says that the CEHR will be able to initiate these inquiries either independently "or at the request of the Secretary of State".[25] We have the gravest doubts whether it is compatible with the status of an independent national human rights institution to be subject to any form of statutory direction by Ministers regarding the initiation of its inquiries. In our report we recommended that—

It should be open to a Minister to ask the commission to undertake such an inquiry, and to make his request publicly, but not to require an investigation.[26]

We note that the Law Society considers that even this is conceding too much to Ministers.[27]

25. The White Paper says that "to ensure that it can obtain sufficient information to conduct a thorough and useful investigation, the CEHR will be able as a last resort to apply to the Secretary of State to compel third parties to provide certain information relevant to the inquiry".[28] This is not satisfactory. Human rights inquiries will almost always be into the activities of state agencies, as it is public authorities which are bound by section 6 of the Human Rights Act to act compatibly with Convention rights. For the Commission to have to rely on ministerial sanction to be able to pursue general inquiries effectively would be wholly inappropriate. In our previous report we recommend a power to compel evidence similar to that possessed by the EOC and CRE currently, but subject to judicial supervision. Alternatively, a power similar to that given to the new Children's Commissioner to have reasonable access to information might suffice.[29] It would be judicially reviewable, as the Law Society suggest.[30]

26. We remain convinced of the importance of adequate investigatory powers to the efficacy and credibility of the new Commission. This conviction has been strengthened by our recent discussions with the South African Human Rights Commission, which has powers to call for persons and papers, and to enter and search premises.[31] The Commission emphasised to us that it saw these powers as extremely important. It had used its powers on occasion to require information from government departments, and to subpoena provincial government leaders, a Cabinet Minister and the head of the defence force. The Commission had also found it necessary to use its powers of entry, on one occasion, to gain access to private sector premises. The South African Commission has used its powers only rarely and as a last resort. It also noted that it found it necessary to use its powers less and less as it became known that it held these powers in reserve and would use them if necessary.

27. The White Paper is silent on what might be the outcome of such general inquiries in terms of reports and recommendations, and how these might be dealt with. We said in our report that—

Where the Commission did, in the course of an inquiry, identify practices which appeared to have led, or appeared likely to lead, to breaches of the Convention rights, it should have power to identify the actual or potential violations occurring and to make recommendations as to changes in practice or in the law which it considered necessary or desirable.[32]

Similar points have been raised in relation to the inquiry powers of the Children's Commissioner proposed under the current Children Bill.[33] It will not, we believe, be sufficient to leave the Commission's inquiry powers hanging in mid-air.

28. Francesca Klug and Claire O'Brien raise the issue of how human rights issues which emerge in the course of a "named investigation" under anti-discrimination powers should be dealt with, given that the White Paper does not give the Commission power to launch named investigations in relation to alleged breaches of human rights. In particular, they note that human rights matters should not be excluded from the Commission's follow-up action to named investigations.[34] We agree that this matter requires urgent consideration. We draw further attention to our conclusion in our previous report on general inquiries and human rights—

We emphasise that the power to conduct public inquiries which we propose should be a novel, free-standing power in relation to matters of public policy which engage human rights, not dependent on equality issues being engaged and the use of the existing anti-discrimination powers that will be vested in the new commission.[35]

Litigation and related powers

Third party interventions

29. The White Paper proposes, as we recommended, that the Commission should have the explicit ability to intervene as a third party in cases at the invitation of the court.[36] It appears to qualify this by saying that "intervention in human rights cases would be intended to support the development of a flourishing human rights culture in the public sector".[37] We have no quarrel with this as a general statement of purpose. However, we would object to this qualifying statement if it is intended to limit the ability of the Commission to intervene in human rights cases, or to draw a distinction between interventions in human rights cases and equality cases. Furthermore, such qualifications, if established by statute, might interfere with the discretion of the courts to regulate process.

Friend of the court

30. The White Paper points out that no express power to act as an amicus curiae or friend of the court is needed by the Commission, and that the ability to intervene as a third party will be sufficient in most cases.[38] We accept that an express statutory power to act as an amicus should not be necessary, on the understanding that the courts may request the CEHR to act as an amicus in an appropriate case.

Judicial review

31. The White Paper is silent on the question of whether the Commission should have any judicial review power in relation to human rights. It does refer to something which it describes as "hypothetical cases",[39] but we take this to refer to attempts to settle abstract theoretical legal propositions rather than action to avert or remedy a violation of Convention rights. As we pointed out in our previous report, there is a particular problem which arises in relation to judicial review by the Commission with regard to the Human Rights Act, as opposed to anti-discrimination legislation, because of the "victim test", given statutory form in section 7 of the HRA.

32. We considered this issue at some length in our earlier report. We repeat our conclusions here—

… we are now more persuaded that account should also be taken of the preventative benefits of permitting judicial review of this kind—before individuals are victimised. In the long run it could help forestall more demand on court resources which would be required to deal with less well-informed and more partial challenges. The bringing of one focused claim by a body such as the commission might actually prevent the courts from being unduly burdened. And, as we have said above, an inquiry power without the long-stop of any enforcement mechanism (or route to test the findings in the courts) would, we believe, be very damaging to the credibility of the commission. Finally, and perhaps most importantly, we have now concluded that there is a wider public interest in ensuring that public authorities comply with the law. It would be an indefensible situation in which a commission set up for the express purpose of promoting and protecting human rights was able to identify what it believed were threats to those rights, and no steps were available to it to remove those threats.

We recommend that the commission should have a power, notwithstanding the provisions of section 7(3) and (4) of the Human Rights Act, to seek judicial review of the policies or actions or omissions of a public authority where it has reason to believe that such policies or actions or omissions have resulted, or are likely to result, in a violation of the Convention rights.

We consider that it would be desirable to achieve this aim by amending section 7 of the Human Rights Act itself (to allow only the new commission to bring cases in which there is no individual victim), rather than conferring an express power on the CEHR in its parent statute. The latter approach requires the Human Rights Act to be read alongside later legislation impliedly amending it, which may be thought to be inconsistent with its status as a constitutional statute setting out in one place the legal regime for the vindication of fundamental rights. However, it would also be possible to achieve this objective through a provision in the new commission's founding legislation.[40]

33. With one notable exception,[41] almost all respondents to our calls for evidence have given general consent to this proposition. The EOC believed—

… that the power to seek judicial review in this way is a fundamental tool in the promotion of human rights as a framework of core values and in monitoring the workings of the HRA.[42]

34. We remain convinced that it will be essential to give the power to seek judicial review under the Human Rights Act to the Commission for Equality and Human Rights. Without it, it will be neutered.

Supporting individual cases

35. The White Paper states that the Commission will have explicit powers only to support individual cases under anti-discrimination legislation, not under the Human Rights Act.[43] This is broadly in line with our own recommendations,[44] though we stressed that we believed that—

… the new commission must be able to address some instances of discrimination which are not covered by any of the six strands. We consider that a power to invoke the human rights dimension should be considered to be implicit in the new commission's litigation and enforcement powers relating to its equality functions—if this is in doubt, then the legislation should be so framed as to ensure that the CEHR can rely confidently upon the Human Rights Act in relation to the Convention rights related to those functions.[45]

36. However, the White Paper also asks "whether the CEHR should be able to continue support for cases which have drawn on both discrimination and human rights arguments, after the discrimination element of the case has fallen away?"[46] We considered this matter in our own report. We concluded—

In our view it would … be perverse to seek to prevent the new commission, which will contain a specific human rights function, from being able to rely directly on the Human Rights Act. It would also run contrary to the general scheme of the Human Rights Act, which has an impact on all legislation and all public authorities. The new commission should therefore be able to use the Human Rights Act in any anti-discrimination case when the facts indicate a relevant breach of human rights. The CEHR must be able to fund "mixed" cases. But where the case fails in relation to its founding anti-discrimination argument but is left with an argument based on the Convention rights which is relevant to the new body's strategic interests, it would we believe be quite wrong for the commission to be required to abandon support for a case where the facts continued to disclose a breach of human rights (for example where someone had successfully defended the anti-discrimination part of a case on the basis that he or she had meted out bad treatment to everyone indiscriminately). We consider that a power to invoke the human rights dimension should be considered to be implicit in the new commission's litigation and enforcement powers relating to its equality functions—if this is in doubt, then the legislation should be so framed as to ensure that the CEHR can rely confidently upon the Human Rights Act in relation to the Convention rights related to those functions.[47]

We welcome the confirmation in the White Paper that the CEHR will be able to support "mixed" cases, where both discrimination and human rights points arise. In such cases, it may occasionally happen that the discrimination argument will fall away, but the human rights element of the case remain. We emphasise that, although these circumstances are likely to arise only rarely, the interests of justice for the applicants in such cases require that the Commission should have the capacity to continue to support the case.

Alternative dispute resolution

37. The White Paper states "Consistent with the approach proposed for supporting [freestanding Human Rights Act] litigation, it is not envisaged that the CEHR's conciliation service will be available for freestanding Human Rights Act cases".[48]

38. We find this statement baffling. We do not understand why the availability of legal aid for Human Rights Act cases, and the desirability of a single funding source would be relevant to the provision of conciliation services. The DRC described its own experience of facilitating conciliation as "generally encouraging".[49] The EOC commented—

The Joint Committee … saw [a general power to support alternative dispute resolution approaches to allegations of breaches of human rights by public authorities] as a quid pro quo for the restriction on support for individuals bringing human rights cases. The White Paper, however, proposes that the CEHR will be empowered to arrange for the provision of conciliation services in disputes related to discrimination in the provision of goods, facilities, services and education … The reason given for this distinction is that it is consistent with the approach proposed by the White Paper for supporting HRA litigation, i.e. since human right issues can already be raised in any court or tribunal and legal aid may be available, there is no requirement for the CEHR to support cases under the HRA. It is not clear why the availability of a litigation route to resolving a dispute should preclude the provision of a conciliation service. The approach in other areas, for example in the employment sphere, is to encourage alternative dispute resolution even where there is a readily accessible route to litigation through the Employment Tribunal. The limitation of a conciliation service to discrimination cases or discrimination cases with a human rights dimension would lead to a difference in treatment of an individual's dispute based on the technical label applied to it … the EOC is concerned that distinctions of this kind will hamper the effectiveness of the CEHR in achieving a holistic approach to equality and human rights and, on a more specific level, may lead to legal challenges and technical hurdles to the resolution of disputes involving the rights of individuals.[50]

We entirely agree with the EOC's analysis. We could understand the argument that, if the provision of such services were to draw the Commission directly into dealing with individual complaints, then it would run contrary to the strategic vision of the Commission. But that argument is not articulated. We do not think it would be likely to apply.

39. We said in our report that—

… a general power to support alternative dispute resolution approaches to allegations of breaches of human rights by public authorities would be a valuable ancillary to the commission's general duty to promote a culture of respect for human rights. As with the DRC, it should be explicitly disbarred from providing such services itself—otherwise it would be a route by which it might again be drawn into individual cases and start developing an ombudsman-style role which would be at odds with the strategic role which we believe it should have.[51]

We remain convinced that a role in developing such approaches is a fundamental element in developing a culture of respect for human rights. We are puzzled that the White Paper proposes the "good community relations" function for the Commission, invoking the human rights values to underpin this,[52] but appears to reject the same approach to individual dispute resolution.

40. We recommend an explicit power for the Commission to support alternative dispute resolution approaches to disputes arising across the full range of its responsibilities. Any proposal to exclude Human Rights Act cases from this remit will require rigorous justification.

20 Eleventh Report, Session 2003-04, op cit., para. 70. Back

21 Fourteenth Report, Session 2002-03, Work of the Northern Ireland Human Rights Commission, HL Paper 132/HC 142, paras. 60-62. Back

22 Appendix 9, para. 4.3. Back

23 Cm 6185, para. 4.3. Back

24 Eleventh Report, Session 2003-04, op cit., paras. 48-54. Back

25 Cm 6185, para. 4.5. Back

26 Eleventh Report of Session 2003-04, op cit., para. 55. Back

27 Appendix 7. Back

28 Cm 6185, para. 4.6. Back

29 Clause 2 (5) and (6) of the Children Bill as amended by the House of Lords on report state: "(5) The Children's Commissioner or a person authorised by him may for the purposes of his function under this section at any reasonable time- (a)enter any premises, other than a private dwelling, for the purposes of interviewing any child accommodated or cared for there; and(b) if the child consents, interview the child in private. (6) Any person exercising functions under any enactment must supply the Children's Commissioner with such information in that person's possession relating to those functions as the Children's Commissioner may reasonably request for the purposes of his function under this section (provided that the information is information which that person may, apart from this subsection, lawfully disclose to him).". Back

30 Appendix 7. Back

31 Human Rights Commission Act 1994, sections 9 and 10. Back