The Royal Society of Edinburgh (RSE) is pleased to respond to the Scottish Executive consultation on the Scottish Human Rights Commission. The General Secretary, Professor Andrew Miller, and the Research Officer, Dr Marc Rands have compiled this response, with the assistance of a number of Fellows with expertise in this area.
The RSE believes that overall, the Executive’s preferred approach is sensible and deserves support. However, in setting up a Commission of this type a great many technical questions and questions of detail have to be resolved. Understandably, the Consultation Paper does not go into such questions. Since the Consultation Paper was issued, the Commissioner for Children and Young People & Schools (Scotland) Act has been passed. The main function of that Commissioner is protection and promotion of human rights so far as children are concerned. That Act, the most recent to be passed by the Scottish Parliament in this area, provides an appropriate model for the proposed new legislation on a Human Rights Commissioner for Scotland with, of course, any necessary adaptations for policy reasons.
There is, however, one respect in which the new legislation might usefully depart from the Commissioner for Children and Young People & Schools (Scotland) Act. Consideration should be given to making the new Commission a corporate body with a separate legal personality which would continue notwithstanding changes in the composition of the Commission. That would make the handling of issues relating to contracts and property, and other legal matters, very much easier. This is a point which has often been overlooked in establishing similar bodies in Scotland.
The specific issues identified in the consultation paper are addressed below:
The Remit of the Commission
Is it appropriate for the Commission to have the flexibility to establish an informal relationship with UK Departments?
Rather than permitting the Scottish body to make ‘informal’ links with UK Departments, the Commission should be expected to do so. Human Rights are universal even if there are powers specifically devolved to the Scottish Parliament, and there may be much to be gained (both in Scotland and Westminster) from an expectation of discussion and discourse.
Should the Commission's remit in relation to each of its key functions extend to the full range of international human rights instruments? This means that promotional, guidance, monitoring and investigatory activities could be carried out in relation to the range of instruments to which the UK is party.
It would be unnecessarily restrictive to confine the role of a Human Rights Commission to only one human rights treaty. If the Commission were only to be concerned with enforceable rights, then the European Court of Human Rights (ECHR) would be the only instrument worthy of consideration, but it must surely be the case that its remit is about reflecting all human rights standards to which we have signed up, and these extend well beyond the articles of the ECHR.
Should children be retained within the remit of the Commission provided workable practical arrangements could be established with the proposed Commissioner for Children and Young People & Schools? Should this be reflected in legislation?
Depending on the role perceived for the Commissioner for Children and Young People & Schools, it would seem sensible that human rights issues affecting children and young people should be dealt with by the Human Rights Commission.
The Functions of the Commission
Should the Commission be able to commission or offer financial support for promotion, education and awareness-raising activities where appropriate?
The employment of additional staff is unlikely to meet the demands of the totality of human rights, unless staffing can be unlimited. Although a core staff of sufficient numbers/expertise is essential, the Commission should have a significant capacity, and budget, to commission research and support appropriate human rights activities. In particular this is important because the Commission should complement rather than stifle work currently being undertaken.
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?
The remit should cover all human rights instruments, with particular emphasis on ECHR. In our response to the consultation "Protecting our Rights: A Human Rights Commission for Scotland" in 2001 we noted: "It will be important, therefore, that public authorities are given ready access to intelligible advice and are kept up to date on the developing jurisprudence of human rights so that the obligations, their implications and their rationale can come to be seen as justified obligations, not merely as unwelcome burdens." However, it will be up to individual public authorities to ensure that they comply with the requirements of the Human Rights Act so that the Commission is able to act impartially with a subsequent complaint against a public authority from a member of the public.
Do you agree that we should not ask the Scottish Parliament to consider establishing a separate Human Rights Committee?
The RSE agrees that there is no need to establish a Human Rights Committee within parliament, at least initially, but this should be kept under review as awareness of human rights grows, such a committee might be able to work efficiently and closely with the Commission.
Do you agree that the Commission should monitor legislation introduced as part of its own administrative procedures?
As the RSE noted in its response to the consultation "Protecting our Rights: A Human Rights Commission for Scotland" in 2001: "the existing procedures for pre-enactment scrutiny are necessary and valuable. However, those who carry it out are, for the most part, themselves involved in the very processes of government that are liable to become the target of human rights criticism. It is highly desirable, not least to comply with the Paris principles, that the Scottish Parliament and Executive should have independent and impartial advice on the human rights aspects of legislative and other proposals from an independent and impartial Commission whose purpose is to focus on human rights issues."
Therefore, the RSE believes there should be a requirement for the Scottish Parliament to refer legislation to the Commission. The aim of the Commission would not to be in conflict with the Parliament but rather to encourage the passing of human rights compatible legislation. Rather than the administrative burden associated with monitoring legislation falling on the Commission, it would presumably be a relatively simple process for the Parliament to make automatic referral. In this way, advice can be fed in (within the Parliamentary timetable). Thereafter, as the Bill progresses through its various stages, the Commission should be in a position both to offer additional comment and to be approached for expert advice.
Do you agree that the Commission should not act on the direction of the Scottish Parliament?
The Commission should certainly not be obliged to monitor issues at the request of the Parliament, but it should be expected to give sound and rational reasons for failing to do so.
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?
The Commission should be both reactive and proactive. That is, it should certainly respond to requests to act in an advisory capacity, but it must also be able to generate its own agenda based on its own experience/approaches to it by concerned groups or individuals. In this context, there is no reason why MSPs, like anyone else, should not be able to seek advice from the Commission.
Do you agree that the Commission should not be subject to direction from the Scottish Executive or Scottish Parliament in carrying out this function?
It is fundamental that the Commission is a body which is independent of the Scottish Parliament and Executive. This is important if it is to monitor Scotland's compliance with international instruments.
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?
The Commission should be able to decide its own priorities, and have no special advisory policy role.
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?
No. The Scottish Ministers and the Commission should keep at arms length and should not develop a close working relationship. The independence of the Commission is crucial, and might be prejudiced if a close working relationship with Scottish Ministers was established. The Scottish Ministers should take account of any advice, but that does not mean that they must accept and follow the advice and should be expected publicly to defend their failure so to do.
Do you agree that the Commission should have access to information powers based on the powers given to the Scottish Public Services Ombudsman?
The Commission will require powers to require disclosure of information, and these should be clearly specified in statute, and include the power to seek resolution of any dispute through the courts.
Do you agree that the Commission should not have enforcement powers?
The Human Rights Commission should not have direct enforcement powers. Enforcement of breaches of human rights is the function of the courts.
Do you agree that, as an alternative to enforcement powers:
* The Commission should publish a report following each investigation
* Bodies investigated should offer a written response within a stipulated time limit
* Investigations may be conducted in public or private?
Yes. It should be the norm rather than the exception that the Commission’s inquiries are conducted in public. Special provision should be made in statute for those cases which might be exceptions to the rule, but it will not enhance a culture of openness if important issues of this sort are usually conducted behind closed doors.
The outcome of every inquiry should be the publication of a report, incorporating where appropriate the responses of the investigated bodies, which 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.
Do you agree that the Commission should be able to assist the court in Scotland?
The Commission should be able to assist the court in Scotland, but only if called upon by the court to do so. We agree that this would be out of place in a criminal trial for the reasons stated in the consultation paper. While recognising the strength of the arguments for confining this in civil cases to the appellate stage, it is not desirable for an appellate court to be considering issues which were not dealt with before the judge or tribunal of first instance, and it would be preferable for the Court of Session at any stage to have power to invite the Commission to intervene. This would mean that at the appellate stage or at an earlier stage in the course of judicial review or in any other court process, the court could invite the Commission to intervene. Thus, there could be a role in the criminal justice system also, which should not be precluded by statute.
The Structure of the Commission
Do you agree that the Commission should be accountable to the Scottish Parliament?
The Commission should be accountable to the Scottish Parliament for the reasons set forth in the consultation paper, as is the case, for example, with the Scottish Criminal Cases review Commission.
Do you have any views on how the Commission could best be made accountable to the public?
As mentioned above, public accountability is enhanced by the routine holding of hearings/investigations in public whenever possible, by its involvement in the courts and as advisor to a Parliament which is required to justify failing to act in accordance with the Commission’s considered views. Accountability is only in part achieved by structure – it is also achieved by perception, and this requires transparency of operation and the belief that the conclusions of this independent body will be treated seriously. Thus, the Commission must also be accessible to the public, even if it does not take individual cases. However, I believe that there is a potential role for the Commission to make preliminary investigations on behalf of those who are otherwise unable to obtain legal advice and assistance. The alternative is to substantially boost the budget of the Legal Aid Scheme, and alter the categories of funding it can provide.
Do you agree that representation of Scottish society should be a factor to be considered in making Commissioner and staff appointments?
As the RSE noted in its response to the consultation "Protecting our Rights: A Human Rights Commission for Scotland" in 2001: "While it will be important that the Commission be, broadly speaking, representative of aspects (rather than groups) of Scottish life, it is more important to ensure that the Commission works efficiently than to provide for direct representation of different or special interest groups, all of whom could not in any event be included."
Do you agree with our approach that a small number of full-time Commissioners, perhaps 3 or 4, would be preferable to other options?
The Chief Commissioner and perhaps 3 others should be full-time appointments, with the possibility of co-opting up to 4 others on a part-time, limited contract basis if and when specific areas of expertise are required.
Do you agree that the Commission should have the power to determine and appoint its own staff?
The Commission must be in a position to appoint its own staff, and a Chief Executive will certainly be required. However, the relationship between the Chief Executive, as manager, and the Commissioners as decision-makers must be clearly spelled out. Although it may be appropriate to consider backgrounds other than legal expertise as appropriate, it should be borne in mind that the thrust of the Commission’s work will be to consider the legal requirements of human rights instruments and to understand and explain their legal relevance and standing. Serious consideration should be given to this point, as the effectiveness and credibility of the Commission will to a large extent depend on this.
Do you agree that the Commission should be responsible for deciding its own location?
The Commission should be able to determine its own location. However, in light of current technologies, location is less important than is access through other means. The adequate use of technology, and appropriate appreciation of language considerations, as well as attention to those with impaired vision or hearing will be vital to the accountability and accessibility of the Commission, and to its effectiveness.
Do you have a view on the ways in which the Commission could make its services more accessible to the public?
It will be for the Commission to determine how to make its services accessible to the public.
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? If so, which services? To what extent do you think that this would be compatible with maintaining the Commission's perceived independence?
The RSE doubts if the proposed budget is adequate. However, we do not consider that the Commission should charge for any of the services it provides in performance of the duties placed on it by statute. These should be paid for by public funds.
The RSE feels that, even in the provision of services such as training to private bodies and businesses, or an auditing facility for public bodies, the Commission could prejudice its ability to comment on individual cases later. For example, if, in response to a complaint, the Commission began to investigate the complaint, its impartiality might be called into question if it had already conducted an audit or provided training to the body complained against.
In responding to this consultation the Society would like to draw attention to the following Royal Society of Edinburgh publication which are of relevance to this subject: Protecting our Rights: A Human Rights Commission for Scotland and Preparing an Animal Health and Welfare Strategy for Great Britain (July 2001) and The Public Appointments (Parliamentary Approval)(Scotland) Bill (November 2001). Copies of this response and of the above publications are available from the Research Officer, Dr Marc Rands.