7. Memorandum from the Law Society
The Law Society is pleased to have the opportunity
to respond to the Joint Committee's consultation on the proposals
set out in the White Paper 'Fairness for All', and in particular
those relating to the Government's proposed arrangements for accountability,
the litigation powers of the new body, and the proposed new powers
to conduct 'general inquiries'.
1. General Comments
The Law Society welcomed the Joint Committee's 11th
report which corresponded with a number of the Society's concerns
and recommendations. The Society is broadly pleased with the provisions
of the White Paper. However we still have particular concerns
about the status of human rights within the new Commission and
the Commission's independence from Government.
Before turning to the specific issues raised by the
Joint Committee, we would like to mention two other areas where
we noticed a disparity between the JCHR report and the White Paper:
The Joint Committee in its recent report argued in
favour of a positive duty on public authorities to promote human
rights. We consider that this would be a logical step which would
give the human rights function of the CEHR much greater power
and influence in relation to human rights than is currently envisaged
in the White Paper. The DCA has tacitly accepted the need for
public authorities to address human rights issues proactively
in the letter recently sent by Sir Hayden Phillips to Sir Andrew
Turnbull and others encouraging Government departments to review
and reinvigorate their commitment to a human rights culture.
The Law Society has long advocated for a Single Equality
Act (SEA). We note that we are not alone, as not only was the
Joint Committee's report in favour of an SEA, so were many of
the respondents to the call for evidence. Furthermore MPs have
recently established an EDM calling for a SEA to make the discrimination
laws consistent. They feel that the existing "patchwork of
law will undermine the new Commission's ability to enforce and
promote equality".[77]
We believe that if Parliamentary time is not found to deal with
this issue as a matter of urgency, then the CEHR will be reinforcing
the inequalities between groups which it seeks to remove. The
importance of this has recently been emphasised in the case of
Ghaidan v. Godin-Mendoza.[78]
2. Arrangements for accountability
2.1 Proposed model
The White Paper proposes that the Non-Departmental
Parliamentary Body (NDPB) model is used for the CEHR, whereas
the Joint Committee favours a model which provides the CEHR with
greater independence from Government. Although the Law Society
has not previously specified a preferred model, it has advocated
that the new body must be based, as a minimum, on the UN's Paris
Principles. We would therefore prefer that the CEHR's status be
similar to that of the Parliamentary Commissioner, National Audit
Office Civil Service Commissioners or Electoral Commission models.
If the Government proceeds with the NDPB model, we would suggest
that the DCA would be the most appropriate sponsoring department.
2.2 Funding
The White Paper does not deal in any detail with
the funding of the Commission, although we understand that this
is still 'under discussion'[79]
and that the Government is committed to ensuring that the CEHR
is properly and adequately resourced.[80]
We note that the NDPB model proposed in the White Paper, has a
sponsoring department and a Secretary of State to which the body
is answerable in terms of use of funds.
The Joint Committee is in favour of funding being
voted on by the Commons directly i.e. not through the expenditure
of a sponsoring department, with the budget approved and overseen
by an independent statutory committee. We note that the Paris
Principles state that any human rights body must have adequate
funding, "The purpose of this funding should be to enable
it to have its own staff and premises, in order to be independent
of the government and not be subject to financial control which
might affect this independence".[81]
We therefore agree with the Joint Committee that funds must come
from a central budget and that a non-ministerial committee should
oversee funding arrangements.
2.3 Reporting mechanism
As mentioned above we do not support the NDPB model
with a 'sponsoring department'. The JCHR has suggested that its
own remit should be extended to allow it to consider, amongst
other things, the expenditure, administration and policy of the
CEHR. The Law Society agrees that the CEHR should report directly
to Parliament.
2.4 Chair, Board and Committee appointments
The Law Society agrees with the White Paper that
the Chair and Board should be appointed in line with the requirements
of the Office of the Commissioner for Public Appointments.
We are pleased that the White Paper has recognised
that special arrangements are needed for the disability strand,
and note that the JCHR recognises that there are persuasive arguments
in favour of particular arrangements for disability. We also support
the Joint Committee's emphasis on the need for appointees to the
Commission to have sufficient experience, knowledge and expertise.
However, there is no definition of 'disabled' for the purposes
of appointment to the Commission, we therefore believe that it
should be the same as that in the Disability Discrimination Act
1995. In addition, it must be clear that 'disabled' appointees
must also meet the experience, knowledge and expertise criteria.
3. Detail of the litigation powers of the new
body
3.1 General comment
Although we note that the Joint Committee in its
report did not support a power for the CEHR to support individual
cases, we are generally disappointed by the lack of litigation
powers for the Commission in relation to human rights. Moreover,
we are concerned that the criteria on which the CEHR can support
cases will limit access to justice, as the CEHR will only be able
to support and fund strategic cases. We are also concerned that
the CEHR will not be able to support cases which would be for
the benefit of a member of a protected group, but that does not
involve discrimination legislation.
3.2 Judicial review
We understand that the Government is still considering
whether the CEHR should be empowered to seek judicial review of
breaches of section 6 of the Human Rights Act 1998 by public authorities.[82]
We note that the Joint Committee has suggested that the new Commission
should have power to seek to judicially review policies, actions
or omissions of a public authority where it believes this has
resulted in or is likely to result in a breach of ECHR rights.
The Law Society strongly endorses this position. Moreover, the
CEHR should have power to seek, in judicial review proceedings,
interpretative declarations under section 3 of the HRA or declarations
of incompatibility under section 4.
3.3 'Mixed' cases
We note that the Government is still consulting on
whether there should be continued support for combined Human Rights
Act/discrimination cases, where the discrimination element falls
away. We also note that the JCHR has said it would be perverse
for the Commission to be forced to withdraw support from such
a case should the discrimination element fall away. We are in
complete agreement with the JCHR on this point and cannot see
how any other position is justifiable. It is nonsensical that
the CEHR should be able to support a case which discloses a discriminatory
breach of the Human Rights Act but must withdraw support if it
appears that the practice of breach is indiscriminate, and therefore
more widespread.
Example - A recent inmate disability discrimination
case involved continuous discriminatory treatment over a period
of time, during which the prisoner was transferred to another
prison (a common occurrence). There were, therefore, two prisons
involved in the same claim. The First Defendant (FD) was the Home
Office and the Second Defendant (SD) was a private contractor.
The claim against the SD settled on the human
rights aspect i.e. paraplegic wheelchair user prisoner unable
to move from chest down, handcuffed attending mother's funeral.
The discrimination/human rights case against FD is on going.
Had the case been funded by CEHR and the FD settled
before the SD, then the very important human rights point could
not be continued unless support continues in such cases. Under
public funding, the claim would also have been vulnerable, as
it was low value.
3.4 ADR
We are disappointed that the White Paper has specifically
excluded a power for the CEHR to provide conciliation and/or ADR
services for human rights cases, particularly in light of the
Government's pledge to use ADR in cases to which it is a party.[83]
In 2002, the Secretary to the Treasury, Andrew Smith, emphasised
the value of ADR saying, "This approach [ADR] is very constructive
because it is a lot cheaper, quicker and usually non-adversarial.
This way both parties share in the savings generated by sensible
dialogue."
We note that the JCHR advocated that the CEHR should
be given a general power to support ADR approaches to allegations
of breaches of human rights by public authorities. We are mindful
of the fact that privately-funded ADR is expensive, and there
is a need for accessible and affordable ADR. The Law Society therefore
supports the JCHR's approach.
4. Details of the proposed new powers to conduct
'general inquiries'
The Law Society welcomes the White Paper's commitment
to allow the CEHR to conduct general inquiries in relation to
human rights issues. However we do not believe that this goes
far enough.
The Law Society is concerned that the CEHR will not
be able to target particular bodies in its general human rights
investigations. It appears that the CEHR will be unable to carry
out an inquiry into the practices of a particular body where it
wishes to foster the promotion of a human rights culture within
an area covered by that body. It therefore appears that the Commission
may be compelled to investigate a far wider group/sector than
is necessary. For example, it is difficult to see how the CEHR
could investigate a particular contractor providing services to
the IND. Would the CEHR have to investigate the whole of the Home
Office to achieve its aims? Such an approach would be out of keeping
with past practice—see for example the CRE's general investigation,
into the Home Office operation of immigration control, with a
view to promoting good race relations.[84]
We also note that it has been proposed in the White
Paper that the CEHR will be able to initiate inquiries either
independently or at the request of the Secretary of State; that
it will have to publish terms of reference before launching an
inquiry and will be able as a last resort to apply to the Secretary
of State for permission to compel third parties to provide information
relevant to an inquiry. We note that the Joint Committee's view
was that the Secretary of State could ask, but not require, the
Commission to conduct a particular inquiry. We are of the view
that it is unacceptable for the Secretary of State to have either
power, firstly as it would make it difficult for the CEHR to refuse
a request from its sponsor department; secondly, as it may be
used as a means of circumventing a public inquiry as could perhaps
be seen with the CRE's investigation of the murder of Zahid Mubarek.[85]
The Committee thought it would be inappropriate to
require the Secretary of State's sanction in order to compel a
third party to provide evidence. However, it is the Law Society's
view, based on the minimum criteria set out in the Paris Principles,
that, to be a credible body, the CEHR must retain its independence
from Government. It should therefore be given sufficient powers
to carry out its functions effectively, without resort to the
Secretary of State. If a safeguard is needed, the appropriate
model would be a right for the third party to ask the Administrative
Court to set aside a notice to require evidence.
June 2004
77 EDM 1353 Equality Law. Back
78
21 June 2004 [2004] UKHL 30. See in particular paragraph 132 of
the speech of Baroness Hale. Back
79
Parliamentary answer by Patricia Hewitt on 26 May 2004. Back
80
Parliamentary answer by Patricia Hewitt on 7 June 2004. Back
81
Principles relating to the status and functioning of national
institutions for protection and promotion of human rights paragraph
B2. Back
82
Lord Filkin's parliamentary answer to question asked by Lord Lester
on 15 June 2004. Back
83
Initial pledge made by Lord Irvine on 23 March 2001, and further
commitment made on 8 April 2002. Back
84
Immigration Control Procedures: A general investigation (1985). Back
85
A formal investigation by the Commission for Racial Equality into
HM Prison Service of England and Wales. PART 1: The Murder of
Zahid Mubarek (2003). Back
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