4. Memorandum from the British Institute
of Human Rights
INTRODUCTION[16]
As an NGO dedicated to promoting a better understanding
of human rights across society, particularly as they relate to
disadvantaged and vulnerable communities across the UK, the British
Institute of Human Rights (BIHR) welcomes the report of the Joint
Committee on Human Rights (JCHR) and its recommendation that a
human rights commission be established. BIHR supports the view
that an integrated human rights and equality commission is the
preferable option. [17]
QUESTIONS 1 AND
2
BIHR thinks that there are good conceptual reasons
for establishing an integrated body, and notes that equality is
treated as a fundamental human right in the core international
human rights treaties. We believe that human rights should be
mainstreamed throughout the equalities strands and that a commission's
functions and powers should also embrace human rights issues that
do not have an equality aspect.
In particular, BIHR believes that human rights
reinforce equality provisions, rather than conflict with them.
As our report "Something for Everyone" (BIHR, Dec 2002)
indicated, "the majority of respondents were positive, often
seeing equality and human rights issues closely linked—perhaps
more closely than they are perceived to be by those working in
the equalities field" (p 86). [18]
QUESTION 3
We believe the Joint Committee's report raises
several issues in this regard that we would wish to be clarified
further.
The issue of devolution
Whether there should be a UK-wide and/or England/Wales
human rights commission relates closely to the overarching devolution
question and the extent to which human rights and related matters
are devolved to the various executive and legislative authorities
across the UK. At present, it is not always clear to what extent
the devolved authorities can consider reserved matters which relate
to their jurisdiction. As Mark Lazarowicz MP has pointed out (Conference
on Scottish Human Rights Commission, February 2003) with respect
to Scotland, there are concerns about the potential blurring of
a remit of a Scottish Human Rights Commission if reserved matters
are not further clarified, in particular with respect to its relationship
with existing equality bodies. These arguments and others suggest
that the most appropriate model is to establish separate bodies
for each legal jurisdiction in the UK. As the Northern Ireland
Human Rights Commission stated in its initial submission to the
Committee's consultation in July 2001, "With the recent devolution
of powers to Scotland, Wales and Northern Ireland, it would be
retrogressive to create a single Commission for the whole of the
United Kingdom". Further, there is evidence to suggest that
not having a UK-wide commission would avoid the risk that the
body that is established would adopt a "UK" response,
when in fact it may be speaking on behalf of England/Wales only.
In view of the ongoing debate about the questions
of equality and devolution, we believe that establishing a UK
Advisory Council on Human Rights, as proposed in the JCHR report,
would help to determine the best way forward.
Preliminary arrangements
We also support the JCHR's suggestion that a
non-statutory UK Advisory Council on Human Rights could serve
other important functions, particularly as an interim arrangement.
Evidence has shown that it can take a while for a human rights
commission, given its evidently wide mandate, to identify its
strategy and work programme and structures in operation. Yet it
is precisely in the early days of a commission's existence when
attention is particularly focused on it and public expectations
are high. To have an interim arrangement that would work out some
of these issues would help to lay the groundwork for any institution
which was then set up. It would also help to clarify the relationship
of a human rights commission with other statutory bodies in existence,
for example, through drafting Memoranda of Understanding,
QUESTIONS 4 AND
5: FUNCTIONS AND
POWERS
In general, BIHR agrees with the JCHR's proposals
for the commission's powers and remit. We wish, however, to comment
specifically on the following:
Promotional mandate
BIHR believe that it is essential for a human
rights commission to be a promotional body. This is central to
the work of a human rights commission, and would require it to
identify the key areas, priorities and strategy for its work.
In order to create a human rights culture it is critical that
a commission tries to influence the public perception of human
rights, as NGOs on their own are not able to do this to the degree
that is required.
Inquiries
BIHR believes that it is crucial for a human
rights commission to be able to conduct public inquiries and investigations
and to be provided with the powers (such as those proposed by
the JCHR) to do so effectively. This would be an important element
of any commission's promotional role.
Experience from other jurisdictions (eg South
Africa) indicates that public inquiries can be a powerful way
of increasing the accessibility of a commission. If handled correctly
and the possible outcomes are made clear to those involved, public
inquiries can enhance public participation and be in themselves
a cathartic process for dealing with grievances, offering the
chance to settle them in a non-adversarial manner.
We believe that a commission should have the
power to initiate inquiries of its own. This would enable it to
ensure that the topics it selects feed into the wider strategic
objectives which it has chosen to focus on. BIHR thinks that it
would be inappropriate and potentially damaging to the credibility
of any commission were the government to be given the power to
mandate the Commission to undertake an inquiry.
Guidance
BIHR's report, Something for Everyone,
demonstrated a significant lack of awareness of human rights in
the voluntary sector. It is therefore particularly important that
any human rights commission should also have the power to give
guidance to the voluntary sector, in addition to public authorities.
This needs to be clarified.
Provision of advice and assistance to public
There needs to be a balance between a commission
being accessible to the public and not being swamped by cases.
The commission needs to have the power to receive
calls from the public, through an advice line for example. This
would enable the commission to catalogue issues that come to its
attention and refer cases, where necessary, on to other appropriate
agencies or organisations. Evidence from existing human rights
commissions indicates that providing such a service has a number
of benefits, including enhancing the accessibility of the commission
to the public, and enabling it to identify key areas of concern
and patterns of violations that may need more attention.
On the other hand, a human rights commission
cannot answer all queries directed to it and pursue all cases,
and it should refer cases to other bodies, be they NGOs, or statutory
bodies, to deal with where appropriate. There should be a clear
referral process in this regard and Memoranda of Understanding
should be drafted to facilitate this.
Litigation
It is important that consideration should be
given to a commission having the power to take test cases, in
particular if it is the case that it has the power to do so in
respect of equality issues (levelling-up). A commission would
need to have the power to submit amicus curiae briefs or
make third party interventions.
The experience of other commissions indicates
that the failure (or inability) of a human rights commission to
become involved in cases in which it might be expected to become
involved, detracts from its credibility and independence. Even
if the commission does not have the power to bring such cases,
it is unlikely that these reasons will always be understood; all
people will see is a commission that does not seem to be involved
in the issue.
Although a commission is likely to find that
at times it will need to play a role in court cases, it is important
to stress that its primary function should be preventive (ie promotional)
rather than curative (ie court-based).
Mediation
As BIHR's submission of July 2001 indicates,
(Mediation: A Tool for Mainstreaming Human Rights?) we
do not see any contradiction in a body having the power to set
up an independent scheme that offers mediation services on human
rights issues. Having this power avoids the danger that a commission
will be too litigious and enables it to pursue more practical
solutions on the ground, out of the media light that litigation
(which serves other purposes) may entail. This power need not
compromise human rights standards; these must be upheld as the
bottom line and not all disputes are suitable for mediation. But,
as Something for Everyone indicates, human rights issues
are often about balancing conflicting rights and mediation plays
a natural role in this regard. Providing a commission with this
power may also contribute to its ability to be perceived a trustworthy
body that does not necessarily take an adversarial stance and
therefore does not set up parties against each other in a win/lose
situation.
In summary, BIHR believes that it would be appropriate
for a commission to follow the model of the Disability Rights
Commission in subcontracting an independent mediation service
to which individual callers could be referred when appropriate.
QUESTIONS 6, 7 AND
8: ACCOUNTABILITY AND
INDEPENDENCE
Accountability and budget
To whom a commission is accountable plays a
central role in its perceived credibility, independence and effectiveness.
We support the proposal that the JCHR should
be directly involved in setting the budget of the commission.
As experience from Northern Ireland and elsewhere has indicated,
it is essential that there be an open procedure for determining
the budget, and that the commission itself be accountable to Parliament.
In broader terms of accountability, we believe
that there needs to be a balance between ensuring the independence
of the commission by detaching it from the influence of a minister
or particular government department, but ensuring that there is
support within government for its work. If there is to be a "parent"
department, then the issue is which one. We believe there are
difficulties with locating such an institution within the Lord
Chancellor's Department because it may give the erroneous perception
that a human rights commission is primarily a legal body or a
body for lawyers. Attaching it to another department may also
mean it is perceived as being limited in some other way.
If the central engagement is with Parliament,
rather than the executive, this reinforces the credibility of
the commission and can also prompt a more constructive and regular
relationship with the legislature. The question of who determines
the budget is complex, and requires careful thought. In countries
where the budget is appropriated through a government department,
but the commission reports to Parliament (as in South Africa)
this has been found to have numerous drawbacks. One option worth
considering is placing the determination and accountability for
the budget directly in the hands of Parliament thereby enabling
the commission to "be able to emerge from the shadow of the
executive".[19]
Appointments
The manner in which Commissioners are appointed,
and the people who are selected to sit on such bodies, are the
first signs to the public and observers of how credible and independent
such a body is likely to be. We recommend that Parliament should
not simply be consulted by those appointing, but that it should
actually appoint. The importance of having a transparent and open
selection process feeds directly into the credibility of the commission,
an essential requirement for a new body. As experience from numerous
jurisdictions has shown, having an process that is conducted outside
of government, through Parliament (perhaps the JCHR or other body),
with open interviews and clear criteria for selection is crucial.
We believe there is a need for further discussion
on the role of a commissioner and the distinction between his
or her tasks and those of staff. Having full-time Commissioners
can seem to blur their respective roles. Even where there are
part-time Commissioners there have been concerns in existing commissions
about the hierarchy between Commissioners and staff, with the
latter doing the majority of the day-to-day work and implementing
Commissioner decisions, but yet not being involved in decision-making
and policy. This has raised further difficulties when staff have,
as is apparent in some instances, been more qualified in human
rights than the Commissioners themselves. There needs to be more
careful consideration of what the Commissioners are supposed to
be doing, whether they are simply the public face of the commission
or whether the commissioners are bringing expertise to the issues.
Whilst there are legitimate concerns about whether
it is feasible or desirable to have a body full of human rights
"experts" it would seem sensible to have those appointed
to the commission to be sufficiently versed in basic human rights
standards to enable effective decisions to be taken. Clear criteria
for selection in this regard would be important. However, appointing
all commissioners for the same skills may not be appropriate.
It would be useful for example, for the commissioners as a group
to have some legal knowledge, some media expertise, some training
experience, and so on. Such experience should match the functions
of the commission, so that if there is a litigious function some
commissioners should perhaps be appointed on this basis.
Other issues
The Human Rights Act, as the JCHR indicates,
is an important catalyst for discussing the possibility of having
a human rights commission. There is a need for the Human Rights
Act to be more integrated across public sector work and it is
clear that any such body should see the promotion and protection
of the Human Rights Act as central to its work.
However, it is important to stress that the
remit of any body should not be limited to the Human Rights Act.
As the approach of JCHR itself has indicated, there is a clear
need to draw upon other standards to which the UK government is
bound internationally. Economic, social and cultural rights are,
on the whole, not part of the Human Rights Act and it is important
that these are not omitted from the mandate of any human rights
commission. These are issues that are likely to be seen as relevant
to many people, can often cut across political and other traditional
divides, and are therefore essential in developing a culture of
respect for human rights in the country. Having a broad perspective
will be important for the promotion of human rights and moves
away from the idea that human rights are simply issues to litigate.
The effectiveness of a human rights commission
depends on its ability to prioritise effectively and determine
a clear strategy for its work. Restricting the power of a human
rights commission to examine certain categories of rights (particularly
when it is not necessarily easy to categorise them) and not others
restricts its power to do so. As Something for Everyone
demonstrated there is clear support for a commission being able
to look at economic, social and cultural rights. Further, the
UN Economic, Social and Cultural Rights Committee and national
human rights commissions worldwide have stressed the importance
of the role of national human rights institutions seeing these
rights as part of their remits.
22 May 2003
16 BIHR is grateful to Dr Rachel Murray, Birkbeck College,
London, for her contribution to this submission. This submission
does not necessarily represent the views of any individual governor
of BIHR. Back
17
[In this submission we use the phrase "human rights commission"
to refer to those aspects of any future integrated commission's
work that relate to human rights (whether this includes equalities
issues or not).] Back
18
BIHR, Something for Everyone: The impact of the Human Rights
Act and the need for a Human Rights Commission, December 2002.
This report, which was funded by Comic Relief, looked at the impact
of the Human Rights Act on the voluntary sector. Back
19
H Corder, S Jagwanth and F Soltau, Report on Parliamentary
Oversight and Accountability, July 1999, submitted to the
Office of the Speaker, South African Parliament, http://www.pmg.org.za/bills/oversight&account.htm>,
para 7.3. Back
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