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The Scottish Human Rights Commission: Analysis of Consultation Responses
CHAPTER FIVE OTHER THEMES IN THE RESPONSES
5.1 Certain salient themes that did not relate to specific questions in the consultation document recurred so widely and frequently in the responses that they warrant inclusion in this report. This chapter highlights some of the main topics about which consultees voiced concerns.
THE DEVOLVED REMIT
5.2 Many consultees used the questions discussed in Chapter 2 as an opportunity to present opinions on the devolved remit of the Commission. Twenty consultees, across the entire range of respondent types, expressed a view that the remit of the Commission should extend beyond devolved matters. A recurrent concern was that a remit to deal only with devolved issues, unless called upon by the UK Parliament or Ministers, would adversely affect the status and power of the Commission, and would hamper attempts to nurture a human rights culture in Scotland. One educational body observed:
"Put crudely, the Commission would be a Scotland Act Human Rights Commission, rather than a Human Rights Commission for Scotland."
5.3 It was repeatedly observed that reserved areas, such as immigration, asylum, race equality, gender equality, disability discrimination, industrial relations, and electoral law, do relate to the Scottish Parliament and can impact significantly on the rights of people living in Scotland. To restrict the Commission to commenting on devolved issues would prevent it from addressing major pieces of Westminster legislation that affect Scotland, and legislation on devolved issues passed to Westminster following a Sewel motion, with the risk that human rights breaches could go unchecked.
5.4 Concerns were also raised about grey areas where legislation does not make clear whether the matter is reserved or devolved and where responsibilities overlap. One charity provided an example of where this could create difficulties for the Commission:
"It is vital that the commission can comment on non-devolved areas of policy especially in relation to benefits. In the case of older people there is clear interaction between UK benefits and payment for care services that are the responsibility of the Scottish Parliament and devolved public bodies."
5.5 Several consultees were additionally concerned that the proposed single equalities body for Great Britain might have no, or an insufficient, role in Scotland, which would mean that important elements of public service delivery in Scotland could fall outside the remit of either institution.
5.6 An education sector consultee, who highlighted this issue, suggested a remit that would distinguish between the Commission's different roles in relation to devolved and reserved matters, permitting it to address both but in different ways:
"A Commission which is not able to respond to perceived violations of human rights occurring in Scotland but which happen to be the responsibility of public authorities exercising reserved powers would readily be seen as an irrelevance. […] The solution to the real constitutional concern is probably a straightforward one: the Commission should have no express power to advise the Scottish Parliament on matters falling outwith its competencies. However, in relation to its other functions… it ought to have the authority to initiate or take part in public debate affecting the enjoyment of human rights in Scotland."
5.7 Many of the comments were based on the point that the Scotland Act places obligations on the Scottish Executive and Parliament to comply with ECHR and all other international treaties to which the UK is party. Some respondents argued that a remit based on devolved matters would not be able to reflect this. It was also pointed out that the Scottish Parliament is free to debate reserved matters, as can any public or private body:
"The limitation in the Scotland Act is that the Westminster parliament is the only body which can act upon those issues. On this basis, whether the Scottish Parliament legislates or not to 'allow' the Human Rights Commission to deal with reserved issues, it would still be feasible for the Commission to do so. However, for the sake of clarity it would be beneficial for it to be specified in statute that the Commission is tasked with monitoring all human rights issues in Scotland and highlighting any problems to the relevant authority. Whilst with regard to reserved issues, the Commission… should not be obliged to use the Scottish Parliament as a conduit for reporting to Westminster. Rather, it should be free to contact ministers and departments as appropriate." (non-profit body)
5.8 The Faculty of Advocates also did not perceive that there was an issue in the Scottish Parliament creating a body that could address non-devolved issues as part of its remit:
"Neither Section 29 nor Section 54 of the Scotland Act preclude the Scottish Parliament from setting up a body such as the SHRC with a remit to assist in the implementation and observation in Scotland of fundamental rights without distinguishing between international obligations, reserved and devolved matters. It follows that the SHRC must have the flexibility to establish a relationship with UK Departments responsible for international and reserved aspects of fundamental rights."
THE COMMISSION AND THE PRIVATE SECTOR
5.9 At different points in their responses, some consultees made the point that training should not just be offered to public authorities but to trade unions; to private contractors, as they increasingly provide public services; and to 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.
PARLIAMENTARY SCRUTINY OF LEGISLATION
5.10 A small number of consultees were not content with the assertion upon which questions discussed in Chapter 3 were based, namely that satisfactory procedures already exist for scrutiny of legislation. Although the Law Society of Scotland agreed with the legislative monitoring role proposed for the Commission, it warned that,
"the proper scrutiny of legislation with regard to human rights compliance is an area which will require careful consideration by the Parliament. The Society considers that the mechanism to do so is not yet in place."
5.11 Another consultee, unhappy with proposals concerning relations between the Commission and the Parliament, also did not agree with the consultation document's assertion that existing mechanisms for legislative scrutiny are already sufficient. It felt that MSPs lacked the necessary human rights expertise to ensure that legislation is human rights compliant, and that this was an argument for the Commission engaging in the legislative process as early as possible.
RELATIONS WITH OTHER BODIES
5.12 Several consultees underlined how important would be relations with the proposed single equalities and human rights body for Great Britain. The Equal Opportunities Commission, for instance, emphasised the need for clarity over how the remit of that body and of the Commission would interrelate with one another, suggesting that legislation might have to address any potential areas of overlap.
POWER TO TAKE CASES
5.13 Various consultees expressed an opinion that the Commission should be endowed with the power to take test cases in its own name, insisting that this capacity would be critical if the body were to have the necessary status to fulfil its role in supporting the development of a human rights culture in Scotland.
5.14 A submission from an educational body suggested three reasons why the Commission should have the capacity to take test cases in its own name or financially support litigants in bringing cases before the courts:
"First, some element of casework would be of assistance in helping the Commission develop awareness of practices by public authorities and of concerns of individuals. In other words, this could help establish a crucial means of communication with the public, and a vital source of information. Second, the power to take a case to the courts or to support a litigant would help establish public awareness and support for the Commission. Third, there may be not other practical way to address an issue of importance. Where the Commission has carried out a report but the body investigated has failed to provide a satisfactory written response within a set time scale, the Commission may feel that bringing the matter before the courts is the only appropriate manner to proceed."
5.15 The Equal Opportunities Commission drew on its own experiences of the differing degrees of effectiveness of powers to investigate and the freedom to take cases in its own name in arguing for the Commission to have the latter:
"The EOC has been able, over the years, on a relatively limited legal budget, to identify key cases to support which have advanced equality for a great many women and men and which have been used by the commission to highlight to employers and service providers the consequences of ignoring the legislation. In contrast, the investigative route, which is procedurally cumbersome, and time and resource intensive, has not presented the best approach for the EOC seeking to change practice and prevent future breaches."
5.16 It discussed its concerns about this issue at some length:
"One alternative to supporting individual cases which is not considered, is to give the Commission power to take cases in its own name. That of course may require a change to the Human Rights Act because section 7 in particular states that anyone pursuing a breach requires to be a victim. This would not however preclude an organization like the Commission from funding individual cases which were pursued in the name of the individual (as the EOC does in the vast majority of the cases which it supports - only a very narrow range of cases can be taken in the EOC's own name)."
5.17 The fact that access to justice is limited in terms of whether an individual qualifies for legal aid was raised by a number of consultees in arguments to urge for the Commission to take cases:
"While it is true that the legal structure in Scotland provides for support to individual cases these services are not free. The potential precedent-setting nature of a case is often less important than the plaintiff's ability to pay. Legal aid is indeed available but there is nothing to say that those with potentially key human rights cases would be able to access legal aid more readily than those with other worthwhile and important cases."
Several other respondents (from across the range of consultees, including police, local government, the STUC, and non-profit/charities sector representatives) also promoted an opinion that the Commission should be able to take cases.
5.18 The Faculty of Advocates also argued for the value and support this approach would offer to the development of case law and understanding of legislation:
"The Faculty submits that any Commission should have power to assist individuals to take legal action in test cases where other funding is not reasonably available. The statutory UK sex and race Equalities Commissions are empowered to assist individuals in appropriate cases and, arguing from the example of these powers (which are sparingly used in the most important cases) it would be appropriate for the Commission to have the ability to assist individuals to take legal action.
"… The Faculty is of the view that, if, as a matter of policy, it is desired to develop a progressive and inclusive rights culture, there is a case for giving the Commission a residual power to litigate in exceptional cases, for the following reasons. It may be acknowledged that Scotland does not have a well-developed public law tradition, much less an established culture of human rights law. The number of specialist human rights practitioners is limited. To date 85% or more of human rights cases have involved Article 6 procedural challenges in criminal proceedings. In a small jurisdiction like Scotland the limited throughput of litigation means that developments in the substantive law could be fitful and protracted were they to depend solely on complaints brought by individuals. There is precedent elsewhere for conferring the power to litigate. A power to litigate would require to be in express terms to meet any difficulty caused by existing rules of title and interest to sue."
5.19 The Equal Opportunities Commission summarised many of the arguments to support the Commission having the power to take cases, drawing parallels with circumstances in England, where there are bodies which have the resources to support test cases, such as Liberty and Justice.
5.20 The EOC continued by re-iterating the arguments for increasing the scope of the Commission's ability to intervene in court proceedings:
"often the difficulty in [civil] cases of this sort is that the best arguments have not been put forward at the first instance, and appeals thereafter are restricted to the issues which have been raised in the lower courts. It would not seem sensible therefore to restrict the circumstances when the Commission should intervene to the appeal stage. Experience suggests that the courts would use this power sparingly if at all. There is little tradition in Scotland of interest group intervention, and indeed no tradition at all of interest groups taking judicial reviews.
"Further, the courts themselves will not necessarily know when it might be appropriate to have the position of the Commission presented to them, and therefore interventions ought not to be restricted to situations where the Commission has been invited in only. Further, in civil cases the costs of pursing an appeal are significant, and the cases will have been decided at first instance for individuals where legal aid availability is limited and the Commission would not be able to fund the individual or to intervene. Given the fact that the Commission will not be able to support individual cases, and the individuals may not be able to afford to appeal, civil cases may not get to the appeal stage, and the decision at first instance will have been decided without the benefit of the intervention of the Commission.
"The EOC is of the view that the Commission should have the power to intervene on its own initiative in any case, whether civil or criminal, and at any level."
5.21 Another non-profit organisation that campaigns for human rights gave details of why it believed the Commission should be able to support the development of case law which would assist the courts in interpretation of law:
"The ability to support cases would ensure that those who fall between the cracks in our legal aid system would still be able to raise cases. This would ensure that bad practice and breaches of rights would not be permitted to go unchallenged due to lack of finances on behalf of the victim or lack of locus standi, which can often prevent important issues being dealt with in a preventative manner."
5.22 Not having the ability to take test cases or cases in its name on behalf of a victim was clearly one area of the proposals for a Scottish Human Rights Commission where consultees felt there should be further discussion.
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