Annex
LAW SOCIETY
POSITION ON
THE POWER
OF THE
COMMISSION FOR
EQUALITY AND
HUMAN RIGHTS
(CEHR) TO LITIGATE
1. This paper sets out to discuss whether
the CEHR should have a litigation function in relation to human
rights matters (whether or not they also raise an equality issue),
and what sort of litigation function this might be. Assuming that
it is decided that the CEHR should not have an unlimited litigation
functions, the paper looks at what minimum litigation function
it should have. Finally, the paper will look at the problem of
discrimination cases falling within the strands—and therefore
giving rise to a litigation function—but also raising human
rights issues.
2. Litigation powers can be divided into
the following—
(a) intervening in proceedings as a third
party;
(b) taking over a case begun by an individual
who, for some reason, is unable to pursue the matter;
(c) providing legal or financial support
to individual victims; and
(d) initiating cases in the name of the organisation
without a victim.
3. There should be nothing controversial
about giving the CEHR powers (a) and (b) above. It is understood
that the Government's reservations about litigation powers in
human rights matters stems from (i) a belief that there is no
unmet need for legal advice about human rights matters, and (ii)
a desire not to open a new source of litigation. Neither of these
concerns would be compromised by power to intervene in, or to
take over, proceedings which are already in existence. In both
cases, the process is controlled by the court itself, which can
determine whether the case merits a third party intervention or
whether a case should be allowed to continue notwithstanding the
absence of one of the parties. The Northern Ireland Human Rights
Commission was permitted to intervene in Amin, and Wilson
v. First County Trust became Wilson v. Secretary of State
for Trade and Industry in the House of Lords, where neither
of the original parties appeared. Similarly the Court of Appeal
allowed RADAR to take over a community care case where the claimant
had died (R v Gloucestershire CC and SS for Health, ex parte
Barry; R v Lancashire CC, ex parte Royal Association for Disability
and Rehabilitation and Gilpin (1997) & (1998) CCLR 19.
In such cases, the CEHR would be assisting the court and maintaining
access to justice. Intervention or substitution will be at the
discretion of the court, which is best placed to judge whether
it will be assisted by an intervention and whether a case is of
such public interest that it should proceed notwithstanding the
inability or unwillingness of one of the parties to continue.
4. The rest of this paper will deal with
the power to provide financial and legal support to individuals
and the power to initiate proceedings in the name of the CEHR.
5. The establishment of bodies charged with
the promotion and protection of human rights is in accordance
with our international obligations. Thus, by the Paris Principles,
which are now widely regarded as the minimum standard for national
human rights institutions, the United Nations established guidelines
for the promotion and implementation of human rights standards
by national institutions. In October 1991 the UN Centre for Human
Rights convened an international workshop to review and update
information on existing national human rights organisations. This
workshop made a series of recommendations on the role, composition,
status and functions of national human rights organisations, which
have become known as the Paris Principles. They were endorsed
by the UN General Assembly in its resolution General Assembly
Resolution 48/134 of 20 December 1993.
6. General Assembly Resolution 53/144:
By its resolution on 8 March 1999 the UN General Assembly
recognised that everyone has the right, individually and in association
with others, to promote and to strive for the protection and realisation
of human rights and fundamental freedoms at the national and international
levels, and States have obligations to put in place measures necessary
to enable this to happen. This Declaration was further advanced
by the Declaration on the Right and Responsibility of Individuals,
Groups and Organs of Society to Promote and Protect Universally
Recognised Human Rights and Fundamental Freedoms General Assembly
Resolution 53/144 adopted by consensus on 9 December 1998.
7. As the Secretary of State said in his
address at the Law Society on 17 February, the primary goal of
the Human Rights Act (HRA) is to promote a human rights culture,
in which public authorities and private individuals subscribe
to human rights principles and a shared understanding of the fundamentals
of a democratic society, "the emphasis must be on promotion,
good practice and awareness raising". However, as he also
made clear, there are occasions when this promotional goal needs
to be backed by the credible threat of sanctions, in the form
of resort to litigation, "without lawyers, we cannot make
compliance work as it needs to. And compliance is a key foundation
of the culture."
8. This understanding led Parliament to
give litigation powers to the statutory equality commissions.
And those powers have played a vital part in the develoment of
equality law in the past 25-30 years. The Equal Opportunities
Commission has been a most effective driver of the implementation
of equality principles, in particular those derived from European
Community law, through applications for judicial review in its
own name and by supporting individual litigants. Case law under
the Race Relations Act has also been developed through the Commission
for Racial Equality's support for individual cases. It is assumed
that the same understanding has led the Government to conclude
that the CEHR should have direct litigation powers for all the
equality strands.
9. It is not immediately apparent why a
power to litigate should be excluded for HRA cases. Although public
funding is available, and human rights are a priority category
for the LSC, is it not more logical, and efficient, to have funding
administered by a body which is expert on this issue, and which
has more of a strategic sense? Moreover, the very restrictive
means test for public funding limits the scope for strategic litigation
to cases of the decreasing group of people who fall within the
financial criteria. And even in relation to public interest cases,
it must still be shown that the individual claimant is likely
to derive a personal benefit. There may be cases where the only
available remedy is a declaration of incompatibility, from which
the individual will in fact derive no direct benefit.
10. Assuming that the Government remains
unwilling to give the Commissioner a general power to litigate
HRA cases, are there any cases in which the CEHR should nonetheless
have that power?
11. The most obvious case is one in which
the CEHR is litigating a discrimination issue in any event. It
would make a nonsence of the very notion of an equalities and
human rights commission if, in one and the same case, it was empowered
to bring or support proceedings arising from statutory anti-discrimination
proceedings but debarred from doing so in relation to the HRA
elements of the self-same case arising from the self-same facts.
Such an absurdity would bring the commission into disrepute. As
a very minimum, therefore, we recommend that the CEHR should
be able to bring proceedings in its own name or to support HRA
proceedings in any case in which it also determines to bring or
support proceedings under the equalities legislation. Moreover,
having brought such proceedings, it should be able to continue
them under the HRA alone if the equalities aspect of the case
falls away. Take the example of the CEHR supporting a case
in respect of inhuman or degrading treatment at a prison on the
basis that such treatment is reserved exclusively for black prisoners.
It would be senseless if the commission had to withdraw support
because it became clear that such treatment was accorded to all
prisoners without discrimination.
12. In addition, the Commission should be
able to bring or support any HRA case which will promote equality
within the six strands. The Government has recognised the importance
of promotion of equality, and of the role which litigation can
play. There will be cases—maybe few in number—in which
the promotion of equality may result from the provisions of the
HRA rather than from the equality legislation. For example, some
of the equality legislation will relate to employment only, whereas
the ECHR extends beyond that to areas such as education, freedom
of expression, freedom of association. While employment is an
important area, promotion of equality goes beyond the workplace
into other areas of a person's life.
13. Importantly, some equality cases have
been decided on the basis of the right to respect for private
and family life rather than under the anti-discrimination provision
Article 14: for example the "gays in the armed services"
cases Smith & Grady v United Kingdom (2000) 29 EHRR
493. Another striking example is Pretty v United Kingdom
(2002) 35 EHRR 1. See also Botta v Italy (1998) 26 EHRR
241. Such cases depend on the notions of personal dignity and
autonomy which are at the heart of the anti-discrimination legislation.
Similary, equality issues may arise or be determined under Article
9 alone, eg the wearing of headscarves in schools and universities.
Accordingly, we recommend that the CEHR should be able to bring
or support HRA proceedings—independently of a point under
the equality legislation—where to do so will promote equality
among one or more of the strands which the CEHR is intended to
represent. While going beyond the equality legislation, such
a power would represent a principled addition to the CEHRs powers
in relation to promotion of equality. See, by analogy, Home
Office v Commission for Racial Equality [1981] 1 All ER 1042,
Woolf J (Commission empowered to conduct formal investigation
into immigration control: although immigration control not outlawed
by the Act, discrimination in that area could affect equality
of opportunity and relations between persons of different racial
groups.)
14. But once one recognises that litigation
can be a suitable tool for the promotion of equality, it is hard
to see a principled distinction which prevents the same commission
from exercising a power to litigate in the HRA field. It can be
expected that it will take into account its limited resources,
the availability of other sources of funding and the need to act
responsibly and not clog up the courts with academic issues.
March 2004
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