The Government’s Independent Review of the Human Rights Act Contents

11Enforcing and embedding rights

The ‘section 6’ duty

259.Section 6 HRA obliges public authorities to act in conformity with Convention rights unless primary legislation requires them to do otherwise. This part of the Act places human rights front and centre of public authorities’ approach to providing services, helping to create a human rights culture. In such a culture, human rights breaches are less likely to occur. There is more respect for rights and less need for litigation. It is therefore disappointing that the Government’s own review has not sought to consider the impact or effectiveness of section 6. As the National Aids Trust told us:

“Crucially, the Review does not consider the success of Section 6 of the HRA which states that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. The HRA has an important part to play outside of the courtroom, including in developing good public policy, and it is shame that this was not considered by the Review.”209

260.Migrant Voice noted that the Home Office might benefit from further embedding human rights in some areas of its work and expressed regret that the Government’s review had not included terms of reference that sought to improve the effect of the Act in this regard:

“We are profoundly discouraged and concerned, therefore, at the Government’s decision to commission this review with terms of reference that include no positive inquiry as to how a culture of respect for human rights might be secured and sustained; nor any specific inquiry into the current will or capacity of public authorities, including the Home Office, to manifest and promote such a culture.”210

261.In its 2018 report on Enforcing Human Rights the Joint Committee on Human Rights commented on the operation of section 6, stating that the degree to which it was acting as a driver of a human rights culture was “patchy” as “it depends on awareness and training of public officials, which can vary according to the public authority”.211

262.Section 6 can be highly effective in protecting rights without recourse to the Courts:

263.However, the “patchiness” sadly continues. The EHRC told us “[ … ] recent experience demonstrates that some public authorities are not doing enough to fulfil their human rights obligations. For example, during the covid-19 pandemic, the HRA has offered a framework for local authorities to balance the right of care home residents to private and family life in the form of visits with the requirement to take steps to protect their right to life; however, we have seen repeated blanket bans on visits throughout the pandemic.”.216 Sanchita Hosali, of the British Institute of Human Rights told us, “There is a widescale issue around Section 6 not being fully understood across the gamut of public authorities and the public sector. That is an issue because it is the implementation that makes a difference to people’s lives every day”.217

264.Whether the lack of consistency in adherence to section 6 duties is due to oversight as Lord Neuberger believed,218 or other causes, it needs to be overcome. When the Act was first introduced, a great deal of training and awareness raising was carried out across the public sector. For example, Helen Mountfield QC told us that “The Judicial Studies Board trained every immigration adjudicator and every employment tribunal chair. It was an enormous mass exercise, and that was really helpful”.219 There is a strong case for better inclusion of human rights in the initial training, qualification and professional development of those working in public services. The Lord Chancellor’s 2018 vision for Public Legal Education (PLE) included a goal to embed public legal education “into public services and government departments”.220 We support this goal.

265.Concentrating on certain narrow constitutional and legal questions, as important as they may be, fails to acknowledge the difficulties that many ordinary people have in enforcing their rights. Section 6 of the Human Rights Act makes human rights real and accessible to service users without recourse to the courts by requiring public authorities to act compatibly with the Act. Where public authorities are complying with this duty, it means that human rights are respected and embedded in service delivery. The Government must look at ways to spread best practice in human rights compliance across the public sector including through training and information programmes.

Enforcing rights through the courts

266.There are times, however, when the state does not fulfil its obligations and litigation is needed to enforce rights. This option, however, is increasingly difficult to access due to the limited availability of legal aid. Liberty told us that “In 2009 more than 135,000 people received legal aid for welfare benefits issues; by 2017 this had fallen to fewer than 500”.221 The EHRC’s evidence pointed to the disproportionate impact of legal aid reforms on those with protected characteristics, stating that “For example, the removal of certain areas of law from the scope of legal aid has disproportionately affected disabled people, women, children and people from ethnic minorities”.222

267.The Ministry of Justice is conducting a review of the means test for legal aid with the aim of publishing a consultation paper later this Spring. In evidence to the Justice Select Committee, the Justice Minister Lord Wolfson noted that “a system which means that people cannot vindicate their legal rights is a legal aid system that is not working”.223 We agree. We hope the Government takes the opportunity of the review of means testing for legal aid support to consider how best to ensure that people are able to vindicate their human rights in court.

The Human Rights role of the Equality and Human Rights Commission

268.There are three National Human Rights Institutions (NHRIs) operating across the UK; the Equality and Human Rights Commission (Great Britain) (EHRC), the Scottish Human Rights Commission (SHRC) and the Northern Ireland Human Rights Commission (NIHRC). They are publicly funded bodies with a legislative mandate to protect and promote human rights and they have a central role to play in their enforcement. It is vital that the UK’s NHRIs have the powers necessary to do their jobs, in accordance with the different roles assigned to them.

269.This Committee has long argued that the powers of the EHRC should be harmonised across equality and human rights. Under its current powers, the EHRC cannot provide legal assistance to individuals in a human rights case unless there is also an equality element in the case. Similarly, the Commission has the power to undertake investigations into named bodies in relation to possible breaches of the Equality Act 2010, but this does not extend to human rights breaches. In 2018 the Committee wrote:

“It is difficult to understand why the EHRC should have weaker enforcement powers as concerns human rights violations than equality matters. The EHRC’s inability to bring cases on purely human rights grounds severely restricts its effectiveness”.224

270.We once again drew attention to this deficit in our report on Black People, Racism and Human Rights in 2020 which recommended that, “Government must harmonise the Commission’s human rights enforcement powers in line with its powers in relation to equality, so that it can undertake investigations where it is suspected that an organisation has breached the Human Rights Act and provide legal assistance to individuals in Human Rights Act cases”.225

271.In its response to that report, the Government rejected this recommendation stating that as the ECHR had been accredited at the United Nations with “A” status by the Global Alliance of National Human Rights Institutions, it fully met the requirements to protect human rights in Great Britain including carrying out inquiries, where appropriate. The response further argued that the 2018 Tailored Review did not recommend that human rights enforcement powers were necessary for the EHRC. The Government’s Tailored Review, which was one of a series of reviews of arms length bodies, noted that the EHRC had asked for these increased powers but did not find strong views in favour or against extended powers amongst its stakeholders.226 To us, this neglects consideration of the importance of these powers to enforcing rights.

272.It is greatly disappointing to us that the Government’s review into the Human Rights Act has not engaged with the role and powers of the EHRC and its role in enforcing rights. The role of the EHRC in enforcing rights must be strengthened by allowing them to undertake investigations into named bodies for possible breaches of the Human Rights Act and to provide legal assistance in Human Rights cases.

A step short of legal action?

273.Legal action is rightly the last resort. The time legal action can take, along with the cost of legal representation, can mean our rights feel at times unenforceable. When a relative is being denied meaningful visits to a loved one in a care home, or a parent is trying to challenge the use of restraint on a child or young person held in an Assessment and Treatment Unit, decisions on rights are crucial and it is crucial they are provided in a fast and accessible manner. Legal action can by its nature be oppositional whereas in many settings what will matter is the ongoing relationship between service providers and those that receive them.

274.Lord Wolfson, in his evidence to the Justice Committee, emphasised that we do not live in a world, and will increasingly not live in a world, where the only way to vindicate your legal rights is to go to Court.227 A step short of legal action which is faster, less costly, and less combative, is worth exploring. Judith Robertson explained:

“We need better processes in our public authorities, whether they are complaint mechanisms or means by which people can raise human rights issues quickly and achieve some kind of adjudication, and for that to happen in a context that does not necessarily require there to be large amounts of money or legal support. I think there is scope for a much more accessible process of route to remedy and access to justice within the Scottish, English and Welsh legal frameworks, and potentially in Northern Ireland, than we currently envision”.228

275.In November 2019 the Lord Chancellor Robert Buckland noted that Article 13 ECHR was not prescriptive about effective remedy. He explained:

“It leaves it to the member state, the signatory, to determine what that process might be. I am not going to sit here and say that a court process is not the right way to deal with this—far from it—but it is the job of all of us to consider whether there are other avenues and other means by which the citizen can obtain redress of grievance. We know that litigation can be long and expensive, for example. It is not always the best answer here for the wronged citizen.”229

276.The Government should consider whether there is the need for additional mechanisms to make the enforcement of rights more accessible. Any such mechanism should not impede access to justice through the courts when necessary, and must deliver on the enforcement of human rights.

209 National AIDS Trust (HRA0060)

210 Amnesty International UK, Migrant Voice (HRA0052)

211 Joint Committee on Human Rights, Tenth Report of Session 2017–19, Enforcing Rights, HL Paper 171 / HC 669, 19 July 2018, paras 155

212 Q43, Q48 [Sarah Dallal]

213 Q43 [CC Faulkes]

214 Q31 [Judith Robertson]

215 British Association of Social Workers (HRA0035)

216 Equality and Human Rights Commission (HRA0025)

217 Q44 [Sanchita Hosali]

218 Q3 [Lord Neuberger]

220 Attorney General’s Office and The Rt Hon Robert Buckland QC MP, “Our vision for legal education”, 31 October 2018

221 Liberty (HRA0027)

222 Equality and Human Rights Commission (HRA0025)

223 Oral evidence taken before the Justice Committee on 24 March 2021, HC [2021–22] 289, Q525 [Lord Wolfson]

224 Joint Committee on Human Rights, Tenth Report of Session 2017–19, Enforcing Human Rights, HL Paper 171 / HC 669, para 127

225 Joint Committee on Human Rights, Eleventh Report of Session 2019–2, Black People, Racism and Human Rights, HL Paper 165 / HC 559, para 101

227 Oral evidence taken before the Justice Committee on 24 March 2021, HC [2021–22] 289, Q525 [Lord Wolfson]

228 Q32 [Judith Robertson]

229 Oral evidence taken on 18 November 2020, HC (2019–21) 978, Q11 [Rt Hon Robert Buckland QC MP]

Published: 8 July 2021 Site information    Accessibility statement