Joint Committee On Human Rights

Joint Committee On Human Rights Sixteenth Report

6. Memorandum from JUSTICE

Summary

1. JUSTICE is an independent all-party human rights and law reform organisation. It is the British section of the International Commission of Jurists.

2. JUSTICE welcomes the government's proposal to establish a Commission for Equality and Human Rights ('CEHR') to promote all the strands of equality and to promote and protect human rights.[60] Regarding the latter, we agree that the CEHR's primary function should be to promote respect for human rights and focus on 'achieving strategic change through promotion, advice, the spreading of best practice and the raising of public awareness'.[61]

3. Following the release in May 2004 of both the government's White Paper and the Committee's own report on proposals for the CEHR,[62] we offer our observations on certain select points of apparent difference between the two documents.

International obligations (JCHR Report, para 21)

4. The concept of human rights is a universal one, recognized in numerous instruments at the international and regional level, as well as in virtually all national constitutions. It should be unsurprising, therefore, that the development of human rights values frequently relies on international standards (e.g. the Paris Principles) and comparative analysis (c.f. the influence of the Canadian Charter and the New Zealand Bill of Rights Act on the UK's own Human Rights Act, or the comparative study of Human Rights Commissions in the government's own consultation paper Equality and Diversity: Making it happen).[63] Accordingly, we see no reason why the CEHR should be limited to only those human rights standards contained in the European Convention on Human Rights.

5. We therefore agree with the Committee's analysis that the CEHR should be allowed to promote human rights 'in a broad inclusive sense'.[64] This would include drawing attention to the UK's obligations under the EU Charter of Fundamental Rights, for instance. Consistent with this broad approach, we also agree that the CEHR should be involved in the reporting process under various international human rights instruments to which the UK is a party (ideally by way of auditing and providing commentary on the UK's official report).[65]

Equality powers (JCHR Report, para 46)

6. JUSTICE notes that current equality law is piecemeal, inconsistent and variable. The current framework of discrimination laws are notoriously complex, having suffered over many years from a steady accretion of ad hoc measures, statutory instruments and EU directives.[66] The framework is also inconsistent, with key terms being defined differently in different pieces of legislation. Worse still, the different Acts provide unequal protection against different kinds of discrimination. For instance, it is legal for suppliers of goods and services to discriminate on grounds of religion or belief or sexual orientation, whereas it is unlawful to do so on the grounds of race or ethnicity. Consequently, for example, a Muslim family who are refused accommodation because they are Muslim will have no redress but a Jewish or Sikh family (whom the law recognizes as members of ethnic groups as well as religious groups) would. It would be problematic for the CEHR to promote an equality framework that is itself unequal.

7. Accordingly, JUSTICE supports the Committee's call for the 'levelling-up' of the laws relating to discrimination on all six equality strands, in particular extending protection against discrimination in respect of education, goods, facilities and services.[67] We similarly support the Committee's call for positive duties on public bodies to promote equality of opportunity and treatment in respect of each strand.[68] In view of the above, JUSTICE considers there to be a compelling case for a coherent and integrated legislative framework on equality, ideally by way of a single Equality Act.

Public Inquiries (JCHR Report, para 60)

8. In certain cases, the promotion and protection of human rights may require an effective public inquiry.[69] More broadly, the ability of a statutory human rights body to conduct inquiries into matters of public importance would aid in the effective promotion of a human rights culture. Accordingly, JUSTICE supports the Committee's conclusion that the CEHR should have full powers to conduct such inquiries on human rights issues 'relating to the policies and practices of public authorities'.[70]

Litigation and related powers (JCHR Report, para 76)

9. JUSTICE has already given its view that the proper role of funding human rights cases should be for the Legal Services Commission and not the CEHR.[71] Our reason for this view is that human rights issues permeate UK law and, as such, burdening the CEHR with the task of funding such cases would threaten to overwhelm it. We support the Committee's view that there should be a memorandum of understanding established between the Legal Services Commission and the CEHR to develop appropriate criteria for the strategic funding of human rights cases.[72]

10. At the same time, JUSTICE notes that many cases are likely to raise both equality and human rights issues and we consider that the CEHR should not be prevented from funding a case simply because it is not a 'pure' equality case. Bearing in mind our caution about the CEHR becoming too heavily involved in funding matters that are properly the province of the Legal Services Commission, though, the funding of 'mixed' cases should be approached with care. In cases where the CEHR has supported a 'mixed' case but equality argument has fallen away, we agree that the CEHR should have a discretion to continue to support the case. However, we would argue that the discretion should only be exercised in a narrow category of cases—cases in which the CEHR has identified a human rights issue of strategic importance and whose facts retain the 'flavour' of some form of discrimination (e.g. unfavourable treatment of an identifiable class of persons) even if not technically an equality case within the terms of the existing discrimination legislation. We also agree with the Committee's suggestion that there should be specific reporting provision in respect of the funding of such cases in the CEHR's Annual Report.

11. Although we do not think that the CEHR should play a role in funding 'pure' human rights cases save as outlined above, we do think that the CEHR may have a role to play in helping to fund third party interventions in human rights cases by nongovernmental organizations. We note, for instance, that the fee for an application to intervene in proceedings in the Court of Appeal is presently £100[73] and the fee for a petition to intervene in a matter before the House of Lords is £570.[74] While the CEHR could not be expected to fund such interventions itself, it would be consistent with its role in promoting human rights to approve small grants in respect of court fees where the CEHR is satisfied that such an intervention would be in the public interest.

Taking cases in its own name and judicial review (JCHR Report, para 89)

12. We note the Committee's call for the CEHR to have a free-standing power to bring applications for judicial review in respect of 'pure' human rights cases. We reiterate our view[75] that the human rights litigation functions of the CEHR should be developed gradually by way of amicus briefs and third party interventions (for the avoidance of doubt, the CEHR should have explicit power to intervene as appropriate in human rights cases). Should these powers prove inadequate, the power to initiate proceedings for judicial review could be added at a later stage.

13. JUSTICE is concerned that the CEHR will already be under very significant pressure to manage its human rights caseload given the likely number of individual complaints it is likely to receive raising both equality and human rights issues, as well as conducting its own third party interventions on human rights matters. Accordingly, the suggestion that the CEHR should discharge its statutory duty to protect and promote human rights by way of "seeking judicial review of actions, failures to act or policies or rules which it believed to be in continuing breach, or to threaten a breach, of the Convention rights"[76] may give rise to an unfortunate impression that the CEHR has primary responsibility to litigate to prevent such breaches. If the CEHR is given the power to initiate proceedings for judicial review to prevent a breach of Convention rights, JUSTICE suggests this should be limited to only those cases in which there is a compelling public interest in doing so.

Independence and accountability (JCHR Report, paras 128-141)

14. JUSTICE agrees with all the Commission's proposals to ensure the independence, accountability and transparency of the CEHR in accordance with the Paris principles.

29 June 2004

60 See Fairness for All: A New Commission for Equality and Human Rights (DTI, Cmnd 6185) 12 May 2004. Back

61 Commission for Equality and Human Rights: Structure, Functions and Powers, 11th Report of the Joint Committee on Human Rights, 2003-04 (JCHR, HL 78, HC 536), 5 May 2004, p. 7. Back

62 Ibid. Back

63 DTI, October 2002, pp. 14-18. Back

64 JCHR 11th Report, para 18. Back

65 Ibid., para. 19. Back

66 See Gay Moon, 'Equality re-imagined', (2004) JUSTICE Journal 108. Back

67 JCHR 11th Report, para. 46. Back

68 Ibid. Back

69 See e.g. Edwards v United Kingdom (2002) 35 EHRR 19. Back

70 JCHR, 11th Report, para. 60. Back