28. Further memorandum for the Scottish
Human Rights Centre
The Scottish Human Rights Centre (SHRC) is a
non-governmental organisation, which exists to promote human rights
in Scotland through the provision of advice and information, research,
scrutiny of parliament and monitoring of international human rights
obligations.
SHRC would like to emphasise that a Scottish
Human Rights Commission will be established in Scotland in the
near future therefore the relationship between it and any CEHR
will be of vital importance particularly with regard to the potential
for public confusion due to the overlap in their powers. It will
be essential that these bodies be established so that they can
work together to better promote a human rights culture in Scotland
not to be in competition with each other. Whilst memorandum of
understanding can be agreed, the nature of the relationship will
require a degree of statutory definition to ensure clarity as
to the remit of each. SHRC would highlight that it is within the
power of the Scottish Parliament to give the Scottish Human Rights
Commission full powers and duties as outlined in the Paris Principles
and for the Scottish Human Rights Commission to deal with the
full range of international human rights treaties.
SHRC would also highlight the need for close
co-operation between the CEHR, the Scottish Human Rights Commission
and the Northern Ireland Human Rights Commission and the Northern
Ireland Equality Authority.
NATURE AND
EXTENT OF
THE CEHR'S
HUMAN RIGHTS
REMIT
The proposed human rights remit of the CEHR
appears to be only a limited promotional role, which will be insufficient
to even create the culture change to which the UK Government claims
to aspire let alone comply with the legally binding international
obligations of the UK. On a number of occasions the United Nations
Human Rights Committee and the Office of UN High Commissioner
for Human Rights have suggested that the UK Government should
establish a human rights commission which fully complies with
the Paris Principles yet the UK Government has repeatedly failed
to act.
The proposed human rights remit has in SHRC's
opinion an excessive focus on compliance by public authorities
which is such a narrow focus as to make the impact of its work
extremely limited, which is likely to result in most people think
of human rights in terms of how it applies to employment and work
rather than as rights which belong to them and everyone else by
virtue of their humanity and which should be protected and promoted
for the good of society as a whole.
The proposed human rights functions seem to
go much further than the proposed remit to include what have been
traditionally termed enforcement powers, e.g. investigation, ADR
etc. Whilst this is a welcome step the UK Government needs to
be clear about what is envisaged here and how these might fit
within the promotional role which it sees for the human rights
aspect of the CEHR.
RELATIONSHIP BETWEEN
HUMAN RIGHTS
AND EQUALITY
FUNCTIONS
SHRC is disappointed that the opportunity has
not been taken to utilise the international human rights standards
of equality thus using human rights as a base line for equality
rather than just implementing the minimum necessary to meet the
UK's obligations, e.g. when considering the promotion powers regarding
equality these powers should be extended to promoting at least
the international definition of equality and non-discrimination,
i.e. non-discrimination on any grounds, rather than the limited
UK view, but preferably promotion should be of all international
human rights standards to which the UK is a party. Promotion is
about establishing best practice. The international human rights
standards lay down a minimum level of treatment for everyone which
should for the basis of best practice but which does not prevent
a state from implementing better practice. A true human rights
culture which respects and promotes equality of opportunity for
all and welcomes diversity will never be created until the UK
Government gives up its piecemeal approach to this issue and fully
embraces international human rights standards.
HUMAN RIGHTS
RELATED POWERS
OF CEHR
The human rights powers of the CEHR, whilst
not meeting the Paris Principles standards, are stronger than
the proposed remit might suggest. Whilst SHRC welcomes this we
are concerned about how effective these will be in practice given
the proposed remit. We would also suggest that the best way to
establish a Commission dealing with human rights is to establish
it with the full range of powers and duties as outlined in the
Paris Principles.
It is not clear from the taskforce proposals
how the UK Government intends the CEHR to implement its promotional
role. Suffice to say that there is a great deal of overlap between
promotion of human rights and promotion of equality therefore
consideration should be given on how best to achieve this aim.
Mainstreaming equality and human rights in all aspects of education,
employment and work would seem sensible but how this can be effectively
achieved is open to discussion.
SHRC would suggest that the power to review
legislation should extend to all legislation, as it can all impact
on human rights, and should not be limited to the Human Rights
Act 1998.
The suggested power to carry out general i.e.
sectoral, enquiries is welcomed by SHRC, as such a power has been
used effectively by other human rights commissions, notably the
Australian Human Rights and Equal Opportunity Commission. SHRC
would however caution that such a function must be supported by
adequate, practical powers e.g. power to compel evidence, enter
premises, compel production of documents etc as if such powers
are lacking it can make the investigation difficult, if not meaningless.
A body such as the CEHR should not have to be reliant on using
the Freedom of Information Act, nor the support of the Information
Commissioner to be able to access information as this would seriously
undermine its work and credibility, nor should it be presumed
that it will gain co-operation in its investigations.
The above comments apply equally to named investigations
as to general investigations. It would also add that it is essential
that appropriate powers and sanctions support such investigations
to ensure compliance with any recommendations made following an
investigation.
SHRC welcomes the proposed power of third party
intervention and the proposal that the CEHR be able to take judicial
review action but would suggest that the power to take strategic
cases in its own name would be of additional and possibly greater
benefit. It should also have the power to support individual human
rights cases whether or not they related to equality or discrimination.
The lack of this power may create a problem if the proposed conciliation
function does not provide a resolution to the problem and the
individual then feels let down by the CEHR which cannot give them
further assistance.
ARRANGEMENTS TO
GUARANTEE ACCOUNTABILITY
AND INDEPENDENCE
SHRC believes that any Commission for Equality
and Human Rights should be established in compliance with the
Paris Principles which provide guarantees for the independence
and accountability of national human rights institutions. SHRC
is disappointed that the UK Government has chosen not to establish
the CEHR in this manner and made only one reference to these standards
in the deliberations of the taskforce on this issue.
15 April 2004
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