19. Memorandum from The Law Society
1. INTRODUCTION
The Law Society is the professional body for
solicitors in England and Wales. The Society regulates and represents
the solicitors' profession, and has a public interest role in
working for reform of the law.
The Society is pleased to have the opportunity
to respond to the Joint Committee's consultation on the structure,
functions and powers of the proposed Commission for Equality and
Human Rights (CEHR).
2. GENERAL COMMENTS
In the past, the Society's position has been
to advocate the creation of a free-standing Human Rights Commission.
In our July 2001 evidence to the JCHR, given jointly with the
Bar Council, the Society supported the creation of a Human Rights
Commission with promotional, monitoring and enforcement functions.
The Law Society continues to support the establishment of a body
which has as its aim, or one of its aims, the promotion of a human
rights culture to ensure that respect for fundamental rights becomes
embedded in the constitutional arrangements of the United Kingdom
and in society as a whole. The purpose of such a body should not
only be the protection of human rights, but also the monitoring
of compliance with them.
Nevertheless, we have concluded that a combined
commission for equality and human rights is better than no human
rights body, and have therefore decided to support the proposed
CEHR.
The Law Society supported the Human Rights NGOs
Framework Response to the JCHR's consultation last March, and
is pleased that the Government has announced that a CEHR will
be established by 2006. However, we continue to have concerns
about whether the CEHR will be sufficiently resourced and whether
the human rights function of the CEHR will be truly integrated
into the Commission.
We are pleased to be able to contribute once
again to the consultation process and would draw your attention
in particular to the Society's views on the CEHR's power to litigate
at Annex 1.
3. NATURE AND
EXTENT OF
THE NEW
BODY'S
HUMAN RIGHTS
REMIT AND
ITS RELATIONSHIP
TO THE
EQUALITY FUNCTIONS
We believe the credibility of the CEHR will
be enhanced if it is promoting and enforcing laws that give a
consistent level of protection across all the strands (including
age, religion and sexual orientation). We therefore continue to
support calls for a comprehensive Single Equality Act with a purposive
approach.
4. HUMAN RIGHTS
RELATED POWERS
OF THE
CEHR
The Law Society in its response to the JCHR
consultation last May agreed with the JCHR that any body should
have the following powers in relation to human rights:
— to promote understanding and awareness
of human rights (including not only Convention rights but also
rights embodied in international human rights instruments which
bind the UK);
— to conduct and commission research
and provide financial or other assistance for educational activities
in connection with promoting understanding and awareness of human
rights;
— to conduct inquiries into matters
of public policy and practice relating to human rights;
— to give guidance to, and promote
best practice in, public authorities in relation to human rights;
— to offer guidance and advice to Ministers
and to Parliament in connection with human rights;
— to publish reports on any of the
above matters;
— to assist in the provision of advice
and assistance to members of the public on ways to find help to
protect, assert or vindicate their rights;
— to support and promote access to
alternatives to litigation in disputes relating to the protection
of human rights;
— to apply to the courts for permission
to appear as amicus curiae in proceedings that involve or are
concerned with human rights; and
— to intervene as a third party in
legal proceedings relating to questions of principle involving
human rights.
In addition, we considered the following powers
of significant importance:
— to assist other parties in funding
legal proceedings of appropriate cases;
— to work towards the development of
a Human Rights Charter; and
— to conduct investigations, following
allegations of systematic abuse, not only in public bodies, but
also non-Governmental bodies, to promote human rights in situations
where victims are inhibited to come forward.
The Law Society strongly believes that the CEHR's
approach to enforcement must be flexible, but that there must
also be a clearly and publicly articulated enforcement strategy
that makes appropriate use of conciliation, ADR and legal action,
and that legal action must include the conduct of formal investigations.
The Society firmly supports powers for the new
commission to investigate complaints and bring complaints in its
own name as indicated below.
In its response to the March consultation, the
Law Society argued that any body should have the powers and resources:
— to provide assistance (including
financial assistance) to individuals to take test cases relating
to Convention rights questions;
— to be able to take cases in its own
name where a victim of a breach of Convention rights cannot be
identified; and
— to apply for judicial review in its
own name in relation to questions connected with human rights.
We believe that while litigation would not be
its primary function, the CEHR would be well placed to contribute
constructively to the litigation process by providing advice and
assistance to litigants or intervening in appropriate cases. The
Equal Opportunities Commission in particular has been able to
use its powers to bring proceedings to great effect and has brought
about significant developments in the law as a result.
We believe that an independent human rights
body should also be empowered to bring test cases independently
of the need for an applicant to proceedings to be a "victim"
for the purposes of Section 7 of the Human Rights Act. Although
we do not believe that it should be seen as a complaints-driven
body, we believe that it should have the power to bring cases
in its own name.
The Law Society has produced a separate position
paper which discusses in detail the powers to litigate which the
Society believes the CEHR should have. The paper is attached as
Annex 1 [not printed] and has been sent to members of the
CEHR Task Force, David Lammy MP and Jacqui Smith MP to contribute
to discussions around this issue.
5. ARRANGEMENTS
TO GUARANTEE
THE CEHRS
ACCOUNTABILITY AND
INDEPENDENCE
This body should have the power and resources
to protect and promote human rights and provide advice that is
independent of government. In addition, to achieve maximum results
this body should be assisted by consistent legislation that will
eliminate tendencies to create a hierarchy of discrimination.
Funding
Adequate levels and secure streams of resources
are vital to the effective functioning of the new body. The importance
of establishing early credibility would mean that funding levels
for the new body would benefit from independent expert review,
and may need to supersede the total combined budgets of existing
equality commissions. Funding arrangements must be wholly transparent.
It is vitally important that the commission
is properly funded by central Government, but should also be able
to raise funds from other sources (for example, the European Union).
The Joint Committee would be well placed to ensure that the Government
does meet the funding needs of the CEHR.
Structure
We believe that the CEHR should report directly
to Parliament through the JCHR, and that it should be required
to submit an annual report.
The Society believes that the structure should
ensure that no issue is submerged by any other (eg equality issues
submerged by human rights issues or vice versa) in order
to maintain a balance of potentially competing rights.
We believe that a horizontal structure, according
to function (education, research etc) rather than issue will best
ensure incorporation of human rights into the work of the commission,
and even distribution of funding across "strands".
Appointments
The Law Society recommends that the appointment
of the Chair and commissioners is undertaken by the Secretary
of State strictly following the Code of Practice and Guidelines
established by the Office of the Commissioner for Public Appointments.
In line with the Northern Ireland Act 1998, we believe that the
Chair should be appointed for no more than five years, and that
other commissioners are appointed for no more than three years
at a time.
It is essential that the commission has strong
leadership and effective management. There should be no dilution
of the expertise that has been built up by the existing commissions,
and there should be a creative and flexible approach to skill
sharing.
We support provisions to appoint individuals
through transparent procedures. We advocate that part time service
arrangements be as flexibile as possible so not to discriminate
against any section of applicants, and encourage equality and
diversity considerations for all appointments.
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