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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