10. Memorandum from the Disability
Rights Commission
The Disability Rights Commission was set up
in April 2000, as an independent statutory agency, following the
passing of the Disability Rights Commission Act 1999, with the
objectives of:
— Working to eliminate discrimination
against disabled people.
— Promoting equality of opportunity
for disabled people.
— Encouraging good practice in the
treatment of disabled people.
— Advising the government on the working
of legislation.
From its inception the DRC has recognised that
human rights are of enormous interest to disabled people. In September
2000 we published a guide to the Impact of the Human Rights Act
on Disabled People, to encourage understanding of and awareness
of the importance of the HRA. The fact that the original print
run of 6,000 had been distributed within six months is testimony
to the great resonance that human rights have for disabled people.
This documents supplements the written and oral
presentations made to the JCHR and responds specifically to the
questions posed by the Committee.
1. The JCHR's preferred option is for an
integrated Human Rights and Equality Commission. How would this
function best fit with the three options for an SEB?
1.1 It is the Disability Rights Commission
position that there should be a separate Human Rights Commission
with effective enforcement powers, including those in relation
to the full scope of Article 14, which would sit alongside a Single
Equality Body with the power to support strand-specific human
rights cases involving discrimination. Evidence to this effect
was given to the JCHR at an oral hearing.
1.2 Since then, the government has announced
its intention to introduce legislation to establish a single equality
body, although its end form has not yet been determined. In the
Government consultation document "Equality and Diversity:
Making it Happen", there was reference to the issue of human
rights in the context of an equality body, but no indication of
how the government would address this issue. In it's response
to the Government's consultation document, the DRC expressed it's
belief that there is a strong case for enabling a SEB to have
the power to support relevant cases connected with discrimination,
under the Human Rights Act. We went on to indicate our view that
a "federal" model, or a form of the "overarching"
model proposed in the consultation paper, would best ensure that
an SEB could both focus on strand and multiple discrimination,
as well as ensuring that disabled people continue to have input
into disability issues.
1.3 The Commission strongly opposed a predominantly
functional model (option 1) for the new arrangements, as this
would not deliver on the key task of ending disability and other
strand specific discrimination. It is the commission's view that
this model would also not give human rights the sufficient profile
and expertise required.
1.4 The single gateway/helpline (option
2) would similarly require extensive specialist expertise and
would not capture the potential advantages of a single equality
body. It is not clear how human rights would benefit from this
arrangement, particularly in relation to its promotion, which
is such a key aspect of any human rights body.
1.5 The Commission believes that the government's
third model, as presented, has the basis for an appropriate model
for securing disabled people's rights as well as advancing the
equality agenda across the strands, but that it was inadequate
as presented. The Commission proposed instead a "federal"
arrangement, which should be established in primary legislation,
comprising an "umbrella" body for common issues, including
strategic enforcement, and public sector duty, and units and appointed
committees with executive powers for each strand. Attached to
this paper is a copy of the Commission's response, containing
at paragraphs 5.2 and Annex 2 the full proposal for the commission's
model. This was supported by a number of disability organisations.
In this model, the "federal" body would deal with cross
cutting human rights and discrimination issues, whilst the strand
specific units would deal with human rights breaches in relation
to strand specific issues.
1.6 The DRC notes that the JCHR wishes to
have the full gamut of human rights issues dealt with by a single
equality (and human rights) body. Our position is that if this
approach were to prevail, the Commission nevertheless believes
that human rights would sit well within the federal model. There
is concern that taking on the full range of human rights covered
in the HRA could lead to a single commission having too wide a
range of duties, functions and powers and, as stated in the JCHR
report, risk "blunting the cutting edge of a more specialised
and focussed equality body". This was also raised in Colm
O'Cinneide's report for the three commissions "A Single Equality
Body: Lessons From Abroad". In addition, the JCHR indicates
in its report—as is our understanding—that Human rights
issues have been largely marginalized in equality bodies worldwide.
1.7 Incorporating human rights into the
federal model, however, would ensure that human rights would neither
swamp the commission nor be swamped itself; it could sit at the
federal level, with strategic enforcement and promotion taking
place alongside the strategic work on cross strand/multiple discrimination
issues. This would enable sufficient expertise to be established;
for the "federal" level to ensure that human rights
are mainstreamed throughout the organisation and to work on promotion
of human rights generally, placing such rights at the heart of
the organisation; and for the specific strands to ensure human
rights in specific equality areas. The alternative would be for
there to be a separate strand unit on human rights, which would
deal with those issues which are not strand specific (for example,
cases around the criminal justice system which do not involve
an additional breach of Article 14), with common issues dealt
with at the federal level—although having a separate strand
would seem appropriate only if there were to be significant casework
undertaken.
2. If two separate bodies were preferred,
what functions and powers relating to the protection of human
rights should an seb have?
2.1 We believe that any single equality
body, as structured above, should be able, in relation to discrimination
issues:
— Promote understanding and awareness
of Human rights and discrimination.
— Give guidance and advice to Ministers
and Parliament on discrimination and human rights.
— Provide advice and assistance to
the public on human rights and discrimination issues; and individual
casework where appropriate.
— Promote access to alternatives to
litigation in disputes.
— Act as Amicus Curiae in the courts
in cases involving discrimination and human rights issues (for
example, non-resuscitation notices).
— Intervene as third party in legal
proceedings on questions of principle involving discrimination
and human rights.
— Take cases in its own name and apply
for judicial review in cases involving discrimination and human
rights issues.
3. Given that Northern Ireland already has
a Human Rights Commission and Scotland proposes to establish one,
the JCHR proposes a HRC for England and Wales only. But there
should also be a UK wide body to co-ordinate (an Advisory Council
on Human Rights). What should its composition be, what funding
would it need and how should it be held to account?
3.1 In it's evidence to the Committee, the
Commission stated that a separate Commission is needed for Scotland
because of the fact that the HRA specifically covers the Scottish
Parliament and the Executive independently of its application
to UK and GB institutions and governing bodies. These human rights
issues arising out of the re-establishment of the Scottish Parliament
should be best considered by a Scottish body, rather than an UK
body. A specifically Scottish Commission will be best placed to
operate effectively within the Scottish arena and the agendas
and timetables which are set therein. A Scottish Human Rights
Commission will also be best placed to work alongside and to develop
effective partnerships with Scottish bodies including the Scottish
Parliament, Scottish Executive, the legal profession and other
essential stakeholders.
3.2 The Commission also stated that, to
sit alongside the HRCs for Scotland and Northern Ireland, there
should either be a Commission for England and Wales or separate
Commissions for England and Wales. We believe that more discussions
need to be had in Wales about the desirability of a separate Commission
for Wales.
3.3 However, in light of the Committee's
comments as to the integration of human rights issues within a
single equality body, the Commission believes that any questions
in relation to devolution must take on board the equalities remit:
it is our understanding that many respondents to the Government's
consultation paper "Making it Happen", whilst appreciating
that particular measures have to be taken in relation to Scotland,
supported a UK wide equality body, with Scotland and Wales being
able to determine country specific policy issues. This was also
our view. If human rights are to be fully integrated into any
single equality body, the relationship with the Scottish Human
Rights Commission—which seemingly will not be able to take
on any litigation in this area—will need to be carefully
considered. If the Scottish Human Rights Commission is not to
have the power to take individual cases, the DRC or in future
an SEB in Scotland must be able to support relevant cases connected
with discrimination under the Human Rights Act.
3.4 The Commission has also recommended
that the Government establish a panel of experts to advise the
Government on taking forward the issue of the single equality
body. It is our view that such an expert "task force",
which we would envisage as being set up on similar lines to the
highly effective Disability Rights Taskforce, could also address
the Human Rights Commission issues and perform the function of
the UK Human Rights Advisory Council as proposed by the Committee.
4. The JCHR has listed functions and powers
for a HRC:
(a) Promote understanding and awareness
of HR.
(b) Conduct research and fund educational
activities.
(c) Conduct inquiries into public policy
and practice.
(d) Give guidance and promote best practice
in public authorities.
(e) Give guidance and advice to Ministers
and Parliament.
(g) Provide advice and assistance to the
public on finding help to protect their rights.
(h) Promote access to alternatives to
litigation in disputes.
(i) Act as Amicus Curiae in the courts.
(j) Intervene as third party in legal
proceedings on questions of principle.
Are these the essential powers and functions?
How might these be given effect?
5. Should it also be able to:
(a) Provide help (including financial
help) to individuals to take test cases?
(b) Be able to take cases in its own name
where an individual victim cannot be identified?
(c) Apply for judicial review in its own
name?
4.1 The powers listed at question 4 are,
in the Commission's view, the essential powers and functions.
However, the Commission also believes that it is essential that
any Human Rights Body have the powers and functions indicated
at paragraph 5. It should be able to provide help, including financial,
to individuals to take test cases: the Commission endorses the
view expresses at paragraph 153 of the JCHR report, in that this
ability would provide a useful tool for the commission to clarify
the law in strategic cases. It would be used sparingly—we
would not envisage an overly litigious commission—but would
be crucial to the litigation strategy. We would also agree that
the power should ideally be confined to cases where other legal
aid and assistance are not available.
4.2 As part of its strategic legal strategy,
the Human Rights Body should also have the power to take cases
in its own name where an individual cannot be identified and to
apply for judicial review proceedings in its own name: the former
would enable legitimate issues to be pursued by the commission
but without tying rulings to the protection of a given individual's
or set of individual's circumstances; whilst the latter would
enable the commission to, where necessary, tackle Convention rights
breaches by public bodies without having to have been itself a
victim of those breaches. These powers would undoubtedly be used
sparingly and would, in any event, form part of a legal strategy
aimed at having recourse to the courts in a minimum of cases for
maximum impact—of furthering the human rights agenda and
ensuring its mainstreaming in society.
4.3 In addition, there is no mention of
the Commission being able to advise individuals and public bodies
as to the provisions of the Convention. In our view this is vital
for ensuring basic, accurate advice for the public; in addition,
dealing with such queries has, in the Commission's view, proved
vital in indicating what particular problems are with the legislation
"on the ground", and thus in informing promotional and
educational work.
6. The JCHR thinks the HRC should be accountable
to Parliament rather than the Government. Do you have views on
the details of how the HRC would be accountable and its budget
set? Is this affected by whether or not it is integrated with
an SEB?
The Disability Rights Commission has already
said in evidence to the Committee that it believes that the Commission
should be accountable to Parliament rather than the Government.
The Commission would envisage this being by means of reporting
requirements, through the JCHR but does not at this stage have
further views. Its budget would be set by Parliament. Should the
full gamut of human rights be integrated into an SEB, it is the
Commission's view that there may need to be a different committee
to which reporting would be made—for example, an extension
of the JCHR to a Joint Committee on Human Rights and Equality.
7. The JCHR thinks that Parliament should
be consulted on the appointment of Commissioners. How do you think
they should be appointed, and is this view affected by whether
or not it is integrated with an SEB?
We believe that appointments to the Commissions
should be made through a process of open public appointments conforming
to the "Nolan Principles of Public Life", by the Westminster
and Scottish Parliaments (and if appropriate, by the Welsh Assembly).
In view of the scope of the Human Rights Act
it may be appropriate for the Chair and members of the England/Wales
Human Rights Commission to be appointed by the Joint Committee.
8. If there were an integrated body, Commissioners
could be appointed to represent either strands (including Human
Rights) or functions. Is there a preferred option? What should
be the balance between part-time and full-time Commissioners?
Is this affected by whether or not the body is integrated with
an SEB?
The Commission's view, as set out in its response
to "Equality and Diversity: Making it Happen", is that
the "federal" level of the Commission would comprise
the six Chairs of the Strand Committees (see below), as well as
other Commissioners as appropriate including representatives of
business, trade unions, Wales and Scotland. The Commission does
not at this stage have firm views as to whether the Commissioners
should be part or full-time.
7 May 2003
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