Issue 39 November 2007 - Challenges and Opportunities facing the EHRC in Scotland: the Human Rights Dimension
The Equality and Human Rights Commission ("the Commission") opened its doors for business on October 1, 2007, becoming Britain's first national body tasked with promoting and protecting human rights, and one of the largest full spectrum equalities and human rights organisations of its kind in the world.
In this article I wish to highlight the overarching challenges, opportunities and goals regarding its human rights work in Britain before considering the particular devolution issues associated with its human rights remit in Scotland and how they could influence and benefit the relationship between the Commission and the Scottish Commission for Human Rights ("SCHR").
Creating a human rights culture in Britain
Speaking of the challenges and opportunities facing the Commission in June this year at the UK Human Rights Lawyers Association, our Chair, Trevor Phillips, said:
"We have a once in a lifetime opportunity to transform the legal basis for Equality and Human Rights in our country from the restrictive, finger wagging bureaucratic monster much of our media derides to a truly liberating set of instruments and institutions that can help everyone in our society to realise their true potential as human beings."[i]
In relation to its human rights work, one of the greatest and most important challenges of the Commission will be to embed a culture of human rights throughout British society. This was the original vision behind the enactment of the
Human Rights Act ("HRA") in 1998, however it has in many ways failed to be realised, at least in part due to the absence of a human rights body in Great Britain to nurture the development of an understanding of human rights and their intrinsic value to everyone.
The HRA has come under sustained attack in recent years, and particularly in the last year, by some politicians and some sections of the tabloid press for, among other things, purportedly privileging individual rights over the wider interests of the community, including in relation to public safety issues.[ii] The Review of the Implementation of the
Human Rights Act, published by the Lord Chancellor in July 2006, recognised this. It found that the HRA had been widely misunderstood and at times misapplied, fuelled by a number of damaging myths about human rights which have taken root in the public imagination. It announced a "major push" for the provision of better and more consistent guidance and training on human rights within Westminster Government Departments and the revision and strengthening of generic guidance on human rights for public sector managers.[iii] The objective of these activities is to operationalise and embed the human rights framework at all levels of public service delivery so that better decisions are made at the outset, thus reducing litigation and misapplication and contributing to the culture of respect for human rights which the HRA was intended to promote.
The Commission has an important leadership role in promoting such an approach in relation to public authorities, underscored by its human rights duties under the Equality Act 2006 to encourage good practice in relation to human rights and to encourage public authorities to comply with their obligations under the HRA.
The Commission also has an important role in challenging and rebutting myths, distortions and exaggerations about human rights that if left unchallenged, become rooted in the mind of the general public and have the potential to damage the work of the Commission. This role is underscored by its human rights duties under the Equality Act 2006 to promote awareness, understanding and protection of human rights, and also to promote understanding of the importance of human rights. The Commission has the opportunity to spearhead a new narrative that ties human rights firmly to equality and the social change agenda, so that the overarching values driving the new body can become rooted in the hearts and minds of the general public.
Both promoting the HRA and challenging myths about the HRA are clear areas of focus for the Government arising out of the Review of the Implementation of the Human Rights Act. This presents an opportunity for the Commission to work co-operatively and strategically with Government in these areas.
The relationship between the Commission and the Scottish Commission for Human Rights
In Scotland, broadly speaking, the Commission will have human rights duties and powers in relation only to reserved issues; devolved matters will be the responsibility of the SCHR.[iv] This represents a unique challenge for both bodies as to how they will ensure the work of the two organisations is cooperative and complementary rather than separate and divisive. It is expected that the Chair of the SCHR will be appointed in November 2007 when the dialogue between the two organisations can begin.
It is important to point out that there are a number of factors that could assist the building of a strong relationship between the Commission and the SCHR: the blurred line between what constitutes reserved and devolved matters, specific provisions under the Equality Act, differences in the powers of the two organisations, as well as international designations and institutional arrangements. Each of these is examined briefly below;
• The definition of reserved and devolved matters
As debate since the introduction of the Scotland Act 1998 has highlighted, the line between what constitutes reserved and devolved powers is far from clear. For example, although international relations including relations with the EU and international organisations are reserved matters, observing and implementing international obligations such as human rights obligations are devolved.[v] Another example is in relation to immigration. Although this is a reserved matter[vi] generally, including claiming asylum, issues relating to detention of persons in Scotland is a devolved matter and, as a result, the detention of asylum seekers would be a devolved matter.
The substantial overlap between reserved and devolved powers in many areas will in practice necessitate a close working relationship between the Commission and the SCHR to ensure coherence in human rights work in Scotland.
· The provisions under the Equality Act
Although s.7 of the Equality Act states that, generally, the Commission cannot act on any devolved human rights issue in Scotland, the Act provides that it may do so with the consent of any body established by Parliament for the protection of human rights, in other words the SCHR.[vii] In addition, the Act permits the Commission to act jointly or co-operate for a purpose relating to human rights in Scotland using its general powers to publish and disseminate information, undertake research, provide education and training or give advice or guidance.[viii]
The Equality Act provisions are important as they specifically allow for the two organisations to co-ordinate and co-operate in relation to any of their powers. To facilitate that co-operation, it is envisaged that a memorandum of understanding will be created between the organisations on working in Scotland to ensure best use of resources to achieve their respective strategic aims.
• The differences in powers of the Commission and the SCHR
Another factor that may actually aid co-operation is the fact that, although the respective powers of the Commission and the SCHR in relation to human rights are stated in similar terms, they are different in some important respects. In order to maximise the protection and promotion of human rights in Scotland, it would be beneficial to utilise the strengths of the different respective powers of the organisations.
In a number of respects the Commission has broader powers than those of the SCHR, e.g. the Commission has a new power to initiate judicial reviews in its own name, including on human rights issues, whereas the SCHR will have no such power.[ix] But if the SCHR provides its consent, the Commission will be able to use the judicial review power concerning a devolved matter and a claim of a breach of human rights.
In relation to inquiries, the powers of the Commission are also generally broader than those of the SCHR. The Commission has the power to conduct an inquiry into any of its human rights duties under the Equality Act, such as promoting understanding and the importance of human rights, encouraging good practice concerning human rights and encouraging public authorities to comply with the HRA.[x] This includes the power to conduct inquiries into particular public authorities or institutions. On the other hand, the power that the SCHR has to conduct inquiries is more restrictive as the inquiry must relate to several or particular public authorities, not human rights in general.[xi]
By contrast, the SCHR has a unique power concerning inquiries not available to the Commission in any respect-the power to enter, inspect and conduct interviews in places of detention for the purposes of an inquiry.[xii]The
SCHR is also given express powers to conduct inquiries into the particular international treaties such as the UN Convention against Torture and the European Convention against Torture.[xiii]
As a result of these differences in powers, co-operation will be to the strategic benefit of both organisations.
· Institutional Designations at international level
Another area in which cooperation will be possible is regarding the designation and acting as the National Human Rights Institution ("NHRI") for the purposes of the United Nations. These are independent national bodies that help realise human rights in each country by advising governments and parliaments on international human rights obligations and what further protection is required in the country. Currently in the United Kingdom there is one
NHRI, the Northern Ireland Human Rights Commission; but the Commission has commenced applying for recognition and the SCHR will, in all likelihood, also apply for such status when it commences operating.
Co-operation may be possible, e.g. in responding to Treaty monitoring processes and producing shadow reports on the UK governments performance on particular international treaties, given that as indicated above, observing and implementing international human rights obligations are devolved.[xiv]
· Institutional arrangements
The structure of the Commission also reflects devolution, as the Equality Act has designated the Scotland Committee as a specific Committee that is responsible for equality and human rights issues relating to Scotland.[1] The Committee will therefore be an important forum for discussing issues relating to human rights in Scotland.
The Scotland Committee has a role to advise the Commission about the exercise of its functions in so far as they affect Scotland[2] and, importantly, before the Commission exercises any function which in its opinion is likely to affect persons in Scotland, the Commission must consult the Scotland Committee.[3] It will have delegated powers relating to monitoring the law where it is law that affects only Scotland, and delegated powers relating to providing information and advice, undertaking research, providing education and training.[4] The Scotland Committee will therefore be a vital forum for discussing issues relating to human rights protection in Scotland, including any joint working arrangements with the SCHR.
Finally, it has been provisionally agreed that the SCHR will share the Glasgow premises of the head office of the Commission in Scotland.[5] This will also provide clear benefits in assisting joint working and public access to the functions of the two organisations.
The creation of the Commission represents a bold and ambitious project of improving protection from discrimination and respect for human rights across Great Britain. Devolution presents particular challenges and opportunities regarding human rights in Scotland. Much work will be needed to establish a close and effective relationship between the Commission and the SCHR. However, there are numerous legal, structural and practical mechanisms that are available to help that relationship and a human rights culture to blossom.
On March 29, 2007, Morag Alexander was announced as a commissioner for the Equality and Human Rights Commission. She has also been appointed Chair of the Scotland Committee.
Morag was appointed the first convener (chair) of the Scottish Social Services Council in 2001.She was also director of the Equal Opportunities Commission, Scotland from 1992 to 2001; chair of the Early Years Advisory Group of Children in Scotland from 1995 to 2003; and a trustee of Turning Point Scotland from 1998 to 2006.Morag is also a member of the Court of Scotland's Queen Margaret University, Commissioner and Chair of the Scotland Committee Equality and Human Rights Commission.
[1] Equality Act 2006, Schedule 1, Part 2 article 16(1).
[2] Equality Act 2006, Schedule 1 Part 2 article 19.
[3] Equality Act 2006, Schedule 1 Part 2 article 20.
[4] Equality Act 2006, Schedule 1 Part 2 article 21 and 22.
[5] The office is presently located at St. Stephens House, 279 Bath Street, Glasgow, G2 4JL, but will
soon move into its permanent home at The Optima Building, 58 Robertson Street, Glasgow G2 8DU.