Issue 35 December 2006 - Snapshot of Contemporary Developments in the Field of Human Rights

Department for Constitutional Affairs Human Rights, Human Lives-A Handbook for Public Authorities

Lord Falconer's review of the Implementation of the Human Rights Act published in July of this year (and critiqued in Issue 33 ofSHRJ) highlighted the myths and misconceptions surrounding the Human Rights Act and heralded the need for a better understanding of human rights by civil servants and public authorities. The review recommended that the Department of Constitutional Affairs ("DCA") undertake to revise and strengthen its generic guidance for public sector managers with particular emphasis on public safety arguments with a view to ensure the public are informed of the benefits brought by the Human Rights Act. As part of a push across all government departments to provide better guidance, last month the DCA published its Handbook for Public Authorities providing welcome guidance on implementation of the Human Rights Act.

The handbook is designed to educate people at all levels working in public authorities on the Human Rights Act ("the Act"), the Convention rights that it enshrines, the relevance to public authorities and examples on how human rights work in practice. This deliberately non-legalistic and generic publication largely fulfils its stated objectives by giving clear and concise explanations of the principle Convention rights contained in the Act and providing a flowchart as a best practice approach to implementation, together with explanations of key principles and a 'jargon buster' to decipher legalese. The handbook is written for UK wide public authorities and some amendments may be helpful to increase its relevance to Scottish public authorities, for example in bringing out the important lessons learned from the Napier slopping out case.

This publication ought to be the invaluable tool for implementation that it sets out to be. It is limited, however, as to how far it goes to embed a human rights culture within public authorities, and beyond, in the face of a hostile press and public. The foreword of the handbook identifies that it was written not only to fill the gap of guidance in applying the Act but also to address the bad press and misconceptions surrounding the Act. While this approach may be applauded in so far as it advances understanding of human rights, it may also be seen as dangerous to set out entirely on the defensive back foot. It would be preferable for the handbook to be written with a view to go further to promote human rights as exercising a positive influence amongst policy and decision makers where they were previously regarded with suspicion and mistrust. Nowhere in the handbook is there any mention of building a culture of human rights.

This seemingly defensive attitude is subtly reflected in the 'jargon buster' section of the report which has overtones that human rights are something to be 'busted' or tackled by public authorities as opposed to embraced, understood and promoted throughout all institutions and sectors. It seems that the experience of the last eight years since the inception of the Human Rights Act has moved us away from the language of developing an ethos of human rights to an altogether more defensive line of attack.

This need for developing a positive human rights culture was expressly recognised in the Joint Select Committee on Human Rights Committee report of November 14, 2006. This report was to address the concerns surrounding the Human Rights Act arising from the controversial cases of the Afghani hijackers, Rice and the failure to consider foreign prisoners for deportation. The Committee commented that:

"We are convinced that more needs to be done to explain that the act can be a force for good for the people of this country, as well as debunking negative myths about it". They go on to say that "We believe that a culture of respect for human rights is a goal worth striving for."

The handbook does, however, offer positive steps towards increasing understanding of the implementation of human rights. The handbook brings into focus the principle of proportionality and the need to balance an individual's rights against those of the community. This will be crucial in developing an understanding of how human rights ultimately serve us all and are not, as frequently suggested by the UK press and indeed the government itself, simply a tool to aid terrorists and criminals at the expense of the public.

Where the handbook helpfully moves forward from previous publications is in the best practice examples given in relation to each Article. These best practice examples go some way to illustrate how human rights may be used by public authorities for the positive benefit of those requiring its protection as opposed to where case studies highlight where public authorities have got it wrong. It is hoped that public authorities will continue to build on these examples in developing best practice. These can been seen as a move away from a culture of defensiveness surrounding human rights issues to one where human rights are regarded as central to our collective ideology of values of respect, equality and dignity.

In an era when issues of religious and cultural identity, immigration and asylum and protection from terrorist activities are at the heart of public debate, it seems the time is right for human rights to be de-compartmentalised and promoted as the thread that helps us to tackle these issues with a shared understanding of human rights values. Whilst this welcomed publication will no doubt prove successful in assisting public authorities in their implementation of the Human Rights Act, it is perhaps an opportunity missed to reassert the need for a human rights culture and assist the public in appreciating the broader influence of human rights in addressing contemporary issues.

Scottish Commission for Human Rights Bill

Recognition of the need for the promotion of a human rights culture was brought to the forefront of Scottish politics in the recent debate around the Scottish Commission for Human Rights Bill. On November 2, 2006 the Scottish Parliament finally passed the long awaited and much debated amended Bill for a Scottish Human Rights Commission.

A number of amendments to the Bill were made, most importantly changing the body from a "commissioner" to a "commission" with the consequential changes. Following concerns around potential difficulties in entrusting a single commissioner to promote and encourage best practice in human rights the Executive agreed to revert to the original concept of a commission. The new body will consist of a chair, nominated by the Parliament and appointed by the Queen, and up to four other members appointed by the parliamentary corporation. There is an allowance for the member commissioners to be full or part time.

There continued to be much debate in the Parliament regarding whether the commission should be amalgamated with another office, most probably the Scottish Public Services Ombudsman ("SPSO"). This had previously been discussed at length at stage 2 by the Justice 1 Committee and rejected. The suggestion was hotly disputed by the supporters of the Bill who made strong arguments in favour of the establishment of a commission which would nevertheless allow scope for sharing of back-room services with other bodies. The ministers promoting the Bill referenced the recent Amnesty Report on Scottish Public Authorities' delivery of Human Rights which concluded that there was still a widespread lack of focus amongst public authorities on human rights issues and called for more to be done to raise awareness and compliance. The distinction was made between the reactive role of the SPSO in addressing complaints and the role of the commission which will be proactive and aimed at addressing more general issues and the full range of the Scottish Parliament's functions and devolved issues.

Parliament expressed its view in the debate that it did not expect any duplication to occur in the work of the commission with other bodies, while recognising that there may sometimes be a commonality of interest. It was also clarified that the commission will have no power to be involved in individual casework and should direct its resources at broader promotional and awareness raising work. It was urged, however, that as time goes on the role of the commission should be reconsidered and may well evolve and be given 'more teeth'.

Further changes to the proposals included the requirement for the commission to publish and consult on a strategic plan and the explicit requirement for the commission's budget to be approved by the Scottish Parliamentary Corporate body ("SPCB"). An amendment was passed to allow for the SPCB to determine the initial location of the commission's office with the benefit of both a sharing of administrative costs and in order to provide a 'one-stop shop' for those seeking advice. It is expected that the SPCB will discuss co-locating with the GB Commission for Equality and Human Rights.

The Bill will become an Act once it has received Royal Assent, which is expected in mid- December 2006 and, thereafter, the timetable for establishing the commission will be for the Scottish Parliament to decide. Mr Robert Brown, member of the Executive, told MSPs: "The Scottish commission for human rights will help us achieve the modern, confident and inclusive Scotland we all want to see." With such strong opposition and concerns about the need for such a body and the costs involved it will be for the newly established commission to prove its worthiness in being open and accessible and promoting the culture of human rights that Scotland should strive to achieve.