29. Memorandum from Sarah Spencer,
Visiting Professor, Human Rights Centre, University of Essex and
Director of Policy Research, Centre on Migration Policy and Society,
University of Oxford
1. In 1998 I co-authored a report for the
Institute for Public Policy Research, A Human Rights Commission,
the options for Britain and Ireland, which advocated a statutory
body which would bring equality and broader human rights issues
under the same institutional umbrella. From subsequent experience
working on equality issues, including as a Commissioner at the
Commission for Racial Equality, I subsequently submitted evidence
to the JCHR advocating a closer relationship between the equality
and human rights functions (HL Paper 67-1/HC 489-1; Ev 284).
2. I therefore very much welcomed the statement
to Parliament on 30 October 2003 that the remit of the proposed
Commission on Equality and Human Rights "should cover the
promotion of human rights together with its equality responsibilities";
that it would "promote a culture of respect for human rights,
especially in the delivery of public services", "mainstreaming
equality and human rights in the public sector and public service
delivery" and drawing on the rights and responsibilities
in the Human Rights Act to promote social cohesion. I welcomed
the clear recognition in the statement from Lord Falconer in the
associated press statement (DTI Ref P/2003/357) that "Human
rights and equality are two sides of a single coin—respect
for the dignity and the value of each person".
3. I am a member of the Task Force on the
CEHR which has been meeting regularly since December 2003 to advise
the Government on the CEHR's role, functions, priorities and activities.
4. On 26 February the Task Force met to
discuss a paper (CEHR/TF/08/0002) on the commission's potential
role, powers and duties in relation to human rights. If reflected
in the White Paper on the CEHR to be published later in the Spring
and in the subsequent legislation, the role, powers and duties
proposed for the promotion and protection of human rights would
constitute a substantial advance on the arrangements which currently
exist. (It is not yet clear that this will also be the case in
relation to equality).
5. In particular, I welcome the proposal
in the DTI paper that:
— Human rights be central to the vision
of society to which this body would contribute, and central to
its mandate.
— The Human Rights Act (HRA) would
provide the legal framework where the CEHR was using statutory
powers in relation to human rights functions but that it should
take account of the UK's obligations under the full range of international
agreements on human rights to which the UK is party, in its awareness
raising and public education activities (which I take to include
its general enquiry function).
— The CEHR guidance to public authorities
on compliance with the HRA and on mainstreaming good practice
would be integrated with guidance on equality issues where appropriate
but with provision for separate guidance in areas of human rights
with no link to equality.
— A key objective would be to move
beyond compliance with the law to use human rights good practice
as a key driver for better service provision, recognising that
this would require systemic change—the body having a statutory
duty to encourage good practice and awareness on human rights.
— This promotion work would extend
to private sector contractors via public authorities.
— The CEHR would work with the public
sector inspection bodies such as the Audit Commission and OFSTED
(as the Commission for Racial Equality does now), to devise criteria
for mainstreaming human rights within the performance assessment
frameworks.
— A further objective would be public
education, raising awareness and understanding—again with
a statutory duty to do so—a function which would include
awareness raising campaigns and citizenship education.
— The CEHR would have a general advice
facility on human rights—to organisations and individuals—such
as a helpdesk.
— Human rights as "core ethical
values for society" would be a key concept in the CEHR's
public education and awareness raising activities and in carrying
out its responsibility to promote good relations in society.
— The CEHR would have a duty to keep
the working of the HRA under review and advise Ministers.
— It would have a power to carry out
and disseminate research on human rights, "to equip the CEHR
as a centre of expertise".
6. In addition it is particularly welcome
that the DTI paper proposes that:
— The CEHR should have a power to carry
out formal enquiries into human rights issues and make recommendations.
The paper suggests that such enquiries would arise from its work
with public services or with a strong link to equality. It makes
clear that they would cover private sector contractors providing
public services. But it is important that, as with its promotion
work, the CEHR's enquiry function should equally cover those private
sector organisations fulfilling public functions that are not
under contract to a public authority. The residents of an institution
run by a private or voluntary body in such circumstances, for
instance, would be as in need of the protection of human rights
standards.
— In conducting such enquiries, the
CEHR would have the same power to call for evidence as for comparable
enquiries on equality issues.
— The CEHR would be able to make third
party interventions and DTI is considering formalising that power
in statute to put beyond doubt its right to ask the court to intervene.
It is imperative that it should indeed do so to avoid any repetition
of the experience of the Northern Ireland HRC which did not have
this right in its enabling statute. The Northern Ireland Office
had mistakenly considered it unnecessary to make that right explicit
in the legislation.
7. If these proposed arrangements are enacted,
including the engagement of the mainstream audit and inspection
bodies, and the CEHR is given sufficient resources to fulfil its
functions well, it would be in a position to make a significant
difference to the protection of the public. It may be, therefore,
that this is not the moment to argue for the CEHR to have a broader
remit than that proposed, but for the Commission itself to make
that case when, after a number of years of operation, it reviews
the effectiveness of its statute and advises the government of
the day if limitations on its powers have hindered its effectiveness.
8. However, there are a number of areas
where the DTI is uncertain how to proceed or is proposing to exclude
powers from the CEHR remit, which it would be helpful if the Joint
Committee were to consider.
9. First, the DTI proposes that, when conducting
a general enquiry, the CEHR would have the same powers of access
to evidence that the equality commissions do now: that is, the
power to require access to information and individuals would be
subject to the agreement of the Secretary of State. The existing
commissions have not, I believe, had occasion to seek such agreement,
so it cannot be said that this limitation on their powers has
proved problematic. But it could give rise to a conflict of interest
if the proposed enquiry were in to the policies or practices of
the government department run by that Secretary of State, or indeed
if the request were for evidence from the department run by a
Cabinet colleague. Moreover, it is arguable that this limitation
on the Commission's right of access to evidence would be in breach
of the Paris Principles for national human rights institutions
which state that the institution "shall hear any person and
obtain any documents necessary for assessing situations falling
within its competence" (UN General Assembly Resolution 48/134,
20 December 1993).
10. As the power to secure access to evidence
is coercive, there need to be safeguards to prevent the abuse
of that power. I suggest, however, that sufficient additional
safeguards are already in place in the equality legislation, namely—to
take the Race Relations Act 1997 as my example:
— if the individual refuses to comply
with such a notice the Commission has to apply to a county court
for an order requiring him to comply (s 50 RRA 1976); and
— the Commission cannot disclose the
information provided without the individual's consent, except
in its report and other limited circumstances (s 52).
11. Second, the DTI suggests that it would
not be appropriate for the CEHR to have the power to conduct investigations
into abuse of human rights by named individuals, as it will be
able to do on equality issues. A "belief" investigation
under discrimination law can lead to an enforceable non-discrimination
notice and there is no equivalent of this under the HRA. However,
it would be anomalous if the CEHR could include human rights within
the remit of an investigation into a sector but not in relation
to a particular organisation: into the prison sector for instance
but not into a particular prison. That could lead the Commission
to conduct a general investigation, leading only to recommendations,
so that it could address the human rights issues, even though
it had sufficient evidence of discrimination to conduct a "belief"
investigation potentially leading to a non-discrimination notice.
Moreover, a general investigation can give rise to the evidence
of discrimination that leads to a "belief" investigation,
but at that point the commission would be required to ignore any
human rights issues that arose in the course of its investigation.
12. If the Commission were to be allowed
to include human rights within the remit of an investigation on
a particular organisation, there are two potential outcomes which
could be considered. The Commission could make recommendations
for reform, on the human rights issues, alongside any action it
took on the equality dimension including a non discrimination
notice. That is, the outcome on human rights could be the same
as that for general investigations: recommendations.
13. If the Commission were to conclude that
a policy or administrative practice in the organisation was in
breach of the HRA it could also be permitted to seek Judicial
Review of that practice with a view to securing a declaration
from the court, rather than damages. That is, in circumstances
where the facts are not disputed, but a rule or customary practice
in the organisation may be in breach of the Act, the court could
be asked to give its view: thus the Commission would be seeking
a declaratory, not coercive, remedy.
14. Similarly, I suggest it may be appropriate
for the CEHR, as a statutory body acting in the public interest,
to be able to seek the view of the court when its concern about
a rule or practice arises not from an investigation but has come
to its attention in another way.
15. Again, there would be safeguards which
would ensure that the Commission did not take this course lightly.
The court itself acts as a filter as it has to give leave for
a Judicial Review to proceed. It would not allow a hearing unless
there were an arguable case and one that had been brought promptly.
Any remedies would also be at the discretion of the court. Second,
resource constraints, and the danger of having costs awarded against
it, would ensure that the Commission would only pursue such a
case if it fell within its strategic priorities and it was advised
that it had a strong chance of succeeding. Judicial Review is
a course of action which the current equality commissions use
rarely, and this would no doubt also be the case if the CEHR were
allowed to use it in relation to human rights, but it could be
a powerful lever in limited circumstances when it is necessary.
16. Third, the DTI suggests that the legislation
be explicit in allowing the CEHR to support "combined"
HRA and discrimination cases, just as the equality commissions
can, for instance, support an unfair dismissal claim arising from
the same facts as the discrimination claim. But it is unsure whether,
in such cases, the Commission should be allowed to pursue the
HRA dimension of the case should the discrimination element of
the case prove unsustainable. It does not want to open the door
to free standing human rights cases, and I would accept that a
threshold for the discrimination element of the case would be
needed so that it could not be used as a stalking-horse for a
case that did not genuinely have an equality dimension. But it
would seem essential to allow the Commission to continue in its
support for a case if, subsequently, it proved feasible only to
pursue the HRA dimension. To abandon the case would suggest to
the public that the Commission was unconcerned about a potential
breach of the HRA, a message inconsistent with its other work;
and be incomprehensible to the client if he or she was being advised
by the Commission that the case had a good chance of success but
that they must nevertheless find legal representation elsewhere.
17. It is also necessary to consider the
arrangements for ensuring the independence and accountability
of the new body. I would like to raise three issues in this respect.
First, that the commission should not be solely accountable to
one Whitehall department but subject to an inter-departmental
arrangement. This would ensure its access to influence in (and
through) a range of key departments but also that it was not subject
to undue control by a single department. It might be appropriate
for the Chair of the Commission to be appointed by the Prime Minister
rather than by any single Secretary of State.
18. Second, the Commission should have a
strong relationship with Parliament, reporting annually to a Select
Committee on its own work, and regularly to that Committee's enquiries
on particular issues. In relation to its human rights work, this
would clearly be to the JCHR, yet this work will not always be
identifiable separately from its work on equality issues. This
must raise the question whether the JCHR should itself have a
more explicit equality mandate, and could indeed develop a stronger
relationship with the existing equality commissions prior to the
CEHR being established.
19. Finally, the Commission's capacity to
act will depend on its having sufficient resources. There is a
real concern that the Commission will be given little more than
the combined budgets of the existing equality commissions, despite
having a substantially broader responsibility for age, sexual
orientation, religion/belief and human rights. A strong indication
to government from the JCHR that greater resources are needed
would be welcome. The Commission should also be able to charge
for some of its services, and to secure charitable funding, as
additional sources of income.
March 2004
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