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The Scottish Human Rights Commission: Analysis of Consultation Responses

CHAPTER FOUR THE STRUCTURE OF THE COMMISSION

4.1 The success of the Commission will depend on its autonomous control of its strategy and priorities, within the statutory remit. It should not be subject to external control in relation to any of its functions, although as a public body it will have to balance its independence with accountability in relation to the performance of its statutory functions, use of funds, and the making of appointments that should support its impartiality. Formal arrangements governing such accountability will be stated in legislation. In the consultation document, the Executive expresses a preference for the Commission to be accountable to the Scottish Parliament, rather than to the Scottish Ministers, as is the case in the conventional model for Non-Departmental Public Bodies (NDPBs). One reason for this is that treating it like a traditional NDPB might imply closer relations with government than would be appropriate for an independent body able to hold Ministers to account.

4.2 The recently created Scottish Public Services Ombudsman and other commissioner bodies have been made accountable to the Scottish Parliament, a more accessible model, allowing MSPs to hold these bodies publicly to account. Doing the same with the Scottish Human Rights Commission would mean that the Scottish Parliament Corporate Body would determine its budget and oversee the appointment of Commissioners. The Commission would present an annual report to the Parliament and there could be the facility for the submission of ad hoc reports.

4.3 The Commission should also be made accountable to the public by ensuring that its processes are as inclusive and open as possible. Suggestions for how to achieve this are: independent evaluation and public input into reviews of performance; a public strategy document; and public meetings.

ACCOUNTABILITY

C1. Do you agree that the Commission should be accountable to the Scottish Parliament?

4.4 Thirty-six out of 39 consultees agreed that the Commission should be accountable to the Parliament, several alluding to the need for independence from the Executive.

4.5 One human rights body outlined how the appropriate status might be achieved:

4.6 Several responses focussed on the role of annual reporting and accounts in assuring accountability and a few mentioned additional factors like funding, which would assure independence to be balanced with needs for accountability:

The Faculty of Advocates further suggested that the Commission should have to report to the Parliament, rather than being accountable to it in any broader way.

C2. Do you have any views on how the Commission could best be made accountable to the public?

4.7 Thirty-three respondents offered their ideas, most of which simply restated the case for public participation and involvement as central to accountability and echoed examples that had been offered in the consultation document. Suggestions for how accountability could be practicably supported were:

• a clear published outreach strategy and business plan document;
• the operation of a website;
• accessible reports and other publications, including small issues-based leaflets, on the web and in various formats, potentially including Gaelic and minority language versions;
• an annual report, including a summary of activities, presented in a way that would be comprehensible to the general reader;
• all papers and board minutes being available for scrutiny;
• liaison with other bodies;
• independent monitoring, evaluation or auditing of the Commission, possibly with the involvement of Audit Scotland;
• regular and wide-ranging consultation, both formal and informal, including the subject of people's expectations and perceptions of the Commission;
• public meetings and the use of reference groups in strategic areas, consisting of specialists and users of systems;
• localised presence, with satellite offices or at least local contacts, and roadshows;
• the assurance of maximum physical accessibility to the public;
• communication methods to allow the widest dissemination possible;
• having commissioners and staff representative of Scottish society;
• targeting hard-to-reach groups and individuals; and
• the ability to take test cases or make preliminary investigations for those ineligible for free advice and assistance.

MEMBERSHIP AND STAFF

4.8 The successful appointment of the right personnel will be critical to the effectiveness of the Commission. The Commissioners will provide the body with a vision and strategic direction and be its public face. The Paris Principles recommend that both staff and commissioners should be representative of society, including ethnic and vulnerable groups. However, attempting to achieve this would require a large number of Commissioners, which could create budgetary pressures and blur the lines of responsibility between staff and Commissioners. Nonetheless, broad representation of society should be one factor in the appointment of personnel and office bearers. Staff will be expected to provide the Commissioners, who should focus on strategy, with expert technical knowledge of specific legal issues and human rights as required, so a background in these areas would not be a requisite qualification for Commissioners.

C3. Do you agree that representation of Scottish society should be a factor to be considered in making the Commissioner and staff appointments?

4.9 Thirty-seven out of 39 respondents agreed that representation of Scottish society should be a factor in making appointments, but almost all warned that this should not override experience and qualifications. Broadly, there was agreement with the principle of the Commission being as representative as possible, tempered by the reality of needing personnel with appropriate skills and expertise, particularly legal experience or a background in human rights, for the varied roles that would be involved.

4.10 Drawing staff from different backgrounds and specialisms, and varied skills, such as ones relating to awareness-raising, training and working with people across the spectrum of Scottish society was a recurrent theme.

4.11 The remaining two consultees did not provide a definite answer either way to question C3.

Number of Commissioners

4.12 The Executive has considered the various commission models that exist. In the consultation document it voices concerns over potential logistical and decision-related problems that could arise if there were a mix of full-time and part-time Commissioners, although there could be an argument for the Chief Commissioner being full-time. It proposes that no more than three or four full-time Commissioners (including the Chief Commissioner) should be appointed to facilitate strategic control and minimise the burden on resources.

C4. Do you agree with our approach that a small number of full-time Commissioners, perhaps 3 or 4, would be preferable to other options?

4.13 Thirty-six responses were received to this question. This was one of the areas of greatest dissent. Two fifths (15 consultees) agreed with the approach; the same number disagreed, offering alternative models and generally arguing for more part-time commissioners; and the remaining fifth (7) reported that they did not know whether the proposed approach was preferable or not.

4.14 Those who favoured having three or four full-time Commissioners usually did so on the grounds that a small number of Commissioners would be more likely to facilitate consistent decision-making and would be logistically more practicable.

4.15 A similar proportion of respondents, from across the board of types of organisations, recommended a range of different models, many opting for a larger number of part-time Commissioners. Doubt about whether three or four full-time Commissioners would serve the aim of being representative of Scottish society was raised repeatedly.

4.16 Existing organisations were considered in some of the suggestions. Examples of the models which were proposed were:

4.17 Many respondents did not share the concern expressed in the consultation paper that a mix of full-time and part-time Commissioners might be difficult to manage. No single suggested approach recurred across the responses as a predominant, favoured model, however. Representatives from the academic and legal sector, professional bodies, and local government were amongst those who advocated a flexible approach in deciding on Commissioner numbers. Many thought that a mix of full-time and part-time individuals would be apt, depending on the priorities the body set itself, the type of applications received, and the way in which its role could evolve over time. The Law Society also suggested that, in order to tackle issues arising in specialist areas, ad hoc Commissioners could be recruited for fixed periods.

The staff

4.18 It will be essential for the core staff of the Commission to have relevant knowledge and experience in the area of human rights. Although legal expertise would not be critical, it could be possible for a legal adviser to be appointed and for the body to "buy in" advice. The Executive believes that legislation should state that the Commission should be empowered to decide on and appoint its staff. It will also be considered whether the key roles of the Chief Commissioner and of the Chief Executive (with prime responsibility for the body's management), which should be kept distinct, should be described in legislation.

C5. Do you agree that the Commission should have the power to determine and appoint its own staff?

4.19 None of the 31 respondents disagreed with the proposal. Although few comments were provided, particular suggestions for how the Commission's personnel needs could be satisfied were:

4.20 The point was reiterated that staffing should be representative of society and be done through open and competitive recruitment procedures.

ACCESSIBILITY

4.21 The Commission's accessibility to the Scottish people, in terms of its physical location and its services, will be central to its effectiveness. Factors in deciding its geographic location might include accessibility for a large proportion of the population and proximity to the Parliament, Executive and other bodies. The Executive believes that as an independent organisation the Commission should determine its own location. However, it recommends that the Commission consider co-location with similar organisations and should look at the experiences of other equality bodies.

4.22 Once established, the Commission will need to ensure that its processes and services are sufficiently accessible, which will carry particular challenges given that this must extend to some of the most marginalised and vulnerable groups in society. Suggestions in the consultation document that could support efforts towards accessibility are the formation of alliances with other NGOs; an interactive website; meetings away from its central location; and have a peripatetic development worker who would liaise with community organisations, creating a network of contacts.

C6. Do you agree that the Commission should be responsible for deciding its own location?

4.23 Thirty-six consultees responded to this question. The majority (32) thought that the Commission should be responsible for deciding its own location. A range of respondents considered that it would be sensible to consider sharing premises with a body such as one of the equality commissions or the Commissioner for Children and Young People. One local authority noted that a cost/benefit appraisal would ensure best use of the budget

4.24 Although proximity to public bodies and key stakeholders was mentioned as a factor to be taken into account by a few consultees, several respondents commented that an Edinburgh or Glasgow site should not be assumed, and encouraged consideration of locations elsewhere in Scotland. One council even suggested that the Commission should be located outside Edinburgh to demonstrate its independence from Scottish Ministers and the Parliament.

4.25 The need for physically accessible premises and good public transport links were highlighted by an NGO, who made additional suggestions regarding location:

4.26 The Scottish Council for Voluntary Organisations also made the case for local offices and one national one, but was concerned about cost implications, recommending that the Executive would, in such a case, need to revise the proposed budget. Many of the comments refer to the significance of other forms of access to the Commission, highlighting the value of good websites, telephone help-lines and the availability of information in a variety of formats and in languages other than English.

4.27 Two negative responses to the question were based on a view that the location should be decided by the Scottish Parliament and determined prior to the appointment of the Commission.

C7. Do you have a view on the ways in which the Commission could make its services more accessible to the public?

4.28 Many ideas about how this might be done reiterated responses to question C2 on how the Commission could be made accountable to the Scottish public. Some noted the influence that location would have on how well it achieved accessibility. Suggestions included:

• satellite offices throughout Scotland and at the Scottish Parliament to provide information to the public and to answer concerns or queries;
• staging seminars, conferences and regular meetings across Scotland;
• holding investigation hearings in major locations other than Edinburgh;
• use of existing advice and information services, such as the Citizens Advice Bureaux, in a way similar to the approach being used by the Scottish Public Services Ombudsman;
• a travelling development worker to foster a network of contacts with community-based organisations across the country (key partners, grass-roots community organisations, faith communities in Scotland, etc), and the possibility of having a named volunteer in different bodies to act as a human rights resource person;
• regular engagement with other bodies;
• as well as good quality electronic and published information, in libraries, schools and government buildings, for a range of audiences, information should be available in Braille, audio, different language formats and in language suitable for children;
• the establishment of a telephone helpline, a website, and email contact;
• good publicity, possibly to include a television campaign and a newsletter or bulletin;
• secondment of local authority staff.

4.29 The point was also made that a communications strategy could help to support all of this and that there should be monitoring or impact assessment undertaken, especially with regard to equality issues and the targeting of hard-to-reach, vulnerable groups, to ensure access to the Commission was as equitable as possible across Scottish society.

FUNDING

4.30 The Executive has estimated that an annual budget of around 1 million should be provided to the Commission, along with additional start-up costs. Funding will depend on final, detailed decisions about, for example, the body's structure and composition.

4.31 The Commission could also be empowered to charge for services which are not part of its publicly funded functions, such as human rights auditing for public bodies or training in the private sector. Charging would allow for income in addition to the annual budget, but would need to be carefully defined by legislation in order that it could not lead to the independence of the Commission being compromised, or being seen to be compromised.

C8. Should the Commission's budget be supplemented by the power to charge for some services, which would be additional to its publicly funded activities and specified in legislation?

a. If so, which services?

b. To what extent do you think that this would be compatible with maintaining the Commission's perceived independence?

4.32 Thirty-three consultees responded to question C8 and an additional 5 gave no definite answer. The latter respondents offered their thoughts on the topic in general, or used this as an opportunity to raise the issue of the Commission's budget. Of the 38 respondents commenting, 16 agreed that the Commission should be able to charge for services. However, 11 did not and a further 6 stated that they did not know whether it should or not. In relation to C8a, only 11 respondents offered suggestions for services that might be charged for, almost all focussing on four key areas: training, auditing, consultancy and publication.

4.33 One city council observed:

4.34 One local authority pointed out that the ability to charge for services should not detract from the need for publicly funded activities also to be properly resourced, while a non-profit body noted that the provision of these services to private companies should not be paid for from public funds, so the Commission should be able to charge for these services where appropriate.

4.35 The same organisation did not feel that the ability to provide additional services on a fee-paying basis would compromise the independence of the Commission. It cited the example of the Commission for Racial Equality, which currently provides advice to public and private bodies on how to implement their obligations under the Race Relations (Amendment) Act 1999, but can still investigate those bodies should transgressions occur.

4.36 Several responses noted that if there were sufficient arrangements for the accountability of the Commission in general (for example, in annual accounts and reporting), this should protect it from any risk to its reputation or credibility ensuing from charging for services. A few suggested that the nature of services for which it could charge should be laid down in legislation. Of the 16 consultees who offered comments on the effect charging might have, several were concerned about potential conflicts of interest or compromises to the Commission's integrity and impact on priorities:

4.37 Clearly, a number felt strongly that this would be inappropriate, voicing concerns that it could detract from fulfilment of the Commission's public sector duties and negatively affect the public's perception of its independence. A couple of respondents argued that there would be a potential conflict were the Commission to charge for auditing or training provided to a body that it later had to investigate. A further two consultees suggested that potential conflict could be partly avoided if charging were limited to costs only. One local government consultee recommended that a ceiling be imposed on such activity, underlining that public work should make up most of the Commission's activity, while another council suggested the creation of a scale of variable charges for services provided to public sector, voluntary and private organisations.

4.38 Although it believed that charging should be permitted, the Equal Opportunities Commission, fearing that working with private bodies might detract from public sector work, suggested that:

The proposed budget for the Commission

4.39 A number of organisations took the opportunity in their answers to question C8 to raise concerns about the proposed annual budget of around 1 million. A variety of NGOs, an education representative and the STUC all doubted the sufficiency of the proposed funding. Several suggested an annual budget in the region of 3-4 million. The bases for these estimates included, for example, a possible staff-roll of up to 40 people, including specialists; the costs of accommodation especially if the Commission has city-centre premises; the size of the population and geography to be served; and the range of functions to be fulfilled. The budgetary problems experienced by the Northern Ireland Human Rights Commission were raised in several submissions. Their initial annual budget of 750k, for a smaller population and area, turned out to be inadequate, so its budget was revised to around 1.3 million per annum.

4.40 The Royal College of Physicians made the point that:

4.41 An education sector consultee warned that charging for services should not be allowed to engender a situation where the Government would increasingly expect the Commission to raise its own funds.

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