From the outset it was recognised that the Human Rights Act would lead to litigation, but its larger social purpose was to introduce a national human rights culture of tolerance and mutual respect.
The Home Office and the Lord Chancellor's Department (LCD) saw to its conception, birth and early infancy; and now that the act has been fêted with its first birthday and the initial achievements of their child have been assessed, it is time to think harder about what should happen next. The act may not be quite the prodigy that some expected, but its achievements so far have been real enough in starting the process of change in legal and social culture. Will they last, and what should happen next?
It has been recognised from the start that the Government could not maintain parental control over its baby forever. Since the act regulates in different ways the activities of all branches of the state – whether legislative, executive or judicial – the act has seemed to many to require a separate independent body to be responsible for bringing this child through its early years and adolescence to full maturity. The question has always been by whom or what it should be adopted. The obvious answer seemed to be a human rights commission, but the UK does not have one. So the time has come for some serious thought about the need and role for such a commission in the near future.
There are two obvious precedents for such a commission. First, in Great Britain, all the current equality acts have their own commissions. The Equal Opportunities Commission (EOC), the Commission for Racial Equality (CRE) and the Disability Rights Commission (DRC) all have roles both in relation to the strategic implementation of their respective legislation and in the supervision of the legislation itself. These commissions have each played an absolutely fundamental role in the development of equality law.
The EOC has led on equal pay and the rights of part-time workers and has campaigned for family-friendly work policies. While there remains a huge amount to do, it has achieved much. The CRE has been equally important in its areas of supporting litigation and conducting formal investigations into the Criminal Prosecution Service (CPS), the Immigration Service and many other bodies. The DRC is still young but is carrying out similar functions. Each of these organisations, apart from campaigning and assisting litigants, has kept its legislation under review, suggesting changes and anticipating problems.
“There is a need for a body to give authoritative independent advice on human rights matters to public authorities and the public at large”
The Law Society and the Bar Council
In Northern Ireland, there is now a single equality commission with comprehensive equality responsibilities. More importantly, there is also the Northern Ireland Human Rights Commission, which was promised as part of the Good Friday Agreement and which has played a central role in developing the new rights-based dialogue in Northern Ireland. It has drafted a suggested Bill of Rights and commented on and attempted to intervene in important human rights cases.
When the Human Rights Act was passed, the Government recognised that there might be a need for a body to oversee its development. Initially, the Home Office Human Rights Task Force carried out this role. This body brought together a very diverse range of interests, from pressure groups Justice and Liberty, to the Association of Chief Police Officers and local government. National black organisations such as the 1990 Trust, and think tanks such as the Institute of Public Policy Research were all represented, as were the Bar Council and the Law Society. The taskforce was supported by the Home Office Human Rights Unit (which has now moved to the LCD). The role of the taskforce was limited to overseeing the implementation of the act, and although many members of the taskforce were convinced of the need for a proper independent commission to take over its tasks, it never had time to formally assess such a possibility. The work of the taskforce was set out on the Home Office Human Rights Unit website and has been much in demand. But the functions of the taskforce were always seen as limited, and it came to an end at the beginning of this year.
To some extent its work was taken up by the Parliamentary Joint Committee on Human Rights, made up of members from both houses, which the Government set up at the beginning of the year. The major task of this committee has been to scrutinise proposed legislation for its human rights impact. This task fulfils a vital dual role – it ensures expert scrutiny of each statement made by ministers, under Section 19 of the act, ensuring that any new legislation they are sponsoring is human rights compliant and provides a wider human rights oversight of legislation. The new Terrorism Bill, for example, can expect to be the subject of very careful scrutiny by the committee, especially since it is so clearly connected with derogation from the right to liberty under Article 5 of the European Convention on Human Rights. The potential area of work for the committee is therefore huge, but it is not a prototype human rights commission. It would be neither practicable nor sensible to ask it to take over responsibility for intervening in human rights abuses, assisting those who wish to litigate, giving guidance to public authorities or even having much involvement in the development of the common law.
One important task it does have is to decide whether to recommend to the Government that there should be a human rights commission. This summer it completed its call for evidence. Over 50 submissions were made, including a joint submission by the Bar Council and the Law Society. It is believed that many of the submissions were in favour. However, it is understood that the committee will not complete this task and make recommendations until next summer. But if there is any more legislation curtailing human rights as a result of terrorist threats, even this timetable may seem unrealistic.
But the issue cannot be delayed forever. The United Nations Human Rights Committee has very recently made it plain that action on this front is needed. In its most recent report on the UK, dated 29 October, it said that the UK “should consider the establishment of a national human rights commission to provide and secure effective remedies for alleged violations of all human rights”.
The UN reasoned: “The establishment of a national human rights commission with comprehensive jurisdiction to receive complaints of human rights violations would be a valuable addition to the remedies available to persons complaining of such violations. This is particularly so for persons for whom recourse to the courts is, as a practical matter, too costly, difficult, or impossible.”
In Scotland, the consideration of the development of a local human rights commission is also underway, and there is no reason why a powerful body such as the Greater London Authority should not also set up its own such committee to assist litigants and to take up human rights issues. This would be better than nothing, but a national commission would provide a national overview.
As the joint submission from the Bar Council and the Law Society pointed out: “There is a continuing need for a body able to give authoritative independent (non-Governmental) advice on human rights matters, both to public authorities and the public at large. There is also a need for independent monitoring of the work of public authorities and of the activities of the courts.”
The submission added that a human rights commission would “assist public authorities to develop best practice in a manner which is consistent across the country (and between the different nations of the UK). Respect for human rights is best fostered in this way, rather than by the piecemeal, costly and unreliable route of the development of human rights through litigation. Indeed, the promotion of good human rights practice and an understanding of human rights principles is one of the best ways of avoiding costly and misconceived litigation.” Where litigation was necessary or threatened, the submission added that a human rights commission would be much better placed than “the Legal Services Commission (even with the assistance of its Public Interest Advisory Panel) to identify appropriate cases for support”.
So is the act to become a lonely orphan, left to lawyers and judges during its formative years? Or is it to be adopted properly and brought up? It seems that only a national human rights commission could ensure the national development of best practice, authoritative guidance and a real human rights culture. Many Commonwealth states have such a commission, as does Northern Ireland. So why not the UK? n
Robin Allen QC of Cloisters Chambers represented the bar on the Home Office Human Rights Task Force