Analysis
Protecting our Rights. A Human Rights Commission for Scotland?

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Contents

Background
Responses
Does Scotland need a Human Rights Commission?
Is there a need for closer scrutiny of legislation, more guidance to Public Authorities or the public, or a specific awareness campaign on human rights issues?
Is there a strong case for a specifically Scottish body?
What roles should a new body have?
Are all the functions mentioned above complementary or are some of them mutually incompatible?
Should a new body be statutory and who should it be accountable to?
Would creating a new body require a re-examination of the remits of any existing organisations?
How many members should a new body have?
Is it essential that members of a human rights commission should have specific expertise in the field, or is it more important that they should be representative of different groups in Scottish society?
What, in principle, do you think the structure of any new body should be?
Consultation Document
Consultation Responses
Summary of The ‘Paris Principles’ — principles relating to the status of National Institutions

Background

The issue of establishing a Human Rights Commission for Scotland has been actively debated during the past two years. The Scottish Human Rights Forum was established in 1999, to campaign for a Human Rights Commission for Scotland. It had a wide membership across the public and voluntary sectors. The Forum presented a paper to Scottish Ministers in March 2000, which recommended the establishment of an independent Human Rights Commission in Scotland with wide ranging powers.

Since then a debate has taken place in the Scottish Parliament (on 2 March 2000) which indicated cross-party support for a Scottish Commission. A Cross-Party group in the Scottish Parliament on Human Rights was formed in June 2000, convened by Robert Brown MSP, which has also contributed to the debate.

The Deputy First Minister made a public commitment to consult on whether to establish a Human Rights Commission in a speech at the Human Rights Symposium in June 2000. The Deputy First Minister said that the Executive had made no decision on whether to establish a Human Rights Commission but would publish a consultation paper later in the year. The Deputy First Minister made a further announcement to the Justice and Home Affairs Committee meeting on 6 September 2000, that the Executive intended to consult on options for a Human Rights Commission for Scotland and this paper would be published at the end of 2000/early 2001. This commitment was also highlighted in Working Together for Scotland, which was published in January 2001.

The consultation was launched in March and lasted three months: http://www.scotland.gov.uk/consultations/justice/porhr-00.asp
The document was circulated widely as well as being made publicly available on the Scottish Executive website. The Deputy First Minister is currently considering the responses to the consultation and options for the way forward. An announcement is expected to be made around the end of the year.

Responses

We received 70 responses to the consultation exercise. Responses have been received from a wide range of interested parties including the Scottish Human Rights Forum, Northern Ireland Human Rights Commission, local authorities, equality organisations, human rights lawyers, academics, charities, lobby groups, professional organisations (such as Police and Sheriffs) and legal organisations. A small number of private individuals have also responded. The response from the Confederation of British Industry (Scotland) was the only reply from the business sector. The Scottish Liberal Democrats and the Scottish Socialist Party are the only political parties to have responded. However, a response was also received from the Cross Party Group for Human Rights.

Analysis of responses

This report offers some factual analysis of the responses to the consultation. The percentages shown are for the number of responses to each question (and not the total number of responses to the consultation). The full text of all the consultation responses also features on this site
http://www.scotland.gov.uk/about/jd/jd-bsu/00017838/hr_responses.aspx

Does Scotland need a Human Rights Commission?

Yes - 77.14% (54) ^{Total number of responses are in the brackets}
No - 8.57% (6)
Maybe - 11.43% (8)
Don’t Know - 2.86% (2)

Analysis

Reasons for yes answer

The majority of supporters of a Human Rights Commission perceived a general need for cultural change and felt that at the very least a new body should have a general advice and awareness raising function to address current misunderstandings about human rights in society. Many also felt that the Scottish Executive and Parliament should have access to a source of independent and impartial advice and that there was a gap in guidance available to public bodies which should be addressed.

The following examples are intended to give a flavour of the responses:-

Academics noted that a Commission was needed given the constitutional change following the formation of the Scottish Parliament. They felt for example that there was a clear role for a Commission as pre-enactment scrutiny of legislation can be variable.

The Institute of Public Policy Research (IPPR) argued that there was a need for a Human Rights Commission in Scotland as there are gaps in the roles of existing statutory organisations and a body is needed to promote awareness of a range of international human rights standards.

The three police organisations re-iterated their commitment to establishing a Human Rights culture. The Scottish Criminal Cases Review Commission stated a Commission would be a natural development in terms of a Freedom of Information regime and that the different system of law in Scotland requires it.

In general there was a mixed response from Local Authorities on whether to establish a Human Rights Commission and this was reflected in the Convention of Scottish Local Authorities (CoSLA)’s response. Local Authorities in favour of establishing a Human Rights Commission felt it would be beneficial to underpin the European Convention of Human Rights (ECHR) commitment. Establishing a Commission was viewed as a natural progression from Devolution and the Scotland Act. They also saw a clear role in terms of the need for guidance to public bodies. It was also pointed out that a Human Rights Commission would head off redress in the courts by resolving disputes earlier on.

Non-Profit Sector Bodies/Representative Rights Bodies presented a range of opinions. Some stated that a number of UK bodies have responsibility for some individuals but are restricted by their terms of reference and so felt there was a need for a purpose built organisation/comprehensive framework. The establishment of a Human Rights Commission was seen as following on from Devolution and the incorporation of the Human Rights Act and would help support the Scottish Parliament. Some bodies mentioned a need for a comprehensive coverage of all Human Rights Treaties.

In terms of MSP contribution, the Cross-Party group highlighted that a Commission would aid the scrutiny of legislation. The Scottish Liberal Democrats argued that a Commission is a necessary part of ECHR incorporation machinery. The Scottish Socialist Party stated that there is a need for widespread educational campaigns and training programmes to heighten Human Rights awareness in Scotland.

Reasons for no answer

Those opposed to the establishment of a Human Rights Commission in Scotland felt that existing bodies already covered the proposed duties. This included some local authorities, the Educational Institute of Scotland (EIS) and the Confederation of British Industry (Scotland). They felt that a new body would be unable to command sufficient authority; that there is already sufficient monitoring and pre-enactment scrutiny and that the courts should be left to interpret the Human Rights Act. The Confederation of British Industry (Scotland) stated that any new public body should pass a strict value for money test. EIS said that as human rights are in a state of flux we should wait for things to settle down before establishing a new body.

Reasons for maybe answer

Respondents who were unsure of the merit of a Human Rights Commission said defining its role would be crucial. This included some local authorities, the Faculty of Advocates and the

Scottish Committee of the Council on Tribunals. Some felt that the necessary checks on human rights were already in place or that if the remit is confined to ECHR then there is no need for a Commission as those responsibilities rest with public authorities.

1 Total number of responses are in the brackets.

Is there a need for closer scrutiny of legislation, more guidance to Public Authorities or the public, or a specific awareness campaign on human rights issues?

Yes - 82%
No - 4.29%
Maybe - 10%
Don’t know - 2%

Does this justify the creation of a new body?

Yes —75.56%
No — 8.89%
Maybe — 13.33%
Don’t Know — 2.22%

Analysis

The majority of respondents support the three key roles highlighted in the consultation paper and feel that a Human Rights Commission could serve these functions and that this could overall promote cultural change. Many respondents saw independent scrutiny of bills as a distinct advantage. It was also noted that there are no bodies currently providing formal advice to Public Authorities on Human Rights Act compliance.

Some, such as Edinburgh City Council, noted that there was potentially a conflict of interest if a new body was to offer advice to both Public Authorities and the public.

The respondents who answered ‘maybe’ to the above question were Christian Action Research, the Scottish Committee of the Council on Tribunals and some local authorities.. They were unsure what a new body would add to the current situation.

Some Local Authorities answered no to this question. They argued that the current procedure of pre-legislative scrutiny (consultation with legal staff in the Scottish Executive and other public authorities in Scotland) should ensure compatibility with the Human Rights Act.

Is there a strong case for a specifically Scottish body?

Yes — 86%
No — 4%
Maybe — 10%

Analysis

The following reasons were given in favour of establishing a specifically Scottish body:-

• The ECHR may be interpreted differently by Scottish Courts;
• Particular power of the Scottish Courts to strike down legislation which is incompatible;
• Scotland has its own Parliament, legal system, penal system and education system;
• A Commission could help the Parliament and Executive to discharge their duties under the Scotland Act;
• It would be necessary in order to advise the Scottish Parliament who are dealing with a large volume of legislation. It is argued that a UK body could not give the same amount of attention to these issues;
• It could work in partnerships with other bodies to offer advice to both Westminster and Holyrood;
• Scottish law is beginning to develop quite differently;
• There is likely to be greater commitment to a Human Rights Commission in society if specifically Scottish;
• It would support Scotland’s role in implementing international obligations;
• Those public authorities which are perhaps particularly vulnerable to accusations of abuses of human rights are all devolved bodies and fall within the remit of the Scottish Parliament.

All of those who answered ‘yes’ to a Commission also answered ‘yes’ to the establishment of a specifically Scottish body. The points above illustrate the range of issues raised in support of a Scottish body. Generally it was felt that a Scottish body would be better placed to take a particularly Scottish approach, with knowledge of Scots law. In addition, a Scottish body would be more likely to have direct influence here. A Scottish Commission is generally seen as being more beneficial than a UK Human Rights Commission, although some supporters also see the benefits of establishing a UK Commission. Some respondents felt that a Scottish Commission could be answerable to a UK Commission on reserved matters.

Those against a specifically Scottish body said that the case for a separate Human Rights Commission in Scotland has yet to be established. Any decision to establish such a body should be made on a clearly defined need. They argued that it must be established whether the proposed functions for a Human Rights Commission could be addressed within existing arrangements.

What roles should a new body have?
Which of these is most effective in your view?

There was a range of opinion on the roles a Human Rights Commission could have. The range of roles mentioned by respondents are outlined below: -

Scrutiny Role

• Legislative scrutiny role for Acts of the Scottish Parliament
• This could extend to Westminster on appropriate reserved issues
• An audit of any proposed bill
• Review existing law for incompatibilities

Guidance to Public Authorities

• To comply with human rights standards
• To implement good practice

Promoting Human Rights Culture

• Awareness and understanding
• Educational role
• Conduct research

Monitoring Role

• General monitoring and investigation
• Conduct public inquiries on own initiative
• Submissions to the UK Government in relation to international reports under treaty obligations
• Be able to obtain access to documents and people

Develop policy on human rights

• Power to make proposals for legislative change

Intervene in Legal Proceedings

• Ability to act as Amicus Curiae (or friend of the court)
• Apply to intervene in court cases

Conduct alternative means of dispute resolution

• Run a conciliation service

Test cases

• Assisting individuals to bring cases
• Bringing cases on behalf of individuals
• Bringing cases in its own name.

Analysis

There is fairly widespread agreement amongst supporters that a Commission could conduct pre-legislative scrutiny, provide guidance to public authorities and conduct promotion, education and awareness raising. There was a range of opinion on other functions and roles for a Commission.

Opinion on the most effective role for a Human Rights Commission for Scotland varied according to respondent type and function e.g. Local Authorities do not favour a complaints role, those with a legal (or parliamentary) background emphasise the scrutiny role and rights organisations wish to see a body with the widest remit. Many of the answers have been influenced by UN Paris Principles guidance on the structure of national organisations (link). Some points are highlighted below: -

• IPPR felt that taking a test case forward is the most effective role for a Human Rights Commission. Without this power, the roles of a Commission would be weakened. However, the principle objective of a Commission should be to promote awareness and respect for Human Rights Standards.
• Stonewall Scotland felt that a Commission needs powers of censure. They felt that a purely advice based Human Rights Commission would be less effective.
• The Scottish Criminal Cases Review Commission wanted to ensure compliance with legislation and an effective response by the Scottish Executive and Scottish Parliament.
• The Royal Society of Scotland would like to avoid a situation where a Commission investigates individual cases.
• Aberdeen City Council, who are opposed to a Human Rights Commission, say it is difficult to predict whether reporting any identified breaches to the Parliament would be an effective sanction.
• The Northern Ireland Human Rights Commission feel casework has the greatest potential for producing change. They point out that their recommendations to Government (either in London or Belfast) have not been taken up.
• Renfrewshire Council say the ideal role of a Commission would be to assist with the resolution of disputes without parties requiring litigation.

Are all the functions mentioned above complementary, or are some of them mutually incompatible?

Analysis

100% of respondents who answered this question felt that the roles highlighted in this document were compatible. Again the detail of answers varied according to what respondents felt the key roles of a Commission were likely to be :-

• IPPR — Some Commissions have the responsibility to investigate and adjudicate complaints. A Scottish Commission should be able to hold an inquiry (investigation) and broadcast the outcomes of recommendations to the Executive, Parliament or Authorities but should not focus on individual complaints.

• Equal Opportunities Commission (EOC) — felt it was important that a Commission should have enforcement powers and be able to take cases forward in its own name.

• Scottish Police Federation — felt there would be a danger of incompatibility of powers if the function of scrutiny of legislation were too closely linked to the role of investigation of possible breaches.

• Edinburgh City Council — felt that a Commission should provide guidance to public authorities but that no enforcement powers were required.

Respondents were divided on what sort of action a Commission should be in a position to take in response to suspected abuse. Whilst a range of bodies supported an investigative role, a number (including some local authorities and the Scottish Police Federation) were against a Commission handling individual complaints. They felt that if a Commission with the power to advise and offer guidance to public authorities also had the power to handle individual complaints this would lead to tension and conflicts of interest. This type of body was also seen to be less independent.

Should a new body be statutory and who should it be accountable to?

Statutory — 100% of respondents who answered this question.

Analysis

The respondents who answered this question felt it was necessary for a new body to be statutory as this would give it the powers and status to bring about change. It was widely argued that a statutory body was preferable as this would give it a degree of permanence, enable the Commission to have greater influence and allow Parliamentary scrutiny. It would also ensure proper accountability. Furthermore, the body should be statutory to be independent of government. Some respondents said that a body without statutory force would be unlikely to command the full benefits that a Commission based on the Paris Principles would bring.

Who should a body be accountable to?

Scottish Parliament — 91.49%
UK Parliament — 2.13%
Other — 6.38%

Analysis

The majority of respondents felt that a Human Rights Commission should be answerable to the Scottish Parliament but could be scrutinised by the Executive. Many respondents stated that they felt it was inappropriate for a Commission to be answerable to the Scottish Executive. Stonewall Scotland, CARE and the Northern Ireland Human Rights Commission said that it would be more appropriate for a Commission to be answerable to a UK Government on reserved matters. Kay Springham, the Scottish Human Rights Forum and the Scottish Human Rights Centre all suggested that the Commission could give evidence through the committee structure in the Parliament.

Would creating a new body require a re-examination of the remits of any existing organisations?

Yes — 28.94%
No — 23.68%
Maybe — 47.36%

Analysis

Most respondents feel that the establishment of a Human Rights Commission need not encroach on existing statutory organisations. It would have a different remit than other equalities organisations. However, it would be important to clarify the roles, remits and aims of bodies that would work together to further ensure that there would not be a conflict of interest. Overall it is felt that equalities bodies would need to work closely together. Crucial to the effectiveness of a Human Rights Commission is an open relationship with other organisations. Some respondents suggested that a memorandum of understanding could be drawn up between organisations. The Northern Ireland Human Rights Commission is in the process of undertaking a similar exercise.

Some particular points made were:-

• Faculty of Advocates — need to ensure there is no significant overlap between UK specialist anti-discrimination codes and convention rights. The body should have a broad mandate for rights generally;
• EOC — need to ensure comprehensive coverage of issues when responding to allegations from individuals of human rights violations — suggested extending the Human Rights Act to all equalities organisations;
• IPPR - all Equalities Commissions could in the longer term be brought together in one Commission;
• City of Edinburgh Council — a Scottish body would have difficulties working with existing UK bodies since they have jurisdiction on a UK wide basis;
• CoSLA — the body should have close links with other Commissions, the Regulation of Investigatory Powers Act and the Freedom of Information Act;
• CoSLA — the Australian and Canadian Human Rights Commissions have responsibility for equal and disability rights and have developed close relationships with existing forums.

How many members should a new body have?

Under 5 — 5.26%
6-10 — 52.63%
11 and over —42.11%

Analysis

The EOC state that the number of Commission members should be determined by the structure, roles and function of a Commission. They suggest that since there are existing models of Human Rights Commissions, structure could be drawn from them. The Royal Society recommends that membership is not too large as this would make it difficult for a Commission to meet regularly. Some respondents cite the Northern Ireland Human Rights Commission and recommend a mix of full and part-time staff. Others mention the importance of a small permanent secretariat staff in a headquarters. Many respondents point to the Paris Principles for guidance on membership

How, in your view, should appointments be made and by whom?

Human Rights Committee at the Scottish Parliament — 40.74%
Other — 40.74%
Small Group of MSPs — 18.52%

Analysis

The majority of respondents recommend that the Scottish Parliament should make the appointments. This could either be in the form of a Human Rights Committee or a small group of MSPs with cross party membership. The Scottish Ethnic Minorities Research Unit, COSLA, Angus Council, Scottish Human Rights Forum, IPPR, Scottish Human Rights Centre and EOC all recommend that appointments are made by a public appointments board. IPPR state that independence is important to ensure that appointments are merited and not swayed by Executive caution or party political considerations. South Lanarkshire Council suggest that Scottish Ministers should be in charge of appointing commissioners.

In terms of principles for appointing, the Nolan Principles are cited by the Disability Rights Agenda for the People of Scotland, Disability Rights Commission and the Scottish Consumer Council.

Is it essential that members of a Human Rights Commission should have specific expertise in the field, or is it more important that they should be representative of different groups in Scottish society?

Members of the Public — 5%
Human Rights Law experience - 0
Mixture of both — 85%
Other — 10%

Analysis

The majority of respondents felt that the membership of a Commission should reflect gender balance, represent Scottish society and have proper geographic representation. An understanding of human rights by members would also be important to give a body credibility. Stonewall Scotland says that diverse expertise and experience is necessary for members. However, if the membership is too large a Commission could become too unwieldy or bureaucratic. Some state that it is important to represent excluded parts of Scotland. Angus Council suggests that in order to represent different groups in society a 50/50 split is needed between Local Authorities and interest groups.

What, in principle, do you think the structure of any new body should be?

Few respondents answered this question in any detail or with much focus. A range of responses is detailed below: -

• A Commission would require adequate resources and support staff;
• A Commission would need a legal framework;
• A Commission should have a single headquarters in the central belt but could travel around (permanent office);
• A Commission should have an advisory board;
• A Commission should be representative of society;
• A Commission should be independent of Government yet accountable;
• Need to look to the possibility of how a UK Commission would work with a Scottish Commission;
• Need to have community representation. This could be rotated to ensure as many members of the community are represented as possible;
• Membership should be comprised of people with specific expertise in the field of human rights, lay persons and representatives of voluntary organisations and public authorities;
• The mandate of a new body should be wider than the Convention rights.

Summary of The ‘Paris Principles’ — principles relating to the status of National Institutions

General Assembly Resolution 48/134, agreed in 1991

These cover four main areas

A. Competence and responsibilities
B. Composition and guarantees of independence and pluralism
C. Methods of Operation
D. Additional Principles concerning the status of commissions with quasi-jurisdictional competence

Brief description of main areas

A. Competence and responsibilities
1. A national institution shall protect and promote human rights.
2. A national institution shall be given as broad a mandate as possible.
3. A national institution shall, have the following responsibilities:

To advise government, parliament or other bodies on Human Rights public opinions and relate to legal, administrative and judicial organisations to protect Human Rights.

(ii) Any situation of violation of human rights
(iii) Reports on the national situation on human rights
(iv) Drawing the government’s attention to Human Rights violations and making proposals on the positions and reactions of the governments;

b) To ensure compliance with International Human Rights instruments
c) To encourage ratification of the International instruments
d) To contribute to the reports for the United Nations on their State’s position on Human Rights issues.
e) To co-operate with the United Nations in the areas of the protection and promotion of human rights;
f) Teaching and research into human rights in schools and universities
g) Increase public awareness of Human Rights through information, education and the media.

B. Composition and guarantees of independence and pluralism
1. The plurality of society should be reflected in the membership of the organisation.
2. Have adequate funding to conduct activities and be independent of government.
3. The appointment of members should be in an official act to ensure a stable mandate.

C. Methods of Operation

Within the framework of its operation, the national institution shall:
1. Consider any questions falling within its competence, whether from government or a higher authority, on the proposal of its members or of any petitioner
2. Hear any person and obtain any information and any documents necessary for assessing situations
3. Address public opinion directly to publicise its opinions and recommendations;
4. Meet on a regular basis with all members
5. Set up local or regional sections to assist in its functions
6. Consult with other bodies responsible for the protection and promotion of human rights
7. Develop relations with non-governmental organisations devoted to protecting and promoting human rights

D. Additional Principles concerning the status of commissions with quasi-jurisdictional competence

A national institution may be authorised to hear and consider complaints and petitions concerning individual situations. Individuals or any other representative organisations may bring cases before it. The functions entrusted to them may be based on the following principles:
1. Seeking an amicable settlement within the limits prescribed by the law
2. Informing the party of the available remedies and promoting access to them
3. Hearing any complaints or petitions
4. Making recommendations to authorities, such as, law reform and amendments.