Article 5(3) and 5(4): short power points as text

ARTICLE 5(3) REVIEWS
Review can be by public prosecutors’ departments instead of judges in court.
But “officer” must have guarantees of “judicial” power conferred on him/her by law.
Formal, visible and specific law essential for necessary judicial authority (Hood v. the United Kingdom; De Jong, Baljet and Van den Brink v. the Netherlands).

Independence
Independence from executive and parties. Officer may be to some extent subordinate to other judges provided that they are independent.
A judicial officer who decides on detention may also carry out other duties, but impartiality must not be in doubt.
Intervention in subsequent proceedings as a representative of the prosecuting authority causes doubt (Huber v. Switzerland; Brincat v. Italy).

Hearing from the detainee
Duty to hear the detainee in person before taking the decision (Schiesser v. Switzerland; De Jong, Baljet and Van den Brink v. the Netherlands; Nikolova v. Bulgaria; Aquilina v. Malta).
Lawyer’s presence not obligatory (Schiesser v. Switzerland). But exclusion of a lawyer from hearing may adversely affect the applicant’s ability to present his case (Lebedev v. Russia).

Nature of the review (1)
The judge must review the circumstances for or against detention and decide by reference to legal criteria (Schiesser v. Switzerland; Pantea v. Romania) and to consider the merits of the detention (Aquilina v. Malta; Krejčíř v. the Czech Republic).
The initial review of arrest and detention must examine lawfulness and whether or not there is a reasonable suspicion that arrested person committed an offence (Aquilina v. Malta; McKay v. the United Kingdom; Oral and Atabay v. Turkey).
Nature of the review (2)

Review review must lawfulness and must establish whether the deprivation of the individual’s liberty is actually justified.
Judge must have the power to order release in practice (Assenov and Others v. Bulgaria, § 146; Nikolova v. Bulgaria; Niedbała v. Poland; McKay v. the United Kingdom).
ARTICLE 5(4) REVIEWS
An arrested or detained person is entitled to bring proceedings for review by a court of the procedural and substantive conditions for detention (Idalov v. Russia [GC]; Reinprecht v. Austria).
The arrested or detained person is entitled to a review of the “lawfulness” of his detention in the light not only of the requirements of domestic law but also of the Convention (Suso Musa v. Malta).

Article 5(4)
If a person is detained under Article 5 § 1 (c), the “court” must examine whether or not there is sufficient evidence reasonable suspicion that he or she has committed an offence.
Where the justification the person’s deprivation of liberty change over time, there must be access to court complying with Article 5 § 4 (Kafkaris v. Cyprus).
Review by court
A detainee is entitled to apply to a “court” having jurisdiction to decide “speedily” whether or not his deprivation of liberty has become “unlawful” in the light of new factors (Abdulkhanov v. Russia; Azimov v. Russia).
Nature of the court
It must have “judicial character” with procedural guarantees and independent from the executive and the parties (Stephens v. Malta (no. 1)). But “court” does not have to be a court of the classical kind Weeks v. UK).
Court must comply with substantial and procedural rules and be conducted with the aim of the protection against arbitrariness (Koendjbiharie v. the Netherlands).
The “court” must have the power to order release; a mere power of recommendation is insufficient (Benjamin and Wilson v. the United Kingdom).
Hearings and presence of detainee
Not necessary for that all Article 6 guarantees to apply but must have judicial character and provide guarantees appropriate deprivation of liberty (A. and Others v. the United Kingdom [GC]; Idalov v. Russia [GC]).
Does not require that a detained person be heard every time he appeals a decision extending detention, but the right to be heard needs to occur at reasonable intervals (Çatal v. Turkey; Altınok v. Turkey).

Adversarial and equality of arms (1)
The proceedings must be adversarial and ensure “equality of arms”(Reinprecht v. Austria; A. and Others v. the United Kingdom [GC]).
This may require witnesses to give evidence relevant for the justification for the detention (Ţurcan v. Moldova).
Equality of arms breached if detainee is denied access to documents in the investigation file (Ovsjannikov v. Estonia; Fodale v. Italy; Korneykova v. Ukraine).
Adversarial and equality of arms (2)
It may be necessary for the individual concerned to have the opportunity to be heard in person as well as the effective assistance of his lawyer (Cernák v. Slovakia).
The principle of adversarial proceedings and equality of arms must be respected in the proceedings before the appeal court (Çatal v. Turkey).
Speedy judicial review
The right to a “speedy” decision is determined in the light of the circumstances (Rehbock v. Slovenia) but it must be provided soon after the person is taken into detention then at reasonable intervals (Molotchko v. Ukraine).
Where a initial decision taken by a non-judicial authority, court review must be prompt (Shcherbina v. Russia delay of sixteen days in the judicial review of the applicant’s detention order issued by the prosecutor was found to be excessive).
Time period for review (1)
Starting point the moment that the application for release was made. The relevant period comes to an end with the final determination of the legality of the applicant’s detention, including any appeal (Sanchez- Reisse v. Switzerland; E. v. Norway; Hutchison Reid v. the United Kingdom; Navarra v. France).

Time period for review (2)
Strict standards (Kadem v. Malta, seventeen days was excessive, and in Mamedova v.Russia, twenty-six days, was found to be in breach in relation to time for appeal).
Where complex issues involved – such as the detained person’s medical condition – this may be taken into account.
The State needs to explain the reason for any delay (Musiał v. Poland [GC]; Koendjbiharie v. the Netherlands).
Excessive workloads and vacations can not justify delay (E. v. Norway; Bezicheri v. Italy).

Article 5 the right to liberty: short power points as text

INTRODUCTION: THE RIGHT TO LIBERTY

Aim to ensure that no-one is deprived of their liberty in an arbitrary fashion.

Article 5(1)(a) – (f) an exhaustive list of reasons.

Paragraphs (2), (3) and (4) provide minimum procedural safeguards and paragraph (5) the right to compensation.

What is lawful detention?
Detention?: possibility of leaving area, degree of control, and extent of isolation and social contacts.
Secret detention: negation of fundamental rights and grave violation
‘Lawful’ detention: must conform to the substantive and procedural rules of national law, legal certainty required, and conditions for deprivation of liberty must be clearly defined and the law foreseeable.
Detention in criminal cases Article 5(1)(c)
Article 5(1)(c) – object to bring the person before legal authority because:
necessary to prevent the commission of an offence or;
reasonable suspicion of having committed an offence or fleeing after having done so.
“Effected for the purpose of bringing him before the competent legal authority”
‘Reasonable suspicion’ – facts or information that person committed offence.

Article 5 (2) Reasons for arrest and detention
Any person arrested needs know why he or she is being deprived of his liberty
Enables exercise of right to challenge the lawfulness of the detention
‘Promptly’ – a few hours after arrest will suffice.
Necessary to give factual grounds and specific legal basis in order to understand whether its application was reasonable.
Article 5(3) Right to be brought promptly before a judge
Judicial control crucial safeguard against arbitrary detention.
‘Prompt and automatic’ in excess of 4 days is too long
Shorter periods apply if no special difficulties.
Judicial control must be automatic.
Must hear from detainee and their lawyer (if necessary).
Must be reasons for the detention, including reasonable suspicion and consider all circumstances for or against detention
Article 5(3) Trial within a reasonable time and release pending trial

The authorities cannot choose between trial within a reasonable time and release, both rights apply

Reasonable period: depends on the circumstances of the case – the arguments for and against release must not be “general and abstract” and reasoned public decision why continued detention is necessary must be given.
Grounds for continued detention
The risk that the accused will fail to appear for trial; and/or

the risk that the accused, if released, would take action:

to prejudice the administration of justice,
commit further offences, or
cause public disorder.

Risk of absconding
Assessed not solely on the basis of the severity of the sentence if convicted but:
in light of the accused’s character, home, occupation, assets, family ties and other links;
mere absence of a fixed residence not bar to release;
risk decreases with time spent in detention; and
must consider alternative measures of ensuring appearance at trial.
Article 5(4) Right to have detention examined by a Court

Court must be a body of “judicial character” offering appropriate procedural guarantees.
The review must comply with the substantial and procedural rules of the national legislation and Article 5.
Must consider relevant facts relevant to the conditions essential for the “lawfulness,”of the detention.
Must have the power to order release.
Procedural guarantees & speedy determination
A hearing is always required,
proceedings must be adversarial,
must be “equality of arms” between the parties;
detainee must be able to challenge the allegations against him, including requiring the court to hear witnesses or be given access to documents.
The detainee must be able to institute proceedings speedily, and receive a speedy determination by the court.
Period between reviews
Article 5(5) Victims of unlawful detention entitled to compensation

Article 3 and the need for investigations: short power points

Obligation to Respect Human Rights
Article 1:
“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.”
A positive duty to ensure that the rights in the rest of the ECHR are respected.

Key principles of human rights law

States have an obligation to protect people from human rights violations;
Obligation particularly applies to the most vulnerable and must be complied with without discrimination;
Any serious human rights abuses must always be investigated effectively.

Duty to investigate
There must be an effective official investigation into deaths and alleged violations resulting from the use of force. This investigative obligation is known as the ‘procedural aspect’ of Article 2 and 3 (and 4 and 8).
Purpose of an investigation
“… to secure the effective implementation of the domestic laws safeguarding the right to life and, in those cases involving state agents or bodies, to ensure their accountability for deaths occurring under their responsibility…
Purpose of an investigation
“…not only the actions of the state agents who directly used lethal force but also all the surrounding circumstances, including such matters as the planning and control of the operations in question, where this is necessary in order to determine whether the state complied with its obligation…”.

Independent investigation of law enforcement officials
It is necessary for the persons responsible for carrying out the investigation to be independent from those implicated in the events. This requires a lack of hierarchical or institutional connection as well as a practical independence.”

Transparency
In both Article 2 and 3 cases: although the inquiry should be transparent the degree of public scrutiny may vary from case to case,
it is necessary in all cases for the victim or his or her next of kin to be involved to the extent required to safeguard their legitimate interests.
Duty to investigate: Article 3

“…the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions.”

Independent investigations: Article 3
Where an individual raises an arguable claim that he or she has been ill-treated by the police or other agents of the state unlawfully there must be an effective official investigation.
The investigation should be capable of leading to the identification and punishment of those responsible.

Injured in custody
If victims provide evidence that they were injured at the time of release from custody but healthy at the time that they were taken into custody the burden is on the detaining authorities to provide a plausible explanation.
Judges and supervisors of such investigations should be particularly vigilant for flaws in the investigative process.

Law enforcement officials failures
To protect individuals from violations and to investigate effectively allegations made by vulnerable or abused groups:
Prisoners and others detained
Lesbian, gay, bisexual and transgendered people
Ethnic minorities
Women and those subject to domestic violence or sexual assault
People with disabilities
Victims of trafficking

Article 3: short power points

ARTICLE 3
The protection against torture, inhuman or degrading treatment or punishment is fundamental to the Convention.
It contains both substantive obligations and procedural obligations, such as the obligation to investigate alleged breaches.
Article: severity
Article 3 can be broken down into 5 elements: torture, inhuman, degrading, punishment and treatment.
The conduct must attain “minimum level of severity” for each category (Ireland v UK).

Threshold of ill-treatment
Relevant factors:
duration of the treatment,
physical or mental effects,
purpose of the treatment (to humiliate or debase the victim?)
sex, age and state of health of the victim -see for example Jalloh v Germany and Price v UK

Definition of torture (1)
The prohibition on torture also part of customary international law and many international instruments.

A high threshold applies because a special stigma attached to deliberate infliction of inhuman treatment causing very serious and cruel suffering.

Definition of torture (2)
The definition in UNCAT:

The infliction of severe mental or physical pain or suffering;
The intentional or the deliberate infliction of the pain;
The pursuit of a specific purpose (gaining information, punishment or intimidation).

Adopted for ECHR Akkoc v Turkey

The Dividing Line?
Ireland v UK : the five techniques of
wall-standing,
hooding,
subjection to noise,
deprivation of sleep, and
deprivation of food and drink
During the interrogating suspected terrorists was inhuman and degrading treatment but not torture.
Treatment on arrest or in custody
In custody the threshold for inhuman treatment is lowered.
Any recourse to physical force in respect of a person deprived of his liberty not strictly necessary is an infringement of Article 3 because it has the effect of diminishing the human dignity of the individual involved – Ribitsch v Austria.

In custody
Bouyid v Belgium, a slap in custody is breach:
“diminishes human dignity constitutes a violation… [and the] use of physical force against an individual where it is not made strictly necessary by his conduct, whatever the impact on the person in question.”
Deliberately cruel acts may be inhuman treatment: Selcuk & Asker v Turkey , Dulas v Turkey & Bilgin v Turkey

Discrimination and Article 3
Discrimination against an individual or group of individuals may amount to a violation of Article 3 – East African Asians v UK Comm Report, Cyprus v Turkey

Onus on state
State must provide an explanation for an injuries caused to a detainee in police custody and demonstrate that they were necessary and that no more force than was necessary was used (Tommasi v France).
Arrest and Art 3: Examples

Use of force must be strictly necessary and proportionate (Tzekov v Bulgaria).

Strip search in own home because it was invasive and debasing and not necessary and justified for security reasons – Weiser v Austria .

Restraint (1)
Handcuffing during the course of an arrest in general will not reach the minimum level of severity necessary to amount to degrading treatment, provided the arrest is lawful and does not involve any more force or public exposure than is necessary in the circumstances -Raninen v Finland .
Restraint (2)

Where handcuffs are used in the course of an unlawful detention or arrest or goes beyond what is necessary in the circumstances there may be a violation.
Gordiyenko v Ukraine violation where Court “not convinced that it was indispensable to use the force against the applicant, including his handcuffing”

Restraint (3)

Restraint accompanied by beating likely to be violation – Rehbock v Slovenia.
Handcuffing and mechanical restraint must not be used as punishment (Tyrer v UK).

Procedural Protections (1)
Judges play key role to guarantee rights to:
have the fact of detention notified to family, friend or consulate;
confidential access to a lawyer, visited by lawyer and right for lawyer presence during interrogation; and
access to doctor and medical examination, out of hearing and preferably out of sight of police officers.
(2nd General Report of CPT, Korobov v. Ukraine)

Detention
Detention conditions violate Article 3 where they degrade the prisoner (Peers v Greece; Kalashnikov v Russia).
In assessing conditions consider:
age,
sex,
health,
danger they pose,
any special needs that require special care,
and whether unconvicted prisoner.
Police Custody
cell should be reasonable size for the number of people,
adequate lighting and ventilation,
a means of rest,
clean mattress and blanket,
clean toilet facilities and access to washing,
regular food and one full meal a day and other refreshment (CPT standards).

Prison conditions: factors
length of detention,
overcrowding,
absence of sleeping facilities (Dougouz v Greece),
sanitary conditions,
natural light,
access to outdoors,
short periods in bad conditions may be violation (Fedotov v. Russia,Sizarev v Ukraine)
Solitary confinement

Solitary confinement should not be prolonged,
not imposed on a remand or juvenile prisoner,
sensory and social isolation combined are unjustifiable as these can destroy personality(X v Denmark).
Access to care in prison

Absence of healthcare could result in a violation (McFeeley v UK, Keenan v UK).
Kudla v Poland: Conditions detention should not exceed level of suffering in inherent in detention and health and well being need to be secured by provision of medical attention.

Other Conditions
Force-feeding an individual may amount to inhuman or degrading treatment (X v Germany).
Nevmerzhitsky v Ukraine force feeding on hunger strike only if necessary to save life.
Handcuffing of prisoners with terminal illnesses to a hospital bed can amount to a violation of Article 3 (Henaf v France).

Female detainees

access to sanitary and washing facilities,
provision of female hygiene items, and
safe disposal arrangements blood-stained articles.
Medical staff should have training in women’s health issues (CPT, Third General Report).

Sexual assaults in custody
Rape of detainee by official amounts to torture Aydin v Turkey.
Obligation to protect detainees from sexual and other assaults by other prisoners.
Women should be held in separate accommodation.

Searches

Intimate & Strip searches may constitute degrading treatment
must be conducted in an appropriate manner which did not unnecessarily diminish the detainees human dignity (Valasinas v Lithuania).

Treatment in detention – special needs

Price v UK and D.G. V Poland keeping a prisoner, a wheelchair user, and/or detaining for 18 months in prison that was unsuitable for persons with physical disabilities was violation.
Article 6 issues (1)

Evidence obtained by torture will not be admissible in court under any circumstances, even where it does not constitute crucial or decisive key evidence against the accused (Yusuf Gezer v. Turkey).
Article 6 issues (2)
Evidence obtained against the will of the accused may need to be excluded by Article 6 – but not where the evidence on which the conviction was based was not related to the coercion.
Use of evidence discovered by threats of ill-treatment not contrary to Article 6 where the defendant admitted his guilt later (Gäfgen).

Dignity in custody: a slap and a violation

Case analysis: see more detailed article in European Human Rights Law Review (forthcoming), summary below 

Bouyid v Belgium (App. No. 23380/09), Grand Chamber judgment of September 28, 2015

http://hudoc.echr.coe.int/eng#{“languageisocode”:[“ENG”],”documentcollectionid2″:[“GRANDCHAMBER”],”itemid”:[“001-157670”]}

This case concerns Article 3 and the precise threshold of the nature of what kinds of ill-treatment will constitute inhuman or degrading treatment on arrest and in detention. The Grand Chamber overturned the Chamber judgment in this case and declined to follow previous established case law, concluding that an unjustified and unnecessary “slap” on the face by a police officer of a person arrested or detained is sufficient to cross that threshold. Such an assault is no longer “in principle” a violation of Article 3 but is not subject to any exceptions. Three judges dissented from the majority of the Grand Chamber on this point.

The Court, unanimously, also found a violation of the procedural duty in Article 3, the duty to ensure there is an independent and effective investigation into the allegation of ill-treatment in custody. The lowering of the threshold and the nature of the relatively new procedural duty combined may require an extension of the mandate and practice of police complaints and oversight bodies.

 

Human Rights in the United Kingdom: New Jurist article 15the September 2015

In October 2014, the day after their annual conference ended, the Conservative Party announced new and radical proposals. The announcement stated:

“At the heart of the reform will be a new British Bill of Rights and Responsibilities that will restore common sense to the application of human rights in the UK. A draft of the Bill will be published for consultation before Christmas.

Among other things the Bill will stop terrorists and other serious foreign criminals who pose a threat to our society from using human rights to prevent deportation. It will make it clear that people have clear responsibilities to society, and that there is a proper balance between rights and responsibilities in British law.

The Bill will remain faithful to the basic principles of human rights which the United Kingdom signed up to in the original European Human Rights Convention, but it will reverse the mission creep that has meant human rights law being used for more and more purposes, and often with little regard for the rights of society as a whole. …”

However:

a. “These proposals threaten to create domestic constitutional difficulties and to undermine our international reputation and influence for entirely illusory benefits.
“It ought to be obvious to the paper’s authors that such an outcome is impossible without destroying the Convention’s effectiveness. Why should a state subject to an adverse judgement comply with it if the UK can ignore its own? The proposal undermines entirely the principles that underpin international law. It represents a failure of ambition by the Conservative Party on the global promotion of human rights, and is contrary to the line we have previously maintained in government.”

b. “Travellers will be expected to obey planning laws and keep out of green belt land, even where no provision has been made for lawful sites for them and their families. ‘Foreign criminals’ will be unable to use rights to family life to avoid removal. Rights are not for criminals, particularly foreigners, villains, or other undeserving folk. At a stroke, the notion of universal human rights disappears. And the other thing that will disappear is judicial independence — the careful, case-by-case judicial balancing of personal rights against public interest considerations, a balancing process which lies at the heart of the Convention, but is in danger of being swept away by restrictive blanket rules.”

The Conservative proposals in summary:

For domestic law

• the repeal of the Human Rights Act;

• enactment instead of a ‘British Bill of Rights and Responsibilities’;

• the Bill will not include the requirement (currently in section 2 of the HRA) to have regard to decisions of the Strasbourg court;

• instead the Bill will require to the UK courts only to take account of the substantive text of the ECHR (not the jurisprudence of the ECtHR), so that Convention rights “are applied in accordance with the original intentions”;

• the Bill will set out some specific limitations and exemptions to the rights currently enjoyed under the Human Rights Act. In particular:

1- to limit the “use of rights to the most serious cases” (presumably right to life, torture, slavery, freedom from arbitrary detention, fair trial and freedom of expression but not privacy, protest or anti-discrimination),
2- to prevent rights applying to the “British Armed forces overseas”, terrorists and serious criminals “who pose a significant threat to the security and safety of UK citizens” would lose their right to stay in the UK, and

3- “no one will be able to claim human rights to step outside the law”, the example used here in the paper is of travelers using the right to a home to challenge planning decisions;

In relation to the European Court of Human Rights

• “Every judgement that UK law is incompatible with the Convention will be treated as advisory” and a new parliamentary procedure will be introduced to consider such judgments, which “will only be binding in law if Parliament agrees that it should be enacted as such”
• During the passage of the Bill the government will try to negotiate with the other member states in the Council of Europe “to seek recognition that our approach is a legitimate way of applying the Convention. In the event we are unable to reach that agreement, the UK would be left with no alternative but to withdraw from the European Convention on Human Rights.”

• In addition, the government would ensure that the current discussions over the accession of the European Union and its constituent bodies to the ECHR took account of and respected the UK’s new approach.

• In its proposed wider negotiations with the EU pending the “in or out” referendum, a new Conservative government would address anything in the relationship between the EU and the UK “which encroaches upon our new human rights framework”. This is, presumably, a reference to the EU’s Charter of Fundamental Rights and the extent of its jurisdiction and impact but would also pick up issues raised by the free movement principles of the EU treaties.

The proposals have been condemned as unworkable by many lawyers in the UK, human rights NGOs and others. The Council of Europe itself responded to the proposals by stating:

“We take note of these proposals by the Conservative Party. We also take note they are not draft legislation. As they stand, the proposals are not consistent with the ECHR.”
Commentators have made the following observations on these:

• They are based on some factual miss-statements of law: for example wrongly stating that the Strasbourg court has banned whole life sentences’ and suggesting that the Strasbourg court’s judgments are currently binding in national law;
• It is inaccurate to suggest that British courts are bound by interpretations of Convention rights by the Strasbourg courts: section 2 is only a duty to have regard to them, and indeed, section 3(2) prevents courts from interpreting law compatibly with Convention rights as interpreted by the ECtHR if legislation expressly requires this;

• The suggestion that the living instrument doctrine will be abolished – as a matter of domestic law – would have the odd and perverse effect that interpretation of the ECHR would be stuck in the 1950s when the Convention was drafted, so that situations which were not in contemplation at that time (such as legal recognition of same-sex relationships; or consideration of the legality of retaining DNA) could not be tested by reference to how the core values of the Convention apply to 21st century problems;

• The suggestion that protection of rights would be limited to ‘the most serious cases’ begs the question of who decides what are ‘the most serious cases’: it is implicit that the legislature would seek to bind the hands of the courts on what is regarded as sufficiently ‘serious’ to enjoy protection, in contrast to the present position whereby the courts decide whether infringement of a qualified right is proportionate in the circumstances, which include the extent of interference with the underlying right;

• The proposal to prevent rights applying to British Armed forces overseas would overturn the Smith judgment of the Supreme Court and the Al-Skeini judgment of the Grand Chamber of the ECtHR, so domestic law on the extent of the United Kingdom’s ‘jurisdiction’ would be at odds with the concept in international law. It would also mean that a victim of a breach of human rights abroad (whether a British soldier qua victim or victim of a British state agent) would have a direct remedy only in the ECtHR in Strasbourg;

• The suggestion that some criminals and suspected terrorists would lose their Article 2 and 3 rights in respect of removal to countries would again put domestic law on a collision course with well-established Strasbourg caselaw in cases like Soering v UK (1989) 11 EHRR 439 and Chahal v UK (1996) 3 EHRR 413. It also seems incompatible with the fundamental principle of equality before the law, and the absolute nature of the rights to life and freedom from torture. Irrespective of the position of the UK in relation to the ECHR it would be a breach of the European Convention for the Prevention of Torture, the UN Convention Against Torture and the ICCPR to allow a person to be sent out of the UK to another country if they are likely to be tortured in that other country. Therefore the idea that the proposals can create a situation where “those who pose a national security risk to this country or have entered it illegally cannot rely on questionable human rights claims to prevent their deportation” is highly questionable.

• If ‘no-one will be able to claim human rights to step outside the law’, there would be no mechanism in which a domestic court can test the compatibility of statutory provisions with human rights standards (in contrast to the present system where a court which considers that a statutory provision is incompatible with human rights standards can make a declaration to that effect). For example a law prohibiting gay sex (such as existed in Northern Ireland until the judgment in Dudgeon v UK (1981) 4 EHRR 149 would be unassailable in domestic law.

• A law which rendered Strasbourg judgments ‘advisory’ only would breach Article 46 ECHR, which requires signatory states – as a matter of international law – to abide by judgments against them. It is inconceivable that the Council of Europe could agree to this. If – as the Secretary of State for Justice suggests – Britain would then withdraw from the Council of Europe, it would be the only country in Europe not to be a member other than Belarus, and the only country ever to withdraw from a human rights instrument which it had signed apart from Venezuela, and North Korea.

• The suggestion that the government would “ensure” that the current discussions over the accession of the European Union and its constituent bodies to the ECHR took account of and respected the UK’s new approach could only mean a veto.

Following the election, and with a new Secretary of State for Justice, Michael Gove, the new government has promised a consultation document by the end of 2015. The criticisms of the October 2014 might therefore result in some slightly different proposals.

The Human Rights Act 1998 came into force fifteen years ago and the Act continues to have a profound effect on domestic law, substantially strengthening the legal protection afforded to human rights in the United Kingdom. Where citizens once had ‘negative’ liberties—no more than the residue of rights left over after the law had been obeyed—they now enjoy positive freedoms and the power to enforce them. The Human Rights Act has been used to hold the Government and public authorities to account in a multitude of contexts—preventing the indefinite detention of foreign terrorist suspects, broadening the ambit of procedural justice, recognizing the rights of transsexuals to marry someone of their original gender, protecting the right to freedom of speech, even when it offends, ensuring that the state does not retain the DNA records of innocent people. If it was ever a matter of doubt, it is now plain that the Human Rights Act can no longer be regarded as just another statute. Rather it places on an ever-speaking statutory basis an assumption that certain legal norms are fundamental and underpin all other statutory interpretation. Lord Justice Laws placed it in a category of ‘constitutional statutes’ which include the Magna Carta and the European Communities Act 1972, and the Government accepted its status as a ‘received part of our constitutional arrangements’. However the number of cases going to the Strasbourg Court has not yet been stemmed, and the decisions of appeal courts in the United Kingdom are often ‘overturned’ by the European Court of Human Rights:

“…there have been no fewer than 10 occasions on which the European Court of Human Rights has issued a judgment which is at variance with that which was earlier reached by the House of Lords.”
This can be seen as a positive mechanism of dialogue between national and international law norms, and a valuable part of the new constitutional settlement.

The Act, however, continues to be condemned by the popular press however as a ‘villains’ charter’ that privileges the rights of unpopular minorities (often the criticisms concern non-British citizens “taking advantage” of the Act) over the law-abiding majority, while the judiciary (both from the UK courts and the judges in Strasbourg) is damned for its usurpation of democratic power. These accusations are – at least when the details of the cases are analysed – unwarranted. Despite common misconceptions to the contrary, the Human Rights Act does not allow courts to strike down legislation that violates fundamental rights. Instead, the Act strikes a careful balance between parliamentary sovereignty and judicial oversight that enables the courts only to issue a declaration of incompatibility where a legislative provision is incapable of being read compatibly with Convention rights. Ministers (and Parliament) make the final decision as to whether or not to amend legislation which has been held incompatible with the Convention. Though it is under no legal obligation to do so, governments usually respond to declarations of incompatibility by changing legislation (albeit generally after an appeal and some delay). But they do not have to do so as a matter of national law: and indeed, in the celebrated impasse over prisoners’ voting rights, they have not done so.

Consequently, the Supreme Court has held that it would be inappropriate for it to make any further declaration of incompatibility on this subject: the legislature and executive now have the judicial view on this subject and its constitutional role is at an end . Rather than judicial usurpation, this model of rights protection ought to be characterized as healthy democratic dialogue, and it leaves in place the British dualist legal tradition, in which international legal obligations are applied in national courts only if and to the extent they are incorporated into national law by statute. The late Lord Bingham summed up the position in his powerful and eloquent speech in the Belmarsh case concerning detention of terrorist suspects:

I do not in particular accept the distinction between democratic institutions and the courts. It is of course true that the judges in this country are not elected and are not answerable to Parliament. It is also of course true that Parliament, the executive and the courts have different functions. But the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself.

The Attorney General is fully entitled to insist on the proper limits of judicial authority, but he is wrong to stigmatise judicial decision-making as in some way undemocratic. It is particularly inappropriate in a case such as the present in which Parliament has expressly legislated in section 6 of the 1998 Act to render unlawful any act of a public authority, including a court, incompatible with a Convention right, has required courts (in section 2) to take account of relevant Strasbourg jurisprudence, has (in section 3) required courts, so far as possible, to give effect to Convention rights and has conferred a right of appeal on derogation issues.

In any event, contrary to some press accusations, the application of the Human Rights Act by the judiciary has been cautious. The approach to section 2 of the Act, which demands that Strasbourg cases are ‘taken into account’ in interpreting Convention rights, illustrates the restraint with which the judiciary has approached its new powers. In an attempt to avoid being labelled judicial activists, the House of Lords and the Supreme Court have developed the ‘no more, no less’ approach to Strasbourg cases and arguably frustrated the creation of a progressive domestic rights jurisprudence on interpretation of Convention rights in the British context. It is necessary only to look at those decisions of the House of Lords and Supreme Court that have been re-considered by the Strasbourg Court to see that English courts regularly adopt a narrower interpretation of the Convention rights even than the long-stop Court in Strasbourg.

The Conservative Party went into the 2010 general election vowing to abolish the Human Rights Act and to substitute it with a ‘Bill of Rights’. The Coalition Government then set up a Commission to investigate the creation of a Bill of Rights that incorporates and builds on the European Convention. The Commission failed to reach a consensus on what, if anything, needed to change. However some members of the Commission expressed concern that the debate in the Commission was moving towards a discussion of removing rights, and particularly towards withdrawing from the ECHR.

Fury over the Human Rights Act reached fever pitch again as a result of the long-delayed legislation brought forward to give prisoners the right to vote in line with the decision of the European Court in Hirst v UK (No 2) in 2006. The media and many politicians denounced the Convention and called for the United Kingdom to remove itself from the jurisdiction of the European Court. The Government partly responded by using its chairmanship of the Council of Europe to push on with further reforms of the Court to ‘rebalance’ its relations with national courts. This resulted in the “Brighton Declaration” and in turn, two new protocols, the first of which, protocol 15, will impose (amongst other things) further restrictions on access to the Court and, might push the Court to be more “careful” in its judgments (see Chapter 9 for more details). Although the UK’s initial proposals for reform were watered down, pressure for reform has led to a wider ranging review of the long term future of the Court, the consequences of which are difficult to predict.

The judiciary has taken note of the political heat surrounding human rights law and recent domestic decisions from the Supreme Court and Court of Appeal suggest increasing judicial willingness to assert the power of the common law to resolve human rights claims. If the Human Rights Act is repealed, we can expect the courts to turn to other sources of protection for fundamental rights.

These extracts from a lecture by the recently sacked Attorney General, Dominic Grieve, best sums up the postion :

“Indeed looking carefully at the paper my Party has produced on changing our relationship to the ECHR, I am struck by the paucity of concrete examples of Strasbourg mission creep that are identified, to justify a case for change.”
“It is difficult to avoid the conclusion on reading the paper that the real problem for its authors is not so much the interpretation of the Convention by the Strasbourg Court or indeed our own domestic courts but the frustration that an international legal obligation prevents the UK government from being able to ignore judgments when it considers that they are adverse to its view of what is in the public interest.”

“Such a course may be strictly lawful, but its practical consequences are likely to be as devastating both for ourselves domestically as it will be for the future of the Convention.

Domestically, our non-compliance with the Convention calls into question the Devolution settlements for Wales, Scotland and Northern Ireland which enshrine Convention rights as governing all their actions. Parliament at Westminster could, of course, legislate to change the position, but there is evidence that this would be against the will of the devolved administrations.

In the case of Northern Ireland, it is also part of the Good Friday Agreement, an international treaty. At a time when the future of the United Kingdom is still in question and the peace settlement in Northern Ireland still fragile, it opens the prospect of a new area of political discord quite apart from the possibility of our courts having to operate different rights systems in one country.”

“That is why it is inconceivable that we can negotiate a special status for ourselves within it and why our departure as one of its principal creators and supporters will be so damaging to it. It is already the case that countries such as Russia are using the UK position to try to procrastinate on implementing judgments. Indeed the effect of our conduct will go further as the UK’s ambivalence is being cited by countries such as Venezuela in ignoring obligations under the American Convention on Human Rights arising prior to its denunciation of it in 2012 and citing Britain’s approach as a justification and by the president of Kenya over the jurisdiction of the ICC. It bodes ill for all whose lives have been or could be beneficially affected by the existence of the Convention and the work of the Strasbourg Court and by Human rights conventions generally. It flies in the face of all the good work done internationally by the UK government to promote human rights for so long. I have to say that as a Conservative this pains me. Whatever the challenges the Convention has posed and I accept that there are some proper grounds to criticise its operation, the failure of ambition represented in the Paper and the narrowness of its moral and political vision is very disappointing.”

Reform of the Human Rights Act has been under consideration almost since its inception. It was as far back as 2007 that former Prime Minister Gordon Brown published a Green Paper and a statement exploring the possibility of a British Bill of Rights as part of a wider programme of constitutional reform. The JCHR contributed to the debate by undertaking a formal inquiry into a Bill of Rights, which reported in August 2008. It found that the case for a Bill of Rights had been made out, but emphasized that the Bill could not be a vehicle for diluting the protections of the Human Rights Act; rather, it should add to those rights already protected.

In March 2009, the Labour Government formally launched the consultation process into a Bill of Rights in the publication by the Ministry of Justice of its long-awaited Green Paper, Rights and Responsibilities: Developing our Constitutional Framework. The Green Paper set out preliminary proposals for a ‘Bill of Rights and Responsibilities’, but the 2010 general election intervened before the consultation was completed. The Conservative Party went into the 2010 election with a commitment to repeal the HRA but the Liberal democrats wished to see it preserved. The founding document of the Coalition Government resolved this disagreement as follows:

“We will establish a Commission to investigate the creation of a British Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in British law, and protects and extends British liberties. We will seek to promote a better understanding of the true scope of these obligations and liberties.”
The Commission that was established reported at the end of 2012 but there was, however, no consensus on what, if anything, needed to change. However there was concern by some members of the Commission that the debate in the Commission was moving away from the objectives set out in the Agreement towards a discussion of removing rights, and particularly towards withdrawing from the ECtHR.

Scotland, Wales and Northern Ireland

The extent of protection for human rights in Scotland, Wales and Northern Ireland is different from that in England because although the Human Rights Act applies in the same way as in England, the devolution legislation also requires additional compliance with the ECHR. So, for instance, in Scotland, the Scotland Act states that an Act of the Scottish Parliament

“is not law so far as any provision of the Act is outside the legislative competence of the Parliament [if] it is incompatible with any of the Convention rights or with EU law.”

There are similar restrictions on the assemblies and executive in Wales and in Northern Ireland. The repeal of the Human Rights Act itself would not change these provisions. If they remained in place then people in those jurisdictions would have different (more) rights in relation to the acts of the devolved administration (including most public services, including the police in Northern Ireland and Scotland) compared with non-devolved matters like immigration or defence. Where these provisions did not apply – in England – people would have no such rights regardless of the nature of the authority that violated them. Amendments to these devolution provisions require the consent of the relevant devolved Parliament or Assembly.

The situation in Northern Ireland is not only complicated by the law creating the devolution settlement (see above) but also because of the “Good Friday Agreement”. The settlement is an international treaty binding the UK and the Republic of Ireland and would require the consent of both to vary it, not least the political parties in Northern Ireland. The agreement states:

“The British government committed to incorporate the European Convention of Human Rights (ECHR) into the law of Northern Ireland and to the establishment of a Northern Ireland Human Rights Commission.”
The situation is more complicated because alongside this requirement was a requirement to develop a Bill of Rights for Northern Ireland, going beyond the provisions of the ECHR. The Northern Ireland Human Rights Commission consulted widely on a draft Bill and published their final draft in 2008 but there was no political consensus on their proposals and no progress has been made.

The Council of Europe

Article 58 of the ECHR allows a state party to denounce the Convention and withdraw from the jurisdiction of the Court on giving six months’ notice. For ongoing or existing cases a denunciation does not prevent the Court giving judgment or compensation being ordered.

Given the importance of the Convention for the Council of Europe (all its member states have ratified the Convention) the UK’s position as a continuing member would raise difficulties.

The Statute of the Council of Europe states:
Article 3
Every member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, and collaborate sincerely and effectively in the realisation of the aim of the Council as specified in Chapter I.
Article 7
Any member of the Council of Europe may withdraw by formally notifying the Secretary General of its intention to do so. Such with¬drawal shall take effect at the end of the financial year in which it is notified, if the notification is given during the first nine months of that financial year. If the notification is given in the last three months of the financial year, it shall take effect at the end of the next financial year.

Article 8
Any member of the Council of Europe which has seriously violated Article 3 may be suspended from its rights of representation and requested by the Committee of Ministers to withdraw under Article 7. If such member does not comply with this request, the Committee may decide that it has ceased to be a member of the Council as from such date as the Committee may determine.

No state has ever been expelled but Greece, during the time of the military junta, withdrew. Withdrawing from the ECHR itself does not necessarily mean that the UK would not be upholding the values set out in Article 3 of the above statute but the expectation of all members states since the readmission of Greece and the admission of Portugal and Spain has been that they would ratify the ECHR and sign up to the right of individual petition and the jurisdiction of the ECtHR. It might be now that accepting the jurisdiction of the ECtHR is now seen to be implicit in Article 3 but probable this is a political not legal question. The question might well be would the effect of expulsion deter other states from pursuing the same path.

Greece, following the installation of the Colonels’ military dictatorship in 1967, withdrew from the Council of Europe in 1969 before the Committee of Ministers voted for its suspension. The country was readmitted to the organisation in 1974 following the fall of the regime. Turkey was suspended, following the military coup in 1980. In 1984, the country regained its right to vote in the Assembly after democratic elections had taken place. Russia was suspended from the Assembly from 2000 to 2001 as a result of its policies on Chechnya.

At present the ECtHR system is subject to a fundamental and long term review and in November 2013 the Council of Europe initiated a further consultation exercise:

“…holding an open call for information, proposals and views on the issue of the longer-term reform of the system of the European Convention on Human Rights and the European Court of Human Rights. This process follows on from the Brighton Declaration, adopted at a High-level conference in April 2012. It is intended to be open and inclusive, allowing questions to be raised and examined concerning all aspects of the Convention system and the Court.”

About the Author
John Wadham
John Wadham is a human rights expert and solicitor; previously leading INTERIGHTS (Executive Director), Equality and Human Rights Commission (General Counsel), Independent Police Complaints Commission (Deputy Chair) and Liberty (Legal Officer, Director of Law and CEO).

Associate of Doughty Street Chambers, member of the Human Rights Committee of the Law Society, Visiting Senior Research Fellow at Kings College, London; Visiting Lecturer at the University of Auckland and the University of Leicester. Co-author of Blackstone’s Guides on: the Human Rights Act; the Freedom of Information Act; and the Equality Act.

Currently independent consultant and expert for the Council of Europe and others.

– See more at: http://newjurist.com/human-rights-in-the-uk.html#sthash.8uBTgoTY.dpuf

Accountability and independence for public bodies designed to protect and promote equality and human rights

(Article reproduced from “Beyond 2015: shaping the future of equality, human rights and social justice” http://www.edf.org.uk/blog/?p=36975 )

Accountability for arm’s-length bodies is confused, overlap- ping and neglected, with blurred boundaries and responsibil- ities. A taxonomy would simplify and rationalise the structure of the state.1

Meanwhile

The Cabinet Office has tightened controls over and moni- toring of public bodies to improve accountability, including operating the new expenditure controls system that applies
to departments and NDPBs [non-departmental public bodies]: further work needs to be undertaken to establish the impact

of these controls, including on accountability.2

This paper argues that bodies with a role in holding the govern- ment to account, protecting the rights of the citizen or promot- ing equality or human rights should be sponsored, supported and accountable directly to Parliament and not to government departments or to ministers. In ‘Read before burning: Arm’s- length government for a new administration’, the authors suggest a new classification of such bodies:

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The guiding principle is that the classification is determined by the degree of freedom from executive control on appoint- ments, strategy, decisions and budget, which the body needs to be able to discharge its functions.3

Thus:

The first category is the constitutional bodies like the Electoral Commission, the National Audit Office and the Parliamentary Ombudsman. These are deliberately put at the greatest distance from ministers to preserve the independence which is core to their ability to perform their tasks and to protect them from ministerial interference in the exercise of their judge- ment. Their primary accountability is to Parliament rather than to the executive.4

The National Audit Office, the Electoral Commission and the Parliamentary and Health Service Ombudsman already report to Parliament. The Select Committee on Public Administration has recommended that the Information Commissioner and HM Inspectorate of Prisons should also report to Parliament.5 The author has had experience of two public bodies where such better arrangements should apply – the Equality and Human Rights Commission (EHRC) and the Independent Police Complaints Commission (IPCC).6 That experience is the basis of the arguments made here, although there are likely to be other good candidates for the enhanced status recommended.7

The EHRC has a distinctive constitutional role in Britain’s dem- ocratic system in holding the government to account. This was
the opinion of Parliament’s Joint Committee on Human Rights (JCHR) prior to the Commission’s establishment.8 The JCHR said that the EHRC has a similar role constitutionally to the Electoral Commission, the National Audit Office and the Parliamentary

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Commissioner for Administration.9 The EHRC also requires inde- pendence from government in relation to its structures, functions and the exercise of its powers as a requirement of the UN’s Paris Principles for National Human Rights Institutions.10 The EHRC also needs to be seen to be independent: without proper distance the EHRC might be perceived as less likely to take legal action against a government.

In June 2011, when the government was suggesting that
it might amend (reduce) the EHRC’s powers, Rosslyn Noonan, Chair of the United Nations International Coordinating Committee (ICC) (the international co-ordinating body for human rights commissions), wrote to the Home Secretary stating:

Given the particular constitutional place of national human rights institutions in the architecture of the State, it is critical that any amendment to their mandate, structure, powers and functions be carried out through a parliamentary process which is open, transparent and with opportunity for public submissions. Secondary legislation does not meet those criteria and places undue power over the EHRC in the hands of the Executive, whose compliance with human rights standards the EHRC is required to monitor.11

The Joint Committee for Human Rights took a similar view when it was considering the original proposals for the setting up the EHRC, stating:

… the standard model of NDPB accountability is [not] a suffi- ciently outward and visible guarantee of independence from the government to be appropriate to a national human rights commission (or indeed the proposed single equality body, whether or not integrated with a human rights commission).12

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In relation to the IPCC, the European Court of Human Rights, when assessing the independence of its predecessor, the Police Complaints Authority, and the nature of the government appoint- ment of board members (which follow the same model as the IPCC) said:

The Court also notes the important role played by the Secretary of State in appointing, remunerating and, in certain circumstances, dismissing members of the Police Complaints Authority. In particular, the Court observes that under section 105(4) of the Act the Police Complaints Authority is to have regard to any guidance given to it by the Secretary of State with respect to the withdrawal or preferring of disciplinary charges and criminal proceedings.

Accordingly, the Court finds that the system of investi- gation of complaints does not meet the requisite standards of independence needed to constitute sufficient protection against the abuse of authority and thus provide an effective remedy within the meaning of Article 13. There has therefore been a violation of Article 13 of the Convention [the right to an effective remedy].13

The ‘Police Oversight Principles’ developed by police oversight bodies across Europe (and modelled on the Paris Principles) also recommend that police oversight bodies like the IPPC are accountable to parliaments and not to the executive.14

In 2014, Nick Hardwick, then Chief Inspector of Prisons, illustrated the problems with the current arrangements between independent inspectorates and their sponsors:

Told MoJ ministers & officials I won’t be reapplying for my post. Can’t be independent of people you are asking for a job.

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This was his response in a tweet after Chris Grayling (then Secretary of State for Justice) made public his decision not to renew Hardwick’s five-year contract after it’s expiry in July 2015.15

The Public Accounts Committee reviewed the issue of the independence of the criminal justice inspectorates in March 2015 and concluded:

There is a risk that the independence of the inspectorates
is undermined by the current arrangements for appointing Chief Inspectors and setting their budgets. Chief Inspectors were clear that the independence of how they conducted inspections was not in doubt. However, decisions on the appointment of Chief Inspectors, the length of their tenure, and the size of their budgets, are taken by the relevant secretar- ies of state responsible for the sectors under inspection, rather than by bodies independent of that responsibility, such as the Cabinet Office or Parliament. Current arrangements poten- tially pose a significant threat to inspectorate independence.16

and

Changes made by the Home Office to the publication arrange- ments for reports by the Chief Inspector of Borders and Immigration undermine his independence and have delayed publication of his reports. The Chief Inspector of Borders

and Immigration is in a unique position amongst home
affairs and justice inspectorates of directly inspecting his own sponsoring department, the Home Office. The independence of the inspectorate relies on the actions of the Chief Inspector, principally through preparation of well-evidenced and thor- ough reports. But this independence is undermined by current arrangements whereby the Home Secretary now decides when to publish his reports. Since the inspectorate was established

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in 2008, the Chief Inspector decided when to publish his own reports, but this changed from January 2014 to the Home Secretary in the light of legal advice sought by the Home Office on how to interpret the UK Borders Act 2007. Contrary legal advice suggests that the Home Office’s interpretation is neither the obvious nor the only interpretation.17

The IPCC: examples of the need for
greater independence
Immediately after the shooting of Jean Charles de Menezes
at Stockwell underground station the Chief Constable of the Metropolitan Police, Sir Ian Blair wrote a letter to the Home Office (the IPCC’s sponsor) stating that ‘the shooting that has just occurred at Stockwell is not to be referred to the IPCC and that they will be given no access to the scene at the present time’.18 Despite the fact that this refusal by the police to give the IPCC access was unlawful, the IPCC then had to enter into three-way negotiations with its sponsor (the Home Office) and the police before access was granted, leading to a delay of three days.

In the same case the Deputy Chair of the IPCC was summoned one early evening to see one of the three Permanent Secretaries of the Home Office to discuss the merits or otherwise of its decision to disclose crucial information the next day to the family of the deceased at a time when the media was awash with speculation and erroneous accounts of how Jean Charles de Menezes had died.19 The IPCC ignored the advice proffered but the fact that the Home Office felt it could take such a step creates its own difficul- ties and conflicts. It was, of course, this same Home Office that would later decide whether or not the Chair, Deputy Chair and other Commissioners would be re-appointed to their posts.

A last example from the IPCC, follows the investigation of the shooting of Azelle Rodney by the Metropolitan Police. It was clear to the IPCC that, for legal reasons, there had to be a formal inquiry

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into his death under the Inquiries Act 2005 (rather than merely an inquest). However, when the IPCC put this to the Home Office, the feedback from the sponsor unit (also in the Home Office) was that the IPCC was wrong about the law and that no formal inquiry was required.20

These examples suggest that there are two separate problems with the current constitutional arrangements. The first is that the government sponsors for these bodies are too closely concerned with the substance of what they do, rather than with ensuring financial and other procedural accountabilities. There is an obvi- ous conflict of interest in, for instance, the Government Equalities Office (the sponsor for the EHRC), having both a governance
and a parallel (and sometimes conflicting) policy role. Secondly, and more fundamentally, there will always be significant conflicts of interest between such bodies and their government masters because these bodies have a duty to hold government to account and in many cases, to litigate to ensure compliance.

The EHRC: examples of the need for
greater independence
The EHRC suffered from similar pressures from sponsoring civil servants and ministers to those discussed above. Under the Labour government, the author’s experience was that sponsor ministers encouraged the EHRC to use its investigatory powers
in specific and particular areas.21 Although these suggestions were generally viewed as helpful and the resulting reports were important, they originated from the very same people who decided on the appointments and re-appointments of the board and the budget of the organisation as a whole. How happy would the government sponsors have been if the EHRC had refused their suggestions?

The EHRC was caught by budgetary restrictions at the begin- ning of the period of austerity in the public service immediately

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following the 2010 election of the Coalition Government. The government went further than many expected in imposing cuts
in the budget by assuming that the EHRC was merely another
part of the government and that the EHRC would be obliged to follow the recruitment freeze imposed by government on its own departments. Permission from the government had to be obtained before vacant posts could be filled and was only usually permitted by recruiting staff from elsewhere within the civil service. This of course raised issues of independence and also assumed that staff seconded or transferred from government departments would

be able to easily switch their loyalty to a body whose function required a critical assessment of fundamental government policies.22 This in turn created tensions with the United Nations Paris Principles.23 It also raised questions about whether such a restriction on recruitment was indirectly discriminatory (given the age and ethnic minority profile of the majority of civil servants) – a difficult issue for an equality body set up to promote greater fairness and diversity.

At the most fundamental level one of the EHRC’s primary functions was to promote human rights (and specifically the Human Rights Act 1998)24 but at the same time its most senior sponsor was the Secretary of State at the Home Department,
the Rt Hon Teresa May, whose party is on record as intending
to ‘scrap the Human Rights Act’.25 It was her department’s civil servants (as the sponsors) that had the job of helping the EHRC
to do its job, decide its budget, advise her on the appointment
or re-appointment of its Commissioners and Chief Executive. Crucially, they also had responsibility for authorising publication of the Commission’s formal review and report of the UK’s human rights record. Publication of the report was initially delayed in order to correct inaccuracies it contained – and in fact EHRC staff found civil servants very helpful in making suggestions to improve the content, and felt that the report was much better as a result

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of their input. The report was finally published in March 201226 and immediately met with detailed and hostile criticism from some sections of the media – criticism of both the report and the Commission itself.27

It is important that bodies that have a constitutional and democratic role in ensuring that other public bodies, including the government, comply with the law including human rights obligations are – and are perceived to be – completely independ- ent from any government influence. Parliamentary accountability would provide them with the appropriate independence to fulfil this role impartially.

Under the current arrangements, the Government depart- ment that sponsors such non-departmental public bodies
often has a policy role that overlaps with the work of the body
in question and ministers and officials often have a particular interest in the substance of that body’s work, not merely in
issues of governance and financial accountability. There are
no mechanisms to ensure that this does not lead to attempts at different levels to interfere or influence the independent body’s actions. There is a risk that the short-term agendas of government are given precedence over long term and necessary changes to the bodies being regulated or inspected.

Chairs, commissioners and chief executives that are appointed (and subject to re-appointment) by government28 can be pre- sented with real difficulties and conflicts of interest which, in
high profile or controversial cases, can cause considerable soul searching and do not always create the rights circumstances for independent decision making.

It is also likely that a more politically plural board would result from greater independence in the appointments process
as appointments would no longer be made by the majority administration and longer term consistency could be established. In addition, the EHRC had four different sponsor departments in

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its first few years merely because it had to follow its lead minister – the minister for equality – as she or he was relocated, and that minister also had a series of other, larger responsibilities which were attached to a series of different major departments of state.

It is important to note that in the United Kingdom the practice of reporting to Parliament is being effectively used elsewhere for human rights commissions. For instance, The Scottish Human Rights Commission reports directly to (but remains independ- ent from) the Scottish Parliament and has its budget set by the Scottish Parliament.

In England, the Office of the Children’s Commissioner has been made more accountable to Parliament in addition to increasing the powers of the office. However these changes stop short of making the Commissioner directly accountable to Parliament (rather than to a government minister).29

Conclusion

The new government after May 2015, however it is made up, should be encouraged to enhance the theoretical and practical independence of those bodies which promote and protect rights, remove the ability of the government to influence them ‘infor- mally’ and ensure that they are accountable directly to parliament. The review by the Public Bodies Review Team of the classifications of arm’s-length bodies and the report from the Public Accounts Committee provide a perfect opportunity to do this although
the specific legislation which creates those bodies will require significant amendment.

Endnotes

1. Public Administration Select Committee (2014). Who’s accountable? Relationships between Government and arm’s-length bodies. PASC.

2. Skelcher, C. et al (2013). Public Bodies Reform by the UK Government 2010–2013:

Initial Findings. Shrinking the
State. Research Paper 1, p.9. University of Birmingham and University
of Sheffield.

3. Institute of Government, July 2010, p. 55.

4. Op. cit., p. 56.

5. Public Administration Select Committee (2014), Op. cit.

6. The author was previously the Group Director, Legal and was General Counsel of the Equality and Human Rights Commission from 2007 to
2012. He was the Deputy Chair of
the Independent Police Complaints Commission until 2007.

7. Such as the Chief Inspector of Prisons, the Children’s Commissioner and others.

8. Joint Committee on Human Rights, Eleventh report of session 2003–04, 2 April 2004, and Sixteenth report session 2003–04, 21 July 2004.

9. Ibid, Eleventh report, paragraphs 113–143 and Sixteenth report, para- graphs 44–52.

10. OHCHR (1993). Principles relating to the status and functioning of national institutions for protection and promo- tion of human rights. Office of the High Commissioner for Human Rights.

11. Equality and Human Rights Commission (2011). Parliamentary briefing: Public Bodies Bill Committee stage, House of Commons, September 2011. EHRC.

12. Joint Committee On Human Rights, Sixth report of session 2002–03.

13. Khan V UK, 12 May 2001, paragraphs 47 and 48.

14. European Partners Against Corruption/European contact-point network against corruption (2011). Police Oversight Principles. European Partners Against Corruption.

15. The Guardian, 2 December 2014.

16. Public Accounts Committee (2015). Inspection in Home Affairs and Justice, recommendation 1.

17. Ibid, recommendation 2.

18. The Daily Telegraph, 8 November 2007, the letter (‘Letter from Sir Ian Blair to Sir John Gieve following
the shooting of Mr Jean Charles de Menezes’) is available on the Home Office National Archive website webarchive.nationalarchives.go.uk.

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19. IPCC (2007). Stockwell Two:
An investigation into complaints
about the Metropolitan Police Service’s handling of public statements following the shooting of Jean Charles de Menezes on 22 July 2005. IPCC.

20. The public inquiry was sub- sequently held finding that the shooting was unlawful and implicitly criticising the IPCC’s initial investi- gation. See The Azelle Rodney Inquiry report, 5 July 2013, available at http:// azellerodneyinquiry.independent.gov. uk/docs/The_Azelle_Rodney_Inquiry_ Report_(web).pdf. A police officer

has been charged with murder and the trial is pending (The Independent, 30 July 2014).

21. The then sponsor minister suggested three inquiries and these became the EHRC’s first three inquir- ies: Sex Discrimination in the Finance Industry, Race Discrimination in the Construction Industry and Recruitment and employment in the meat and poultry industry.

22. For instance, the EHRC’s assessment of the government’s financial decisions and the extent that they properly took into account the public sector equality duty: EHRC (2012). Section 31 Assessment of the Spending Review.

23. ‘2. The national institution shall have an infrastructure which is suited to the smooth conduct of its activities, in particular adequate funding.
The purpose of this funding should
be to enable it to have its own staff and premises, in order to be independent of the Government and not be subject to financial control which might
affect its independence.’ (OHCHR, 1993, Op. cit).

24. Section 9, Equality Act 2006.

25. For example, ‘Tories to Scrap the Human Rights Act’, 30 September 2013, BBC (www.bbc.co.uk/news/uk-poli- tics-24338921) and ‘Home Secretary Theresa May wants Human Rights Act axed’, 2 October 2011, BBC (www.bbc. co.uk/news/uk-politics-15140742).

26. Equality and Human Rights Commission (2012). Human Rights Review: How fair is Britain? An assess- ment of how well public authorities protect human rights. EHRC.

27. ‘It’s time to shut down this factory of meddling and nincompoopery’, Daily Mail, 6 March 2012.

28. The government does not appoint- ment the CEO of the EHRC but has a veto over appointments made by the board of commissioners.

29. Schedule 5, Children and Families Act 2014.