Protecting our Rights A Human Rights Commission for Scotland
The Royal Society of Edinburgh (RSE) is pleased to respond to the Scottish Executive Justice Department consultation on Protecting our Rights: A Human Rights Commission for Scotland. The RSE is Scotland’s premier Learned Society, comprising Fellows elected on the basis of their distinction, from the full range of academic disciplines, and from industry, commerce and the professions. This response has been compiled by the General Secretary with the assistance of a number of Fellows with substantial experience of human rights issues.
The specific questions identified by the consultation are addressed below:
In your opinion, does Scotland need a Human Rights Commission?
While events have yet to show any adverse consequences of not having a Human Rights Commission, and there are arguments against creating another Quango, the RSE believes there is a sufficent case made for Scotland to have a Human Rights Commission.
Implementation of the Convention on Human Rights will require more than the procedural safeguards provided by the Parliament and the judiciary as many human rights issues will not arise as matters which will come directly within the specific jurisdiction of these bodies. In addition, the aspiration that respect for human rights will become a central part of the conduct of all bodies responsible for their endorsement will be more likely to be achieved where the focus is on prevention of breach rather than on remedying existing breaches.
Do you think that there is a need for closer scrutiny of legislation, more guidance to public authorities or the public, or a specific awareness-raising campaign on human rights issues?
Scotland’s Parliament is new and we have little experience of the effect of the Human Rights Act on the processes of government. 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.
The ‘margin of appreciation’ doctrine is really an argument for a Human Rights Commission. The doctrine is a judicial doctrine, and neither the legislator nor the administrator is the best judge of whether it can legitimately be invoked. It will only be discovered after the event whether the judiciary consider that the action complained of came within the margin of appreciation. A Human Rights Comission, advising before the event, cannot therefore guarantee that the legitimate margin of appreciation has not been exceeded, but the risk would be less. The advice of an independent and impartial Human Rights Commission could also legitimately be cited to show that the human rights implications had been properly considered.
Public authority guidance
For many such authorities and bodies, the Human Rights Act and its implications (as well as the whole framework of the discourse of human rights) are new and still unfamiliar. Whilst it could be argued that the Executive should ensure that it has appropriate expertise in house to scrutinise legislation, it is not realistic to expect all public authorities to have such in house expertise; nor do non-governmental bodies have ready (and free) access to suitable expert advice. 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.
Public awareness raising
Although the introduction of the European Convention on Human Rights (ECHR) to the UK and in particular Scotland has received a great deal of publicity, there is still a need for reminding the public of the existence of the ECHR and of their rights under it. Not only will this be likely to develop a cultural awareness of humanrights, but it will also enhance the climate of prevention of breach of the Rights and serve to avoid vexatious (and expensive) litigation.
If so, does this justify the creation of a new body; or could these issues be addressed in other ways?
It is desirable that the Scottish Parliament and Executive should have access to independent and impartial advice and guidance on the human rights aspects of legislative and other proposals from an independent Human Rights Commission. Guidance to public authorities and conducting public-awareness campaigns are also desirable. While other bodies exist which address some aspects of human rights, a lack of cohesion may result from this fragmentation and, therefore, a body whose sole concern is with human rights might best serve these issues.
Do you consider that there is a strong case for a specifically Scottish body?
Given the differences between Scotland and the rest of the UK, which underlay the arguments for devolution, then it must be conceded that there are legal, educational and social characteristics in Scotland which may require separate and specialist consideration.
If you support the creation of a new body for Scotland, what role or roles do you think it should have?
The role of the Scottish body should be similar to that of the Northern Ireland Human Rights Commission with the roles of promoting awareness and understanding of the importance of human rights, publishing or making available research findings and reviewing existing law and practices and advising the Government on what steps are necessary for protection of rights.
It is questionable in principle whether one and the same body should be responsible for giving independent and impartial advice to Parliament, the Executive and other public bodies on human rights issues and, at the same time, assisting individuals to take legal or other action in cases where rights may have been breached. Effective performance of the latter function could affect the Commission’s independence and impartiality in performance of the former.
On the other hand, there is no reason why the Commission should not be asked, in carefully chosen and limited circumstances, to investigate and report on possible cases of abuse. It is suggested that, in such cases, the request should come from theScottish Parliament and the report be made to Parliament.
Which of these is likely to be the most effective in your view?
Particularly at the start it will be important that the Human Rights Commission should not be overloaded and that a situation be avoided in which the members of the Commission spend so much time investigating and discussing individual cases that they do not have time to concentrate on their advice function. The reputation of the Commission with those whom it is set up to advise, as well as the public, would depend very much on the reputation and judgement of its members.
Correspondingly, the cost, in terms of infrastructure and manpower, would be far greater if the Commission were given the function of investigating individual complaints and assisting individuals in pursuing them.
Are all of the functions mentioned above complementary, or are some of them mutually incompatible?
The three roles of the Northern Ireland Human Rights Commission, mentioned above, would all be complementary.
If a new body were to be created, do you think it would require a statutory basis?
A Commission performing the functions suggested above could not work effectively without a statutory mandate.
What, in your view, should be the relationship between a new body and existing UK statutory bodies?
There will need to be a close relationship between a new body and existing UK statutory bodies, and there should be the power to refer between organisations.
Would creating a new body require a re-examination of the remits of any existing organisations?
There are already a number of other agencies, public, semi-public and private, whose task it is to assist the individual. In some areas – particularly equal treatment of men and women, disability and race discrimination – there would be a danger of overlap between the activities of the Scottish Human Rights Commission, on the one hand, and those of the UK Commissions for Equal Opportunities, Disability Rights and Racial Equality, on the other. There would also be a danger of overlap with the work of the Ombudsmen, UK and Scottish. If the remit of the Scottish Human Rights Commission were defined and limited as suggested above, there should not be any danger of overlap or conflict with existing bodies.
However, powers to refer to the Human Rights Commission may need to be made clear, and it would certainly be the case that financial provisions would require to be given careful consideration in order that the new body was not used as a route to avoid expenditure for other organisations.
To whom, in your view should a new body be formally accountable?
The Human Rights Commission should be accountable to the Scottish Parliament.
How in your view should appointments be made, and by whom?
The best course would be to establish a small group of MSPs with party political balance to recommend appointments for the Human Rights Commission to the Scottish Parliament. Appointment procedures should be seen to be open, and should follow advertisement in the media. It may also not be inappropriate to invite certain bodies to provide nominations, in addition to those who apply personally, although they should be given no preferential treatment in the selection process
How many members should a new body have?
If the Commission has too many members, it will not be able to meet regularly with a full attendance of members, which would limit the Committee's effectiveness and weaken the Commission’s influence. It is suggested, therefore, that a Commission of five to eight members would, on the one hand, be large enough to ensure appropriate representation while, on the other, be small enough to meet regularly.
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?
Specialist skills will be needed to carry out the work of the Commission in providing expert advice and guidance. 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. With the process of inviting nominations forming part of the application process, these groups will also be in a position to nominate an individual representing their specific area of interest.
What, in principle, do you think the structure of any new body should be?
A simple structure of Chairman/woman, members and secretariat would be sufficient, with the occasional use of short term working groups.
The Commission should have its own independent budget and a small permanent secretariat with some research staff. Financial provision should also be made available for the use, on a consultancy basis, of outside experts, such as senior counsel.
Given that the Commission would have responsibility for a wide range of duties, its staff and Commissioners should have (collectively) knowledge of the media, education, law, public administration and general human rights issues.