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The Scottish Human Rights Commission: Analysis of Consultation Responses
EXECUTIVE SUMMARY
1. Fifty-eight submissions were received on the "The Scottish Human Rights Commission", the second consultation document on proposals for this body. Responses were received from a range of stakeholders including local government, the non-profit sector, the legal sector, the police, academics, religious groups, professional organisations and private individuals. Twenty-two of these consultees had also responded to the first consultation paper entitled "Protecting our Rights: A Human Rights Commission for Scotland."
2. Analysis of responses was not straightforward. Many respondents used only partly, or did not use at all, the pro-forma provided; some respondents raised issues outwith the parameters of the consultation; some did not indicate definitive support or dissent on specific proposals; and there were varying levels of responses across questions. Further, by their very nature, such consultation exercises do not generate numerically representative data, so the analysis presented is largely qualitative.
3. Overall there were high levels of support for the proposals set out in the consultation document. There were, however, areas where less of a consensus was evident. These included whether the body should have enforcement powers, whether full-time or part-time Commissioners would be preferable and whether the Commission's budget should be supplemented by the power to charge for some services. The reasons for dissent across all these questions were varied.
4. Chapter 2 of the report examines responses on the remit of the Commission. The majority of respondents thought that it was appropriate for the Commission to have the flexibility to establish an informal relationship with UK government departments. Most agreed that its functions should extend to the full range of international human rights instruments and include promotional, guidance, monitoring and investigatory activities.
5. Chapter 3 examines responses on the functions of the proposed Commission. Almost all respondents thought that the Commission should be able to commission, or offer financial support for, promotional, educational and awareness-raising activities. Most agreed that the statutory remit should specify that guidance offered to public authorities should cover all human rights instruments, with a particular focus on the Human Rights Act.
6. Most respondents agreed that the Commission should not act on the direction of the Scottish Parliament, stressing the importance of its autonomy and independence. Almost all agreed that MSPs should be able to call upon the Commission as an expert body for advice, although some respondents stressed that this should not be allowed to affect the Commission's capacity to respond to the needs of others. All respondents agreed that the Commission should be independent of the Scottish Executive. Most agreed that it should be able to make meaningful contributions to policy development, but without any special status that might allow its independence and impartiality to be questioned.
7. Most respondents agreed that the Commission should have access to information powers comparable to those given to the Scottish Public Service Ombudsman. However, only half agreed that the Commission should not have enforcement powers, and there appears to have been some uncertainty about the definition of 'enforcement'. Some respondents argued that the Commission would need enforcement powers in order to be credible, while others considered enforcement to be a matter for the Parliament, Executive and the courts. Examples of the role and structures of existing organisations were used in these responses.
8. Consultees were also asked if the Commission should be able to assist the courts in Scotland, and whether it could be invited to intervene by a court at appeal or in a judicial review. The majority were in favour on both counts. However, many of those agreeing with the latter question clearly did not accept that these should be the only circumstances when the Commission should be called upon. The importance of its relationship with the courts (particularly criminal courts) and the power of the Commission to intervene, as it would see fit, was a recurring theme across responses.
9. Chapter 4 examines responses on the structure of the Commission. Most respondents agreed that the body should be accountable to Parliament, but reiterated the need for it to be independent from the Executive. A number of suggestions were made for how it could best be made accountable to the public, including the production of accessible reports, business plans, minutes, a website and public meetings.
10. Almost all respondents agreed that representation of Scottish society should be a factor in making Commissioner and staff appointments. It was acknowledged, however, that this could be difficult if only three or four full-time Commissioners were to be appointed. There were diverse views about how to balance full-time and part-time Commissioners. Those who favoured full-time Commissioners usually did so on grounds of logistics and consistent decision-making. Others suggested a range of models including more part-time Commissioners and ad hoc Commissioners recruited for limited time periods. All respondents agreed that it should have the power to determine and appoint its own staff.
11. A number of suggestions were made to help ensure the Commission's accessibility to the public including satellite offices, outreach activities and working with other local providers. The majority of respondents also thought that the Commission should be responsible for deciding on its own location. The need for physically accessible premises and good public transport links was highlighted.
12. The Executive has estimated that an annual budget of around 1 million should be provided to the Commission, with separate provision to be made for start-up costs. The consultation paper asked whether this budget should be supplemented by the power to charge for some services. Less than half (16 out of 38 identifiable responses) thought that the Commission should be able to charge for services. Suggested services that might be charged for included training, auditing, consultancy and publication. Eleven respondents thought that charging would be inappropriate, voicing concerns about the Commission being distracted from public duties and the negative effect of charging on public confidence.
13. Finally, a number of respondents used the consultation as an opportunity to raise other uncertainties and opinions. These included a recurrent concern that the Commission's remit will be to deal with devolved issues only unless called upon by the UK Parliament or Ministers. Some consultees thought that this would adversely affect the status, power and credibility of the body. The adequacy of current procedures for parliamentary scrutiny of legislation and the question of whether the Commission should be able to take test cases in its own name were also discussed in a number of submissions.
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