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The Scottish Human Rights Commission: Analysis of Consultation Responses
CHAPTER TWO THE REMIT OF THE COMMISSION
THE DEVOLVED REMIT
2.1 The consultation document states that, as a devolved body, the Commission will not deal with issues which are reserved to the UK Parliament and UK Ministers, and that decisions about the establishment and function of the Commission can, therefore, be made by the Scottish Parliament and Scottish Ministers. The nature of the devolved remit of the Commission will be defined in legislation, and one way in which this could be done would be by drawing the definition of its remit from the Scotland Act. This would distinguish between devolved and reserved matters, and would reflect the fact that the responsibility for observing and implementing international human rights obligations on devolved matters lies with Scottish Ministers.
2.2 As a devolved body the Commission would not have a formal relationship with Westminster or with UK Ministers. However, the Executive envisages that it should be possible for the Commission to establish an informal relationship with UK Departments. Furthermore, Committees of the Westminster Parliament have the power to call any individual or body in the UK to give evidence, which would include the Commission.
A1. Is it appropriate for the Commission to have the flexibility to establish an informal relationship with UK Departments?
2.3 Forty-three respondents answered this question: the majority supported the proposal. There was broad agreement across all sectors for the Commission to have the ability to establish informal relationships with UK Departments. Indeed, as one police representative phrased it, this was not only appropriate, "but probably essential to the success of the Commission."
2.4 Those who disagreed (3) did so on the grounds that "informal" relationships would be insufficient and argued that relationships with UK Departments and Ministers should be formalised in legislation:
"the Scottish Human Rights Commission should have a formal relationship with the UK Government and all allied departments, including the Lord Chancellor's Office[now the Department for Constitutional Affairs] and the Foreign and Commonwealth Office. It must be able to present the Scottish perspective on reserved matters where these directly impact on human rights in Scotland." (non-profit sector)
2.5 Many consultees used this and question A2 as an opportunity to present their opinions on the merits of the Commission having a remit restricted to devolved matters. Their comments, as they go beyond the boundaries of these questions, are discussed in Chapter 5.
INTERNATIONAL HUMAN RIGHTS INSTRUMENTS
2.6 In order to acknowledge the binding nature in Scotland of international human rights agreements to which the UK is a signatory, the Scottish Executive has proposed that the remit of the Commission, in relation to all of its key functions, should extend to international human rights instruments.
A2. Should the Commission's remit in relation to each of its key functions extend to the full range of international human rights instruments? This means that promotional, guidance, monitoring and investigatory activities could be carried out in relation to the range of instruments to which the UK is party.
2.7 Forty-two responses were received to this question, the majority (39) of which were in agreement, while the remainder provided a negative or "don't know" response. Again, some respondents also aired their views about the devolved remit of the Commission.
2.8 The dominant observation made was that the Scotland Act makes it clear that the Scottish Parliament and Executive must adhere to all human rights obligations, including those at international level: compliance with ECHR is of primary concern, but the other treaties to which the UK and Scottish governments are signatories should not be overlooked.
2.9 The only responses offering a different opinion were from local government representatives. Both COSLA and an individual local authority considered that the Commission should focus its duties principally on the Human Rights Act and ECHR. Although they would be happy to see the Commission include other international obligations in its promotional and educational capacity, they were concerned that giving it a remit to investigate and report on all international human rights obligations would place undue strain on public bodies:
"The Human Rights Act clearly provides the European Convention on Human Rights with legally binding status in Scotland. Due to the dualist legal system however, other international human rights instruments do not carry the same legal status. It would therefore be inappropriate to monitor and investigate the activities of Scottish public authorities in the context of those other international instruments." (local government)
CHILDREN
2.10 During the Consultation period, the Commissioner for Children and Young People (Scotland) Act 2003 was progressing through the Scottish Parliament, receiving Royal Assent in May 2003, and the first Children's Commissioner will be in post by May 2004. Implications of the establishment of a Children's Commissioner have been considered, and the Executive is of the firm opinion that it would be inappropriate to exclude children from the broad remit of the Scottish Human Rights Commission, especially as the role of the Children's Commissioner would be focussed on the UN Convention on the Rights of the Child.
2.11 It has been suggested that the boundaries of the two bodies could be delineated in legislation. The consultation document also underlined the importance of co-operation between the two and noted that a memorandum of understanding, covering areas where they would both have an interest, would be drawn up. The possible advantages of sharing a location and resources should also be considered by the bodies.
A3a. Should children be retained within the remit of the Commission, provided workable practical arrangements could be established with the proposed Commissioner for Children and Young People?
2.12 Forty-three out of 45 responses, across all sectors, agreed with this proposal. The non-profit sector in particular, welcomed the specific inclusion of children in the remit of the Commission.
2.13 The most common theme was concern that the two Commissions should work together and avoid duplication of effort. A number of consultees emphasised that the inclusion of children in the remit would be vital as the powers and duties of the Commissioner for Children and Young People, being founded upon the principles of the UN Convention on the Rights of the Child, were more limited than those proposed for the Commission (for example, the former would not be involved in legislative scrutiny to the same extent).
2.14 One NGO referred to the need to create a memorandum of understanding and working protocols between the two bodies, and agreed with the suggestion in the consultation document that co-location could be helpful. It was suggested that the Children's Commissioner could be a member of the Human Rights Commission.
2.15 Another respondent was uncertain which approach should be taken. One non-profit body was the only consultee to oppose the proposal, on the grounds that they believed that the family is the best institution to support children and young people, exemplifying a particular view of the relations between the public and private spheres:
"The fact is that children and young people are not a homogenous group who share common interests and concerns…. We would therefore suggest that it is far better that parents should be left to represent the best interests of their own children, rather than create an unnecessary layer of bureaucracy."
A3b. Should this be reflected in legislation?
2.16 There were 36 responses to this question, 27 agreed with the proposal to base the relationship between the two Commissions in legislation. However, 5 of those respondents explicitly disagreed, and 3 did not express an opinion either way or were uncertain, indicating some ambivalence about the need for legislation in preference to a memorandum of understanding, which could offer more flexibility than a strict, formal delineation of relations from the outset. This represented a lower rate of consensus than was the case for most of the consultation proposals.
2.17 The need for a memorandum of understanding was supported, but a number of consultees argued against any further legislation on the relationship between the Commissions. The opinion of one children's organisation was that:
"it is difficult to pre-empt, before either Commission is set up, what the boundaries should be. We would instead urge a process of negotiation and review once the two bodies are up and running."
2.18 A large professional body argued against a statutory relationship with other equality bodies because the nature and functions of such organisations differ:
"Equality commissions take interest in relations between private parties such as employer and employee or landlord and tenant…. The ethos of human rights is very different. The Convention tends to apply to the different components of the state in order to protect and promote the rights and freedoms of the individual within systems and institutions that frequently overlook or neglect the needs and demands of individuals. Consequently, the convention tends to balance the competing interests of the individual and the state…. The Human Rights Commission should therefore sit apart from specialist agencies, free from statutory duties to collaborate but influenced by the common sense need to co-operate in the promotion of justice and equality."
2.19 The Law Society of Scotland had also noted in relation to A3a that the Commission's relationship with different commissions should be considered, and the role of the Scottish Law Commission taken into account, before any decision could be made about whether to enshrine relations in legislation. Two consultees emphasised the practical dimension of making relationships between the Commissions work properly.
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