Joint Committee On Human Rights Written Evidence


20.  Memorandum from Liberty

  Liberty (The National Council for Civil Liberties) was founded in 1934, and is one of the UK's leading civil liberties and human rights organisations. Liberty works to promote human rights and protect civil liberties through a combination of test case litigation, lobbying, campaigning and research.

  1.  Liberty welcomes the proposed creation of a Commission for Equality and Human Rights ("the Commission"). We believe that the Commission will help cultivate a culture of respect for human rights in the United Kingdom. When the European Convention on Human Rights was incorporated into domestic law through the Human Rights Act 1998 (HRA) we hoped that human rights would be "mainstreamed" into the practice of public bodies. In the three years since incorporation this mainstreaming has been limited. The lack of any public body with an educational or informational role has left a gap between human rights litigation in the courts and public awareness. Liberty believes a Commission will help fill this vacuum.

  2.  We are aware that concerns have been expressed about the desirability of a joint commission and the compatibility of human rights and equalities. These questions have been comprehensively examined and addressed by Sarah Spencer of the Institute for Public Policy Research[151]. She argues persuasively that equalities and rights are complementary rather than conflicting, and we agree with her arguments and conclusions. Liberty believes that the underlying principles of the equality and human rights agendas are inseparable. The last three years of human rights litigation have demonstrated how common aspects of two agendas outweigh any possible conflict. For example, in Ghaidan v Mendoza[152], which concerned the right of same-sex couples to succeed to a tenancy following of the death of a partner, the Court of Appeal used the HRA to rewrite legislation so that references to "living together as husband and wife" had to be read as including Article 14[153]. Similarly, the House of Lords is due to consider the discriminatory nature of Part 4 of the Anti-Terrorism Crime and Security Act 2001, which allows detention without trial of foreign nationals. The fact that detention powers have only been used against Muslims demonstrates the extent to which the race equality and human rights agendas have become entwined.

  3.  As mentioned above, we acknowledge that one of the biggest disappointments since incorporation has been the lack of any public information or educational campaign intended to promote a culture of rights. Since incorporation, "human rights" have been placed in the context of courts and lawyers. There has been a considerable volume of human rights litigation but this has largely remained beyond the reach of the public. The vast majority of people rarely come into contact with the courts. Public awareness of the HRA is often be limited to high profile criminal cases where it has been used by defendants to argue fair trial rights or by convicted offenders to argue against tariffs. Consequently the HRA is often perceived as a tool for criminals. A wider effect of the HRA is also blunted by the necessity of courts to apply thresholds, in order to ascertain whether convention rights have been breached. We are aware of incidents which would not succeed in court because of these thresholds. Whilst elderly people in care homes being made to eat while on the toilet may be degrading, it will not breach Article 3[154], so no human rights abuse can be "seen" by the courts.

  4.  Another area where there is a gap in the understanding of human rights is knowledge of jurisprudence. Government departments and large public agencies may be able to interpret and apply complex court precedent, but this will usually be beyond the capability and resource of smaller, local, public bodies. A prime function of the Commission should be to explain the implications and applicability of domestic and European decisions.

  5.  Liberty is aware that there has been controversy regarding any litigation function that the Commission might have. Discussion has centered on whether the Commission should bring litigation under the HRA if there is no equality issue in the case. We do not believe that litigation should be barred in the absence of an equality issue. The consequence would be to restrict litigation to those situations where the victim is part of a recognised equality strand group which suffers unlawful discrimination on the basis of membership of that group. This would mean that some persons within a wider group (such as black male prisoners) would be protected while others (such as white male prisoners) would not. Similarly, some issues—such as domestic violence, children's rights and the rights of patients—will not come into the litigation remit of the Commission. Whether or not there is an express litigation capacity we would particularly welcome a power for the Commission to intervene strategically. Its unique role would allow the Commission to determine which cases raise issues of importance meriting intervention. Organisations such as Liberty face resource and other constraints on intervention ability and we think it extremely important that the Commission has the power to act. However, it is crucial that debate around litigation powers does not detract from the wholehearted support which the Commission should receive.

  6.  Liberty is far more concerned about inroads into legal aid eligibility and entitlements. In recent months the Government has proposed capping legal aid asylum work; cited legal aid expense as a justification for curtailing access to higher courts or Judicial Review in asylum cases; and expressed intent to restrict access to criminal legal aid. We are concerned that these may represent the vanguard of a series of measures aimed at restricting legal aid eligibility generally. We would not want the existence of a litigation function in the Commission to be used as justification for further inroads into the ability of private practitioners and non-governmental organisations to take cases. The Commission cannot be a conventional regulator, as the range of potential human rights actions is too broad and varied to allow any strategy to successfully replicate the work of existing litigators.

  7.  The state mechanisms charged with protecting human rights interests through law are parliament and the courts. Education and culture-building are more suited to a specialist body in receipt of central funding to further its aims. The Commission will be uniquely placed to fulfil this function and promote a culture of respect for human rights. For example, the Commission would have the capacity to balance out the demonization of asylum seekers by use of publicity campaigns.

  8.  The Commission could also scrutinise government policy for human rights implications. At present this role is taken partly by the Joint Committee on Human Rights (JCHR) and partly by the Department for Constitutional Affairs (DCA). The JCHR produces excellent detailed analysis of government legislative policy but has a limited remit. It is largely restricted to consideration of bills before parliament, rather than wider government policy. JCHR reports also presume a level of knowledge of the HRA and other legislation that put them beyond the reach of the general public. The DCA is the department responsible for the government's human rights policy but again it generally restricts its scrutiny to departmental implementation of the HRA at a level that puts its work beyond the awareness of most people. Though human rights issues can be dynamic, controversial and complex, it is both possible and desirable to scrutinise and report them in an accessable manner. As the Commission's remit is broader it will be able to deal with areas—such as employment—which raise human rights issues but are essentially private sector and so have not attracted the scrutiny of JCHR or DCA.

  9.  Extending the parliamentary scrutiny role, we believe the Commission's unique status should allow what will effectively be regulatory work. At the least, the Commission should have the power to carry out general enquiries and make recommendations into good practice techniques across a particular sector. Ideally it would also allow investigations into specific allegations of human rights abuses. This would not be restricted to those situations where a breach can be established, as that would enable litigation. Rather, it should be broad enough to cover the principles of dignity, respect and fairness that capture the spirit of the act. Instances such as the treatment of elderly residents in care homes, as described above, would be an example of appropriate investigation.

  10.  Modern notions of equality and fundamental rights are derived from the same political and philisophical traditions of respect for individual dignity, self-determination and freedom. In the United Kingdom the two traditions have developed at different rates, with much of our equality legislation being nearly thirty years old whilst our rights and freedoms have been protected by domestic law for only three years. This temporal seperation has created an artificial distinction. Liberty believes human rights and equalities are distinct but complementary traditions that can benfit from operating within a single Commission.

March 2004









151   Should a Single Equinity Commission be able to protect Human Rights, Sarah Spencer, IPPR, 15 November 2002. Back

152   [2003] 2 WLR 478. Back

153   Article 14 prohibits discrimination. Back

154   Article 3 prohibits torture and cruel, inhuman and degrading treatment. Back


 
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