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The Scottish Human Rights Commission: Analysis of Consultation Responses
CHAPTER THREE THE FUNCTIONS OF THE COMMISSION
PROMOTION, EDUCATION AND AWARENESS-RAISING
3.1 Increasing general awareness so that everyone in Scotland understands their rights, responsibilities, and the meaning of human rights will be central to the critical role the Commission will play in supporting the maturation of a human rights culture. The Scottish Executive proposes that the Commission should decide on its own priorities and work-plan, but that the Commission will have to ensure that it appropriately targets all sectors of society in its promotional, educational and awareness-raising activities. It also proposes that the Commission be able to contract externally for services and resources in these areas where it is not possible to provide these in-house, or where to do so would be less effective.
B1. Should the Commission be able to commission or offer financial support for promotion, education and awareness-raising activities?
3.2 Forty-five responses were received to this question, 43 of these expressing support for this function. The volume of comments supplied in relation to this question illustrates the centrality of awareness-raising as a role for the Commission in fostering a human rights culture.
3.3 A few bodies pointed out that the Commission would probably need to contract externally to best use resources, access additional expertise and combine efforts with other organisations, but warned that it should not become more of a commissioning body than anything else. NGOs, in particular, stated that the Commission's efforts in this area should tie-in with work, and exploit existing knowledge and expertise, in their sector. The Disability Rights Commission cautioned that there could be unforeseen effects on NGOs as a consequence of the Commission's role in this area:
"there are already NGOs who do excellent work in this area, which should not be undermined by the setting up and funding of the Commission…. However, there is always the danger that funders withdraw funding [from other bodies] on the basis of the creation of the Commission."
3.4 The Equal Opportunities Commission offered its own experiences in support of the Commission being able to fund or commission external work:
"The EOC has a great deal of in-house expertise, but the extent to which the EOC itself can undertake the activities necessary to achieve our strategic priorities is often a question of resources, and in areas such as research it is very valuable to be able to commission external experts."
3.5 A human rights campaigning body and a children's organisation both highlighted that the Commission should develop close relationships with organisations such as Learning and Teaching Scotland and the Scottish Executive Education Department in order to support the mainstreaming of human rights in education.
3.6 A few respondents noted that training should not just be offered to public authorities but also to trade unions, private contractors as they increasingly provide public services, and the wider public, as appropriate. It was suggested that the Commission should be able to charge for the delivery of training to public and private bodies (see responses to question C3 on this topic). The issue of applying the Commission's activity to private bodies was a recurrent theme brought out in responses from varied consultees.
3.7 Many of the comments underlined the importance to the Commission of flexibility and the power to set its own priorities and to balance obligations in fulfilment of its function in this area. One NGO asserted that the Commission should not just be given the power to raise awareness but should be under a duty to do so.
3.8 The rights of old people in care homes was provided as an example by one charity of a topic that it might wish to publicise with the aid of financial support from the Commission. The importance of the related topics of monitoring and research was also underlined in some responses.
GUIDANCE TO PUBLIC AUTHORITIES
3.9 Providing guidance to public authorities on their obligations under the Human Rights Act 1998, which makes it unlawful for them to act in any manner that is incompatible with the ECHR, will be a central and specific function of the Commission. Research undertaken in 2001, by the Scottish Executive Legal Studies Research Team, revealed that many public bodies had only partial knowledge of the Act and did not understand their duties under this legislation. 6 There existed a perception that human rights entailed a general principle of "fair treatment" as opposed to the specific legislative provisions in the Human Rights Act. These findings pointed to the need for a central source of information and guidance.
3.10 The consultation document also notes that the body could offer guidance to public authorities on how to conduct an audit of their practice. Again, the Scottish Executive has stressed that the Commission should set its own priorities and determine its workload, in relation to this element of its remit. However, it does recommend that the Commission's statutory duties should include the provision of guidance on all aspects of human rights in general, with an express focus on the Human Rights Act given its relevance for public bodies.
B2. Do you agree that the statutory remit should specify that the guidance offered to public authorities should cover all international human rights instruments, but with a particular focus on the Human Rights Act?
3.11 Forty of the 45 who commented on this question supported the view that the Commission should not just focus on advice-provision on Human Rights Act compliance, but should encourage a positive human rights culture. The remainder disagreed or were unsure.
3.12 Submissions on this suggestion exemplified an area where it was sometimes difficult to ascertain whether a consultee agreed with the proposition or not. Many did not provide a clear affirmative or negative answer. Many responses dealt with the issue more generally in relation to Commission activity, rather than in the terms of the question, which was intended to focus on determining what should be specified in statute. In fact, only a few responses referred explicitly to this dimension of the question in any extended way.
3.13 A local authority, which had disagreed that there was a need for a human rights commission in the first consultation, did not think that it would feasible in the first years of the Commission for it to offer guidance on all international instruments, especially as many have no direct impact on Scots law. One religious body noted that it would:
"prefer if the Commission were to limit its guidance to the ECHR. This is because only the ECHR has been fully incorporated into Scottish law and has substantial practical implications for the functioning of Scottish public authorities. We would not wish the Commission to fail in its duty to provide quality guidance in relation to the implications of ECHR owing to an over-emphasis on other human rights instruments putting pressure on resources."
3.14 Poor understanding and knowledge of general human rights amongst public bodies would be seen as a reason for concentrating efforts at guidance on the Human Rights Act (at least in the early days of the Commission). COSLA suggested that coverage of other human rights instruments should be limited to an advisory capacity. One educational institution felt that clarification of "human rights instruments" was required before it could comment further.
3.15 Two respondents offered their views on whether the Commission should have any role in the auditing of public bodies. The Equal Opportunities Commission was of the view that, while it should encourage public authorities to audit their own practices, it should not undertake the task for them, as this would be time and resource-intensive and could jeopardise the Commission's impartiality if it came to investigate that same body. One human rights body was of the opposite opinion, going further than the consultation document:
"the Commission should be able to conduct audits of public authorities, but it should be highlighted that an audit will not adversely affect the right to take legal action against that body."
3.16 Several comments in relation to this question voiced concerns about the extent to which public authorities would comply with guidance provided by the Commission:
"it is not clear how local authorities would respond to such a power on the part of the Commission to offer advice unless it were accompanied by some form of responsibility to receive guidance. Public authorities do not have a general duty to 'promote' human rights or to carry out regular 'audit' of practice. As the Joint Committee in Human Rights put it in its discussion paper, evidence 'indicates strongly that public authorities will only act if directed to do so and told how to do so'."
3.17 One local authority was concerned about the status that advice given by the Commission, either as part of a review or in relation to a particular challenge, would have in court. Its view was that public bodies should be obliged to consider advice, but not be bound by it.
3.18 The Faculty of Advocates, interestingly and uniquely, argued that the Commission's guidance should not place as much emphasis on the Human Rights Act because it is based on the ECHR:
"While there is a case for SHRC guidance to public authorities to focus on the Human Rights Act 1998, given the duties of public authorities under the Act, it would arguably be short-sighted not to take the opportunity of developing a broader human rights culture within public authorities. In the Faculty's view the statutory remit should empower the SHRC to offer guidance covering all human rights instruments, many of which are more modern reflections of human rights thinking and may be said to represent current best practice."
ADVISING THE SCOTTISH PARLIAMENT ON LEGISLATION AFTER INTRODUCTION
3.19 The provision of advice to the Scottish Parliament on legislation after introduction will be a key function of the Commission. The limits implied in this will be defined in statute, with reference being made to advice-provision on all Executive, Member's and Committee Bills and Scottish Statutory Instruments. It is the view of the Executive that this role will be sufficient, given the existing mechanisms for scrutiny of legislation: Scottish Ministers must ensure that a Bill is within the competence of the Scottish Parliament (which includes compliance with ECHR); the Presiding Officer must present his or her opinion of whether the Bill is within competence; and human rights points are covered in the policy memorandum that accompanies all Executive Bills introduced into Parliament. Furthermore, the Advocate General, the Lord Advocate or the Attorney General may refer a bill to the Judicial Committee of the Privy Council for a decision on competence.
How this function might work
3.20 The consultation document presents two possible routes by which the Commission might offer advice to the Scottish Parliament:
- to form a new dedicated Human Rights Committee (similar to the Joint Committee on Human Rights at Westminster) which would have the primary relationship between Parliament and the Commission;
- to engage with the existing process of Lead Committee scrutiny, which takes place at Stages 1 and 2 of new legislation.
3.21 It will be for the Parliament to decide how to proceed, but the Executive has stated that it would prefer that a separate Human Rights Committee should not be established, and that feeding into Lead Committee Stage 1 scrutiny would be the more appropriate practice. Like any other body, the Commission would then be able to comment on any Stage 2 and 3 amendments.
B3. Do you agree that we should not ask the Scottish Parliament to consider establishing a separate Human Rights Committee?
3.22 Twenty-nine of the 40 respondents to this question agreed that the Parliament should not be asked to establish a separate Human Rights Committee. However, 7 organisations (almost one fifth) disagreed, while another 4 were unsure whether or not a separate committee was a good idea. Many of the comments on this issue have relevance to question B6 on the use of the Commission by MSPs and parliamentary committees as a source of expert advice.
3.23 It was generally thought that the Parliament should decide how best to ensure proper scrutiny of legislation and how to enable the Commission to engage in the legislative process at an early phase. Several submissions observed that the separate committees already have an obligation to work towards the mainstreaming of human rights. COSLA also warned that if there were a separate Human Rights Committee this could lead to duplication of the effort entailed in the scrutiny of legislation by the Commission, "provided that the human rights dimension is built into the scrutiny functions of parliamentary committees".
3.24 Those respondents who argued for the creation of a Human Rights Committee generally did so on the grounds that it would increase the expertise of the Parliament in this area and provide a parliamentary focus for human rights issues and a single contact point. The example of the Equal Opportunities Committee in the Scottish Parliament was used by one consultee to demonstrate how mainstreaming could happen more quickly and more effectively if human rights were the responsibility of one committee. In recognition of potential resource constraints, the EOC suggested a compromise whereby the remit of the current Equal Opportunities Committee would be expanded to include human rights.
3.25 The Law Society suggested that the Commission be involved:
"on an ongoing basis throughout the passage of the Bill so that a full debate on the issues of compliance can take place before the legislation is passed."
How legislation is brought to the Commission's attention
3.26 In the consultation document, the Executive presents two options for how new legislation could be brought to the attention of the Commission:
- the Scottish Parliament could consider amending standing orders to include a new duty to send all legislation that is introduced to the Commission;
- as part of its own administrative procedures, the Commission would be expected to monitor legislation and decide on its own priorities.
The second of these is preferred by the Executive.
B4. Do you agree that the Commission should monitor legislation introduced as part of its own administrative procedures?
3.27 Thirty-eight consultees provided an opinion on this. Thirty-five of these agreed that the Commission should monitor legislation as part of its own procedures.
3.28 Many expressed a view that:
"the monitoring role should be part of the Commission's powers rather than a mandatory part of the legislative process." (legal organisation)
Many also thought that it should be able to determine the degree of priority attached to this role and be involved at earlier stages in the development of potential legislation. Of those who offered further comment, many recommended that the Commission should automatically be notified of all legislation going through parliament but should not be under a statutory requirement to comment. The Scottish Council for Voluntary Organisations advised that the Commission's monitoring of legislation should itself be monitored to ensure that it was adequately resourced to contribute on legislation as it saw fit.
3.29 The Law Society observed that:
"any bureaucratic failure to inform the Commission of the introduction of a Bill should not affect the Bill's validity once it becomes an Act. Also in that connection, it may be appropriate for the Commission to be considered as a 'standing witness' to Parliamentary Committees considering legislation at stage 1, particularly where difficult human rights issues arise."
3.30 Two of the three bodies who did not support this proposal did so because they feared that the Commission would be overwhelmed by this task, given the volume of legislation generated. One local authority argued that current arrangements were sufficient and the Commission's involvement in the process would create a layer of unnecessary bureaucracy.
Relationship with the Scottish Parliament
3.31 The Executive has said that, as the independence of the Commission will be essential, it would not be appropriate for it to be given a special "advisory body" role in relation to the Parliament that could appear to grant it some special status. To ensure its independence, the Commission should not be subject to direction by the Parliament, and, similarly, Parliamentary committees should not be bound to see or take into account advice provided by the Commission. The Commission would be able to submit written evidence; ask the Parliament that it be able to provide oral evidence; and could be specifically invited by committees to give advice and evidence.
3.32 Although it is expected that the Commission's engagement in the legislative process would be largely through committees, individual MSPs would be able to approach the body for information and advice throughout the Bill process. All levels of the Scottish Parliament should be able to draw on the expertise of the Commission to seek its advice, observations and evidence on any relevant human rights issues, aside from its function in advising on legislation after introduction. Scottish Parliament Information Centre (SPICe) researchers should also be able to address queries to the Commission.
B5. Do you agree that the Commission should not act on the direction of the Scottish Parliament?
3.33 There was almost unanimous support (36 out of 37 responses) for the principle that the Commission should not be bound to act to the direction of Parliament, many comments stressing the importance of the autonomy and independence of the Commission.
3.34 However, several organisations noted that the Commission should be expected to consider any reasonable requests from Scottish Parliamentary committees for information, counsel, or the investigation of specific matters. A couple of respondents explicitly referred to the point made in the consultation paper that, equally, committees should not be obliged to follow advice from the Commission, but should be expected to provide justification when they opted not to do so.
B6. Do you agree that MSPs should be able to call on the Commission as a source of expert advice outside the confines of advising on legislation?
3.35 All but one of the 33 commenting on this proposal agreed that MSPs should be able to call upon the Commission as an expert body for advice outside the legislative process, for example, at the early stages of consultation on future legislation, or on other human rights issues.
3.36 However, consultees warned that demand from MSPs should not be allowed to affect the Commission's capacity to respond to the needs of others, and that it should decide which matters warranted its consideration. One respondent suggested that requests from MSPs could be filtered through SPICe, while another was of the opinion that the role of the Commission in relation to Scottish MPs needed to be clarified in line with whether its remit extended to reserved matters.
3.37 The sole dissenter held the view that MSPs already have sufficient access to funding for research by either their own staff or independent and academic sources, and so should not have favoured access to the Commission over the public.
GENERAL MONITORING AND REPORTING IN RELATION TO LAW AND PRACTICE
3.38 The UN Paris Principles and the Commonwealth Secretariat's guidance on national human rights institutions offer best practice guidance on the establishment of such bodies, which includes the suggestion that national human rights bodies should review law and practice on a regular basis. Monitoring law and practice, and reporting on its findings, are expected to be key functions of the Scottish Human Rights Commission. The monitoring role would also extend to proposed policy once this has been published by the Executive, for example, in the form of a consultation paper, draft legislation or a public announcement. The Commission would be free to publish and discuss its comments.
3.39 The consultation document reiterates that it will be the responsibility of the Commission to determine its own priorities, although it does provide examples of potential activities it could undertake in fulfilling its monitoring and reporting function. These include ongoing examination of key Scottish statutes, reviews of the human rights of specific disadvantaged groups, and making submissions on international human rights instruments.
Relationship with the Scottish Executive and the Scottish Parliament
3.40 The Executive makes it clear that it would be inappropriate for the Commission to have the role of a special advisory body, as it should not be under any obligation to undertake monitoring at the request of the Executive or the Parliament. Instead, the Commission should make its own decisions about preparing, submitting and publishing advice, reports, views and proposals. While it will be free to comment on any issue in the public domain, it will be for the Executive to decide whether earlier engagement of the Commission in the process of policy formulation would be appropriate. Finally, given that Scottish Ministers seek and receive advice from various sources they would not be statutorily bound to consider the advice of the Commission on law and practice as that would place it on a different footing from other bodies.
B7. Do you agree that the Commission should not be subject to direction from the Scottish Executive or Scottish Parliament in carrying out this function?
3.41 All of the 34 responses to this question agreed that the Commission should be, and should be seen to be, independent of direction from either the Scottish Executive or the Scottish Parliament.
B8. Do you agree that the Commission should have no special policy advisory role but might be invited to contribute to the policy development process in appropriate circumstances in line with established procedures?
3.42 Thirty-one of the 35 respondents agreed that the Commission should make meaningful contributions to policy development, but should not have any special status that might lead to its independence being questioned. Several comments alluded to the importance of there being transparency in relations with the Executive, and a few pointed to the need for the Commission's independence to be established in statute:
"The preservation of [the Commission's] independence and integrity, however, requires that the Commission should not have a special advisory role with the Executive or be subject to directions from Ministers, who in turn need not act on the Commission's advice or recommendations; Ministers should nonetheless be required to have regard to the Commission's advice or recommendations and give reasons for not acting on them." (COSLA)
"A balance has to be struck so that the Commission is, and is perceived to be independent of government, yet has sufficiently good working relationships to allow it to influence government policy in a positive manner." (Faculty of Advocates)
3.43 A city council that had earlier not seen the need for a commission warned against relationships between government and the Commission becoming too formalised:
"If the Commission has sufficient standing and as it gains a reputation for expertise it is hoped the Commission's views will be sought proactively on proposed policy developments. If there was a statutory requirement to consult the Commission in a range of specified policy areas, there is a danger this would lead to token consultation. This would devalue the potential input by the Commission to the refinement of a range of policy issues and instruments designed to realise the objectives of the Human Rights regime."
3.44 The four consultees who rejected the proposal largely did so on the grounds that human rights are so important that the Commission should have a more defined advisory role:
"[T]here would appear to be a good argument for placing a statutory duty on Ministers to have regard to the advice of the Commission." (local authority)
One non-profit organisation warned against assuming that appropriate consultation and communication procedures would be established without these being prescribed, and one council notes that the Commission would require sufficient status to allow it to make the Executive and Parliament aware of its views whenever it saw fit, and that its contribution to policy development should not preclude it from a special advisory role.
B9. Do you agree that Scottish Ministers should develop a close working relationship, which would give due weight to the Commission's views, but should not be under a statutory duty to take the Commission's advice into account?
3.45 Twenty-eight out of 35 consultees commenting on this proposal agreed with it.
3.46 One police organisation emphasised that Ministers should not have a statutory duty to take the Commission's advice into account as this would endow it with a standing above that of other organisations, and COSLA suggested that a statutory relationship would affect the body's independence.
3.47 The Law Society of Scotland argued that the Executive has access to its own specialist legal advice, and that there would, therefore, be no need for a statutory obligation to take the Commission's advice into account. They also made the point that such a statutory duty would create an overwhelming burden on the body.
3.48 Most of the comments on this question observed that while Ministers should not be expected always to take the Commission's advice, they should have to provide an explanation of why they had not done so. The Parliament and ultimately the electorate would hold the Executive to account, not the Commission: "Parliament must be seen as the higher authority as an elected body" (local authority).
3.49 A close working relationship, involving the Commission from the early stages in policy formulation but without Ministers being obliged to take the Commission's advice, was thought, therefore, to offer a sufficient basis for the extent to which Ministers should have regard to the advice of the Commission.
3.50 Five answered in the negative, with the remaining two responses indeterminate. Most of the "no" responses thought that Ministers should be under a statutory duty to take advice into account and be able to show that they have done so, whether advice was followed or not. However, one educational institution suggested that the onus should be on the Commission to offer advice rather than Ministers seeking it.
3.51 One consultee opposed the proposal on quite different grounds from other objectors. In their view, the Commission and the Executive should remain at arm's length and develop no close working relationships, as this would imperil the Commission's independence or appearance of independence.
ABILITY TO INVESTIGATE AND REPORT ON GENERIC OR SECTORAL HUMAN RIGHTS ISSUES
3.52 Subsequent to the first phase of consultation, the Executive decided that the Commission should be able to investigate and report on generic or sectoral human rights issues but would not have the power to pursue individual complaints.
3.53 The generic investigative function will extend beyond the reporting and monitoring role of the Commission. It is envisaged that investigations will be into broad areas of public policy and practice, and concern failures to comply with human rights that may be the subject of general "complaint" by the public. Investigations will be advertised; may involve the public taking of evidence; and may result in recommendations that are placed in the public domain.
3.54 The Commission will not have the ability to fund or bring to court individual cases, although it may choose to investigate an area where a number of people have raised an issue and it would then examine generic matters, rather than specific circumstances in relation to this. This function is also relevant to the way in which the Commission will act as an expert body for the Scottish Parliament and other bodies.
How this function might work
3.55 The Commission should be able to launch an investigation on its own initiative or in response to concerns that have been brought to it, but not as formal requests from the Scottish Executive or the Scottish Parliament. Just as in relation to monitoring and reporting by the Commission, neither the Executive nor the Parliament will be under a duty to take the views of the body into account, although they would carry due weight.
3.56 Human rights instruments place duties upon governments and public bodies only. Despite this, the Commission should, as appropriate, be able to provide guidance and raise awareness in relation to private bodies, and might charge for this provision. Many public functions and services are now undertaken by private bodies which brings them within the remit of the Commission.
3.57 The drafting of the legislation should ensure that the remit of the Commission does not conflict or replicate that of any existing body with an investigative function. It is also expected that the Commission will need to draw up memoranda of understanding with relevant bodies to ensure there is no duplication of effort and to minimise any possible conflict between their roles.
Powers to support the investigatory function
3.58 In considering options for how the Commission could fulfil an investigatory role, the Executive considered existing models for human rights commissions in other countries and statutory bodies in the UK, particularly in Scotland, based on different structures for the power to access information and enforcement powers.
Access to information
3.59 Examples of human rights bodies elsewhere and of existing ombudsmen and commissioners in this country support the proposal by the Executive that the Commission should have powers to access information. Based on the precedent of the Scottish Public Services Ombudsman, the Commission could be given powers to require the provision of information, documents and testimony. It could also be given the power to apply to the Court of Session should a body refuse to comply with such powers.
B10. Do you agree that the Commission should have access to information powers based on the powers given to the Scottish Public Services Ombudsman?
3.60 Thirty-seven of the 39 consultees agreed with this proposal. Support across the board for the Commission being able to compel evidence highlights the importance of such a power in fulfilling its functions.
3.61 Several non-profit bodies shared the opinion expressed by an academic sector consultee that the right of access to premises could also be important:
"the Commission should also have the power to enter any premises and if necessary, to interview persons…. Already, the European Committee for the Prevention of Torture (the CPT) enjoys a similar power in Scotland. It may thus be appropriate to use the CPT model as the basis for powers of entry into places of detention. It would also be crucial to have the powers - where necessary - to enter premises and remove relevant evidence. Evidence from other jurisdictions suggests that such a power is of immense importance but in practice requires rarely to be used simply on account of the existence of the authority."
3.62 One major human rights campaign organisation answered negatively, but this was on the grounds that the Commission should have additional powers to those of the Public Services Ombudsman, including the ability to enter premises and compel witnesses and the production of information and documents in the manner of a court.
"[T]he Commission should not be required to rely on the right to access to information provided in the Freedom of Information Act, as this would be insufficient for the Commission to carry out its functions effectively. … This must be a freestanding power that the Commission can exercise at its discretion rather than having to go to court, as the Scottish Information Commissioner must do, to implement this power."
3.63 The Scottish Legal Aid Board did not express a definite verdict on this proposal, although they pointed out that endowing the Commission with such powers would require changes to legal aid legislation, as had been necessary for the Public Services Ombudsman.
Enforcement
3.64 The Executive has considered whether the Commission should have enforcement powers to apply sanctions, if, following a report of an investigation, the body concerned did not act on the Commission's recommendations. Having again looked at existing bodies and ombudsmen, and with concerns that the Commission should be independent and not be perceived as acting like a court, the Executive proposes that it should not have such enforcement powers.
3.65 This would not mean that its recommendations and advice could go unheeded for other alternatives to enforcement could be employed, such as:
- the publication of a report on completion of each investigation, as a statutory requirement;
- requiring bodies that have been investigated to submit a written response to the Commission within a stated time period, and these responses could be made public;
- and the Commission could hold investigations in public or private, as it judges appropriate.
B11. Do you agree that the Commission should not have enforcement powers?
3.66 Forty-four consultees commented on this question. Out of these, almost half (21) agreed that the Commission should not have enforcement powers. However, 17 did not; a further 5 did not know which course should be taken; and one commented on the question but did not provide a response reflecting a particular opinion on the matter. Thirteen of those who disagreed represented more than half of the NGOs who participated in the consultation. However, much of this disagreement appeared to stem from an understanding that the phrase "enforcement powers" covered powers in relation to the conduct of investigations as well as, or instead of, powers to enforce decisions arising from such investigations. This uncertainty will undoubtedly have had a bearing on the way in which some consultees interpreted and responded to the proposal, and renders this topic one that might benefit from further definition and debate.
3.67 The Equal Opportunities Commission discussed its concerns about what was connoted in the discussion of this issue and the question:
"The EOC has expressed concern in the past about the lack of 'teeth' of the formal investigation process. The most obvious 'sanction' would be the adverse publicity engendered by the decision to embark on an investigation.
"What is proposed here would appear to have even less force than even the limited sanctions which are available to the EOC during the formal investigation process. The EOC believes that it will be important for any decisions made as a result of the formal investigation process to be enforceable. This does not mean that the Commission itself would enforce the decision, but rather mechanisms would be put in place for the courts to be able to enforce the decisions. The enforcement powers which accompany the new duties introduced under the Race Relations Amendment Act could be considered as a possible example."
3.68 Those who supported the Executive's proposal noted that enforcement is a matter for the Parliament and the Executive, or a function of the courts. It was also noted that having enforcement powers could be at odds with the Commission's proposed advisory role, and that the Public Services Ombudsman functions successfully without enforcement powers:
"Formal enforcement mechanisms should be a last resort and would clearly conflict with the role of the judiciary. […] The Commission should consider the model of the Standards Commission in its approach to generic investigations or sectoral matters."
3.69 Some argued that the Commission will need enforcement powers (including alternative dispute resolution, assisting individuals or groups to take "test cases", and bringing proceedings in its own name) in order to be credible. One human rights NGO and the STUC suggested that the Commission should have enforcement powers similar to those of the Commission for Racial Equality.
3.70 The Equal Opportunities Commission argued that enforcement powers and the ability to support individual cases through the courts would be:
"necessary if the powers and duties of the Commission are to mirror those of any co-existing equality commissions. Further, given proposals for any single equality body to be able to take free-standing human rights type cases in the equality field, there will exist a 'hierarchy of protection' depending on which human right has been breached."
3.71 These and other comments by the EOC appear to highlight differences that will exist between the structure and role of the existing bodies and the proposed UK Commission for Equality and Human Rights and potential problems that could arise.
3.72 One non-profit body argued that compliance might only be forthcoming with the knowledge that court action could follow non-cooperation. Examples of other human rights commissions where the threat of legal action is useful in enforcing compliance, and where enforcement powers are very rarely exercised, were used to bolster their view. The deterrent effect of having enforcement powers was raised by another non-profit organisation, which feared that bodies without such are often seen as "toothless":
"The provision of enforcement powers is considered absolutely essential to the effectiveness of a Human Rights Commission. […] It is envisaged that the power of enforcement through a court would seldom be used, but would be a necessary deterrent."
3.73 The Scottish Consumer Council proposed that the Commission should be able to take individual complaints, even though this would place significant burden on the Commission's resources:
"There is little point in conferring rights on people if they have no means of enforcing those rights. Many people will be unable to afford to take a case to court, and even those [who] are financially eligible for legal aid may be unable to find a solicitor to take on their case. We understand that there are at present few solicitors with sufficient expertise to take on such cases, and that moreover virtually all of them deal only with criminal rather than civil matters."
3.74 One charity representing the interests of the elderly thought that the Commission should be able to support individual cases through the courts where they identify a public interest, but,
"should not have powers to directly order compensation or fine public authorities. Whilst the Commission should be free to recommend compensation and redress it should not act as tribunal or perform a quasi-judicial role."
It also urged that:
"The maximum powers available to existing commissions and ombudsmen must be made available to the Commission. Again it would seem counter-productive to limit the Commission's ability to undertake its vital investigative function. […] The fact that powers were available would deter non-co-operation and should ensure that actual deployment would be rare."
3.75 Another charity disapproved with the stance taken towards different commission models in the consultation document:
"such a model would reduce the Commission to being little more than a talking shop. The consultation outlines the powers that have been made available to other statutory bodies including the Public Services Ombudsman for Scotland, and the Scottish Parliamentary Standards Commissioner whose powers are considerably wider than the powers described in the second model. We acknowledge that as an unelected body, the Commission should not have a 'court-like' role and therefore should not be given enforcement powers, thus ruling out the fourth model. However, we can see no reason for the Executive to reject the third model."
B12. Do you agree that as an alternative to enforcement powers:
a. the Commission should publish a report following each investigation?
b. bodies investigated should offer a written response within a stipulated time limit?
c. investigations may be conducted in public or private?
3.76 In comparison with the level of response to question B11, fewer responses were received to these three questions about alternatives to enforcement powers, which may be because of the comparatively low level of support for, and fairly high level of ambivalence towards question B11.
3.77 There was broad support (29 out of 31 comments) for the publication of reports following investigations. Those who opposed this proposal did so in reference to the possibility that the Commission will not have enforcement powers or the ability to require a specific remedial action, which raised questions about the efficacy or worthiness of a published report:
"Making investigations public will have a limited effect in terms of positive outcomes for the individuals affected as they will not require specific remedial action. Similarly, with written responses from bodies subject to investigation, these could reinforce defensive stances rather than encouraging proactive introspection and subsequent improvement." (non-profit sector)
3.78 These reasons and an inability to take individual cases were, however, also used to support the publication of reports.
3.79 Only one of the 27 who commented on whether bodies which had been investigated should supply a written reply within a stipulated period did not agree with this, and another opinion was unclear from the submission.
3.80 One organisation suggested that bodies which had been subjected to investigation:
"should have an obligation not only to submit written responses but also to demonstrate that changes have been initiated or will be in appropriate time. This enhances the 'enforcement' capacities of the Commission without giving it formal powers, and ensures that it doesn't simply become another well-meaning quango, with no real power or authority."
3.81 Another suggested that investigated bodies should be obliged to produce a number of reports from senior figures over time to demonstrate that progress has actually been made in relation to the findings of an investigation, so that promises of remedial action could be monitored. On a similar tack, the respondent who explicitly rejected the proposition argued that written responses would be less important than actions taken to address the issues investigated: the Commission would be more effective if it offered advice and guidance on improving the situation rather than if it were just to impose sanctions.
3.82 There was strong support (by 27 out of 28 consultees) for the suggestion concerning the public conduct of hearings. The general view was inquiries should be conducted in public, in order to foster and maintain public confidence, unless there were pressing reasons for holding the inquiry, or part of the inquiry, in private. The vulnerability and safety of the parties involved would be the main justification for a private option. For example, one children's charity argued that, although investigations should generally take place in public, special measures should be put in place for children and young people in giving evidence.
3.83 The one body that did not provide support for these proposals felt that there had been insufficient discussion of the terms "private" and "public" in the consultation document, and the circumstances when one might be decided over the other:
"any investigation by a public body in the nature of a quasi-judicial process should be held in public and should be accompanied by other relevant safeguards. There should for example be appropriate opportunities to make representations, and authorities under investigation should be entitled to be legally represented. The Faculty also takes the view that if the SHRC is to conduct quasi-judicial proceedings, the case for enforcement powers, possibly on an ad hoc basis on application to the court, in relation to the production of information and witness testimony may have to be re-examined." (Faculty of Advocates)
B13. Do you have any suggestions for other alternatives to enforcement powers?
3.84 Few consultees directly responded to this question, however, many of the comments made in relation to questions B11 and B12 touched on this issue, particularly in relation to whether the Commission should have the power to take cases itself or support others in taking cases. Although the consultation document does not seek a view on the proposal by the Executive that the Commission should not have such powers, this issue was raised by many of those who opposed the proposition in question B11. One charity stated that the proposal in the consultation paper implies that,
"individual cases help to develop case law but generic and sectoral investigations will contribute directly towards building a human rights culture in Scotland. We do not necessarily understand or accept this distinction. We do therefore believe that the Scottish Human Rights Commission should have the power to pursue individual complaints."
3.85 As many comments went beyond answering the question posed and echo comments about the ability to take cases, made in relation to other sections of the consultation document, they have been discussed in the final chapter
3.86 One consumer rights body recommended that the Commission should be given the power to resolve disputes using alternative dispute resolution along the lines of the way in which the Scottish Information Commissioner can do so under the Freedom of Information (Scotland) Act 2002.
3.87 Some of those who wished for the Commission to be able to take cases and have enforcement powers also described restrictions on what the body would be able to do:
"Although the Commission will be primarily investigating public bodies, it will still require clearly defined enforcement powers of last resort. These would be for use in cases where there are serious and persistent breaches of human rights. In such cases the Commission should be able to seek judicial review in relation to a public body's activities. Such powers could be vital to changing the attitudes of public bodies that act in a belligerent way that wilfully ignores recommendations made by the Commission. The Courts offer the best way of finally resolving conflicts between the human rights of groups or individuals and the policies of public bodies. The fact that such powers exist would provide a strong incentive for co-operation by public authorities. Clearly, it would be both in the Commission's and the public bodies' interests to ensure that litigation was avoided. The Commission would clearly not use the powers lightly given the costs and political implications of legally challenging another public body.
"The Commission should not have powers to directly order compensation or fine public authorities. Whilst the Commission should be free to recommend compensation and redress it should not act as tribunal or perform a quasi-judicial role. The Scottish Parliament and the Scottish Executive should remain politically accountable for ensuring compliance and recompense for individuals whose Human Rights have been breached. Actions through the Courts would also allow individuals to seek recompense for breaches of human rights. The Commission should be allowed some scope to support such cases when they are in the public interest." (non-profit)
RELATIONSHIP WITH THE COURTS
3.88 Although the Executive is proposing that the Commission will not be empowered to take on individual cases or complaints in its own name, the Executive has considered the possible relationship it might have with the courts. For example, as it will have expertise in examining human rights law, it would be valuable for the courts to access such knowledge through requests for background information to a particular human rights matter, in writing or orally, to supplement submissions made by the parties to the process.
How this function might work
3.89 The Commonwealth Guidance views human rights commissions as having a role that is complementary to, but quite distinct from, that of the courts. In line with the examples provided by several existing human rights commissions, it is proposed to give the Commission the official status of amicus curiae ("friend of the court"), a role that entails assisting the court and addressing it on issues. There is no advocacy involved: the amicus presents legal arguments to the court that are relevant to the case. It does not represent the view of any party in a particular case.
3.90 In Scotland, the amicus curiae role is not widely used, and is almost solely employed in civil cases where there is only one party or where one of the parties has failed to intervene, most commonly in Court of Session appeals where one side has lost interest and no longer wants to pursue the case. The use of the amicus in the Court of Session could be the basis for its use in a wider array of civil cases.
3.91 In the opinion of the Executive, there is less of an argument for giving a criminal court the power to call on the Commission, as there will always be at least two parties to a case. It is of the opinion that there is evidence from criminal cases, since 1999, that parties are themselves willing and able to bring human rights issues before the courts. Additionally, the Executive is concerned that such intervention might be less appropriate in the more adversarial context of a criminal case, and that if Commission intervention were to undermine the position of the accused, or if its advice apparently suggested support for a party, this would throw doubt on the fairness of the trial.
3.92 The Executive, therefore, proposes that only the Court of Session in civil appeals should be able to call for intervention by the Commission. This could also be done where a human rights issue arose in a judicial review. In other contexts, the Executive considers that the amicus curiae function would not be the most appropriate model for intervention.
3.93 The role of the Commission would be that of an expert assessor to the court, invited to assist and acting in the public interest. Procedural rules in relation to judicial review in Scotland could be adapted to cover this role for the Commission.
B14. Do you agree that the Commission should be able to assist the court in Scotland?
B15. Do you agree that the Commission could be invited to intervene by the Court of Session at appeal stage or in a judicial review?
3.94 Many submissions addressed questions B14 and B15 together. A recurrent theme in submissions on these questions concerned the conviction amongst many consultees that the Commission should be able to take test cases or cases in its own name. This is clearly an area where many of those with an interest in human rights in Scotland were not content with a fundamental aspect of the proposed functions of the Commission delineated in the consultation document:
"While favouring the mode of interaction with the courts suggested in the document, we are aware of arguments seeking the ability for the Commission to bring test cases to court. It seems to us that this discussion is far from over and that a way should be found to make it clear that this option is under continuing review and may be revisited." (religious body)
3.95 It was acknowledged that cases under the Human Rights Act have to be brought by a victim, but several consultees did not see this limitation as permanently precluding the Commission from taking cases and argued for the necessary changes to be made to the Human Rights Act. Clearly, such a view is problematic as it questions elements of the very basis of the Commission as currently planned.
3.96 Given the significance and interest paid to this matter, comments provided in relation to these two questions and others that refer to the Commission having the power to take cases are discussed in the final chapter. Comments presented here are those relating specifically to the consultation proposals.
3.97 Thirty-seven out of the 39 responses to question B14 were positive. Two local authorities disagreed with these proposals on the grounds that existing mechanisms for appeal and judicial review provide the courts with sufficient opportunity for the courts to address human rights issues and involvement in a case could lead to challenges about the neutrality and credibility of the Commission as an impartial provider of advice and guidance. One indeed disputed whether the amicus role was even suitable for civil cases, although this may have been due to a lack of understanding of what the role entails:
"Civil actions are also adversarial and as any action will invariably involve a public authority, it is submitted public interest issues also arise. Furthermore, as the Commission is charged with advancing the cause of human rights it would be difficult for the Commission to maintain a neutral role, advancing both the pros and cons of any case, but would be in danger of becoming identified with the challenger."
3.98 Twenty-nine consultees responded to question B15; the majority (22) were in favour of the proposal, while 4 were unsure and 3 disagreed. However, it should be noted that many of those who were in agreement and added further comment clearly did not accept that these should be the only circumstances when the Commission should be called upon to act as amicus curiae. Themes which recurred in dispute with the specifics of the proposals as outlined in the consultation document were: the relationship with the criminal courts; the relationship with lower courts and the power of the body to intervene on its own initiative; and whether the Commission should be able to take cases in its own name or support others to take cases.
3.99 One consultee, echoing a suggestion made by another in relation to question B13, argued that the Commission should be able to conduct (or outsource) alternative dispute resolution, thereby reducing the burden on the legal system and reducing the cost of taking legal action on human rights issues.
3.100 A charity for the elderly noted that it did not have the technical, legal knowledge to comment on question B 15. It did feel, however, that this was one of the most problematic consultation areas:
"The immediate assumption that the Commission will not have any powers with regard to test cases is deeply flawed. If the commission does not have any enforcement powers it may well have to sit back and watch continuing breaches of human rights. Meanwhile, due to the costs of litigation an aggrieved party who is seeking recompense may be unable to engage legal action. Such a situation will prevent human rights cases being tried and legal arguments being tested in court. The Commission's credibility and effectiveness will clearly be undermined if it is sidelined from the court system when issues of significant public interest require resolution.
"[…] It seems conceivable that a public body might ignore the Commission's findings in the belief that there was no way of forcing compliance. Such a situation clearly risks undermining the standing and authority of the Commission's recommendations. It has not been uncommon for individuals to be denied care or support by local authorities only to have their rights upheld in the courts. Clearly, similar and related cases will arise with human rights implications, and the Commission should be able to be involved when this is appropriate."
The relationship with lower courts and intervention by the Commission on its own initiative
3.101 Several consultees disagreed with the proposed restriction that would allow only the Court of Session to call on the Commission to intervene at appeal or judicial review. Points that were made were that the lower courts could need the human rights expertise more than the Court of Session and that human rights issues can arise at any stage in a case in significant ways.
3.102 There was also concern that courts would not turn to the Commission, so it should be free to assume the role of amicus as it saw fit:
"We further believe that the Commission should be given the power to intervene in cases and to act as an amicus curiae where appropriate without relying on the invitation of the courts to do so." (non-profit)
The Faculty of Advocates expressed its interpretation of this issue:
"The Faculty acknowledges that intervention will tend to occur in the later stages of proceedings in the higher courts, but sees no principled reason to restrict the fora in which intervention may take place. Lower courts and tribunals are as much bound by the Human Rights Act as higher courts. The decisions of many tribunals such as the Immigration Appeal Tribunal or the Employment Appeals tribunal are of importance in deciding the law in their respective fields; and many important tribunal decisions are not appealed, but may nonetheless have profound human rights applications."
Intervention in criminal cases
3.103 Four varied consultees did explicitly support the proposal for restricting the amicus curiae role of the Commission to civil cases. Many comments, however, were at variance with this. The Faculty of Advocates, for example, argued that human rights issues may arise at any stage of criminal proceedings, and that the representations of the Commission in such circumstances may well be of assistance. The Faculty also referred to the Scottish criminal case of HMA v Montgomery and Coulter where the Judicial Committee of the Privy Council allowed the London-based organisation Justice to intervene. The Faculty argued that it would be preferable if an authoritative Scottish body such as the Commission were empowered to make similar interventions in appropriate circumstances.
3.104 A range of non-governmental bodies and charities, local government representations and a professional body expressed similar arguments. The SCVO, for instance, disputed the view in the document that the amicus curiae would be any more prejudicial in criminal cases than in civil: it also believed that the Commission should be able to bring cases to court and be party to cases.
3.105 The Scottish Criminal Cases Review Commission also foresaw potential difficulties with the proposed approach in relation to its work:
"The SCCRC is of the view that if the SHRC is restricted from making representations in connection with appeal hearings at the Court of Justiciary but is entitled to make representations at a judicial review hearing concerning a determination of an application by the SCCRC, this may lead to a situation where the SHRC is only able to make representations in relation to isolated situations where a decision by the SCCRC is challenged by means of a judicial review.
"The SCCRC believes that a decision on a human rights issue in a criminal case may impact upon civil law. An example of this is the decision concerning temporary sheriffs by the High Court in Starrs v Ruxton 2000…. Consequently the SCCRC believes that it may be too restrictive to exclude the Commission from making representations at a criminal appeal."
3.106 The Law Society of Scotland also challenged the legal interpretation upon which the consultation document proposals were predicated. It argued that the Commission should be allowed to intervene in criminal cases, although in a more limited way than was suggested in some submissions.
"The Society does agree that the Commission should be able to assist the courts in Scotland. It notes however that the intention that this should be restricted to civil matters in the Court of Session at appeal stage (and to judicial review where a human rights issue has arisen) and that the procedural arrangements should be similar to those for intervention in judicial review. As a first point, the Society can also see a role for intervention of the type proposed in criminal matters, although only at the appeal stage and where one of the grounds of appeal raises an issue under the Convention, the Human Rights Act 1998 or a devolution issue. The Society considers that court decisions may have an important impact on the substantive criminal law, not just on procedural matters, and that where a substantial issue of principle arises, the intervention of a Human Rights Commission may be appropriate."
The power to take cases in the Commission's own name or support others
3.107 This was one of the most contentious subjects raised, across responses, as the Executive has decided that the Commission should not be given powers to take test cases or to support others in taking cases. One religious body and a local government respondent agreed with the restrictions in question B15 on the grounds that a broader role would be burdensome and risk other areas of work being neglected.
3.108 However, many did not agree and saw the power to take cases as being an issue related to that of enforcement powers:
"The Society also agrees that it is of paramount importance that the Commission should not become a representative party to any case nor should appear to do so. However, the Society would reiterate that this should not hamper the Commission taking action or being involved in actions on its own account, such as in enforcing its powers of information (as referred to above), or indeed in relation to other matters (for example employment issues in relation to its own staff)." (The Law Society of Scotland)
3.109 The volume and variety of comments on the question of whether the Commission should have the power to take cases are such that they have been discussed at further length in the final chapter.
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