Official Report 292KB pdf
Good morning. I welcome everyone to the 40th meeting in 2005 of the Justice 1 Committee. We have one apology today from the deputy convener, Stewart Stevenson.
Members should have a copy of the main presentation headings, which summarise the main points of the bill. Perhaps unsurprisingly, given the bill's title, its purpose is to create a Scottish commissioner for human rights. The commissioner will have a promotional and awareness-raising role, rather than an enforcement role.
Thank you—that was a helpful summary.
I will direct my questions at Mr Peddie, whom I thank for his paper. I will cut straight to the chase: why do we need a Scottish commissioner for human rights at all, particularly given that their powers will be promotional only?
Human rights are at the heart of the devolution settlement. As I said, there is a legal duty on public authorities, Scottish ministers and the Parliament to act in compliance with the European convention on human rights. It is therefore important that public authorities are fully aware of what that means for them and of what their obligations could be. Similarly, the public at large should be aware of what it means. We must retro-inform them about their rights and about how they might go about enforcing them.
So we just need somebody to inform us about the issue and to advise public bodies. There is nothing more than that.
No, I think that the bill goes further than that. The bill will give the commissioner the ability to conduct inquiries into particular issues. I mentioned the duty on the commissioner to keep the law and policies and practices under review. The commissioner will therefore be able to consider specific areas that he or she, or others, feel are of concern or are significant. The commissioner will be able to make recommendations on how practices in a particular area might be improved so as to comply better with human rights requirements.
If we believe that there is a need for a commissioner—and I assume that the Executive has established that there is such a need—why will we require the commissioner only to comment or to make recommendations, without giving them any powers of enforcement? Why are we establishing a commissioner rather than a commission, and, if the role is so important, why will the commissioner not have powers of enforcement?
There is already a mechanism for the enforcement of human rights through the legal system. Rights under the ECHR are directly enforceable in Scots law. If people feel that their rights have been breached, they can take their case to court. Whether giving the commissioner direct enforcement powers would add any value is, to be frank, questionable, when there is already a well-established mechanism for people to enforce their rights through the legal system. The bill is more about ensuring that people and authorities know what those rights are, in the hope that helping authorities to be more ECHR compliant will avoid, or at least reduce, the need for any enforcement action.
I take the point that the primary role of the commissioner will be to promote awareness of human rights. That covers a whole range of areas. To your knowledge, has the Executive identified any failings so far?
First, it is clearly important to have a legal mechanism that enforces convention rights, and that is what we have at the moment. However, it is not necessarily the most effective or efficient mechanism for ensuring that public authorities comply with human rights in everything that they do, as it depends on individuals taking cases through the courts. To secure compliance, it would be more efficient to assist authorities with their efforts to comply and therefore, one hopes, to reduce the number of challenges that arise in the first place.
A human rights commissioner might work with the Scottish Prison Service, for instance, if they took the view that slopping out contravenes human rights. Is that the kind of area that is envisaged?
That would be possible, given that the SPS is a public authority.
It is helpful to get examples, but that was not a particularly good one. Her Majesty's chief inspector of prisons has done a good job so far of bringing to the Parliament's attention his repeated and consistent view that slopping out is fundamentally wrong. I cannot remember whether he said that slopping out is a direct breach of human rights legislation, but many members have supported his view and have felt that the Executive should have acted quicker. Regardless of whether slopping out contravenes human rights law, most of us think that it is inhumane. It is perhaps not a good example, but it might help the committee to identify the kinds of areas on which the commissioner could work. However, would that work duplicate mechanisms that already exist?
I appreciate your point. Some time ago, the Executive conducted what was effectively an audit to identify areas that might give rise to possible human rights concerns. We are not sure whether local authorities have done anything similar. The definition of public authorities, of course, includes local authorities and other bodies that are not part of the Executive. Clearly, their services and the things that they do for their communities can raise human rights issues. A significant part of the commissioner's role will be to reach those parts of the public sector that so far may have not received the same attention as particular areas of Executive activity, such as prisons, have received. In the absence of a commissioner who has done that kind of work and in the absence of studies produced by local authorities, it is rather hard to give specific examples. However, examples might include discrimination in the provision of local authority services, such as housing, or in the treatment of people in hospitals or care institutions.
On that point, if someone wants to complain about housing, they can now go to the Scottish public services ombudsman.
As you rightly say, there are a number of commissioners, ombudsmen and other interests out there in different sectors. Perhaps a key difference in respect of the commissioner for human rights is that he or she will not be restricted to a particular sector of activity but will be able to consider the human rights implications of a whole range of activities. For instance, the commissioner might look at a housing issue. Human rights issues that might arise in that area might also arise in other areas of activity. The commissioner will be able to take a broader view than a purely sectoral body, such as a housing ombudsman, might take.
Bruce McFee will need to be brief.
I am more than happy to be brief.
The commissioner will not duplicate the work of the local authorities, given that he or she will not deliver services in the way that local authorities do. Clearly, there is—
I was not suggesting that; I was talking about the commissioner overviewing what a local authority does, to ensure that it is compliant.
That is certainly true. During the Executive's consultations, which involved local authorities, a number of authorities said that they would actively welcome being able to obtain advice from a human rights commissioner as that would assist them in becoming more aware of what their obligations mean in practice and how they can adapt their policies and practices to become more compliant.
Could you put that into context? I would not like this to be represented as—
Bruce, we do not have time.
I wanted to check the statement that local authorities are in favour of the proposal. The evidence is that their support is far from universal.
I am sorry, but I need to move on.
I understand.
I allowed you time to ask a brief supplementary—you took advantage of me.
My colleagues have established that the commissioner will not have any enforcement powers, but will have the power to monitor the law; the practice and policy of public authorities; promote awareness; disseminate information and ideas; and even—in some circumstances—require information. Is there a danger that it will be a huge paper-pushing exercise that will, instead of being of advantage to the public and private sector bodies that are trying to get on with their business, land them with yet more bureaucracy and regulation? The commissioner will have no teeth whatever, so how will he or she enforce a principle or attend to a breach of human rights?
The added bureaucracy and paper chasing would be much more acute if the commissioner was to have an enforcement role, but that is not proposed. The bill would not add to the existing substantive human rights obligations on public authorities. The only additional obligations would be to respond to requests for information from and reports by the commissioner, for example, but that is a small load compared with what compliance with human rights means for the activities of local authorities or other public authorities. Part of the objective is that the commissioner should help public authorities to improve their awareness of their obligations and how to comply with them and, therefore, possibly to reduce bureaucracy rather than increase it.
I am puzzled by that. You suggest that, if the commissioner had enforcement powers, more paper pushing would go on. How do you intend to educate public authorities and private business and to disseminate information and ideas to them?
Precisely how the commissioner would go about that would be a matter for the commissioner, not for us.
Are there any ideas about that? We have a bill in front of us and it is said that we will disseminate information and educate; it would be nice to have an idea of how we will do that.
A specific example might be helpful. The Executive is already funding a non-governmental organisation—Human Rights Scotland, which used to be called the Scottish Human Rights Trust—to provide voluntary sector staff with education and training in human rights issues so that they are better able to take such matters into account in dealing with their clients. That work has been deemed to be successful because of the numbers of people who are going for the training and the interest that has been shown in it. I understand that it is now going beyond the voluntary sector and that people from other sectors are also taking part. The running of training courses on human rights is a specific example, but the Executive undertakes similar activity to inform its staff about human rights so that they are better taken into account in development of policies. That will ensure that policies are convention-rights compliant.
Are we to assume that education, awareness raising and dissemination of information will be limited to a memo going round that says, "We have great training courses that will tell you all about human rights and get you right up to speed with them"?
There will have to be far more than circulation of a memo. There are real issues with measuring the effectiveness of such activities, because human rights is a soft area in which it can be difficult to develop measures of activities' effectiveness. Nevertheless, it is important that such activity be engaged in. It is not only about telling people about human rights; some kind of follow-up is required to ensure that human rights are being taken into account. If one is running training for staff in an authority or a particular sector, it might well be appropriate to revisit them a year or three down the line to try to ascertain what effect the training has had on service delivery and policy development.
I will leave that line of questioning, but I am far from satisfied that we have a clear picture of how many pieces of paper and e-mails will cross people's desks and end up detracting from their core purposes in service provision and enterprise. I really would like more on that at some time.
We took close account of the Paris principles in developing the proposals, because the Executive wishes the commissioner to be perceived as an effective human rights institution and, potentially, to secure accreditation as such at the United Nations, which I understand the Northern Ireland Human Rights Commission, for example, already has.
Promotion and protection of human rights are key principles, but the protection angle has been left out. What is the rationale behind that?
That is true, but that does not necessarily mean that human rights institutions are necessarily expected, under the Paris principles, to have a direct enforcement role. Several human rights institutions throughout the world do not have such a role.
What is your rationale for leaving out that role?
As I said, a legal mechanism already exists for enforcement of human rights in domestic courts, which includes being able to challenge acts of Parliament and acts of Government. Therefore, it is questionable whether a separate legal enforcement power for the human rights commissioner would add significant value. Under the Paris principles, the prime role of human rights institutions is to promote awareness of and respect for human rights. That has been the guiding principle behind the proposals in the bill.
I am a little puzzled by that. You say that the promotion aspect is right up there and that we have other people who can do the protection bit. In response to a question from—I think—Bruce McFee, you said that some of the people who would do the protection work, such as Her Majesty's inspectorate of prisons or other ombudsmen, are directly responsible to ministers. You almost suggested that there is less independence. The commissioner will be responsible to Parliament and will, therefore, be more independent. Does not that translate into the argument that the commissioner should have an enforcement role?
The Paris principles mention independence from Government as being one of the key principles of a human rights institution. The other people whom you mentioned are not concerned solely with human rights, but are clearly seen as having an independent role. However, the fact remains that not having a direct enforcement function is not incompatible with the role of promotion and protection of human rights. The Paris principles do not contain a specific expectation that a human rights institution should have legal enforcement powers. That is not in the list of key features that are looked for in human rights institutions.
The commissioner will deal with matters that fall within the devolved remit, but I understand that, under the Equality Bill that is going through the UK Parliament, the commission for equality and human rights will have enforcement powers—the bill makes provision for such powers in relation to notices and action plans. In other words, if human rights have been breached in relation to a reserved matter, the appropriate body will have enforcement powers, but if human rights are breached in relation to a devolved matter, the appropriate body will not have such powers.
It is important to differentiate between the equality and the human rights aspects of the Great Britain commission's remit. As I said, on equality, the Great Britain commission will take over the enforcement role that is presently carried out by statutory bodies such as the Commission for Racial Equality. Clearly, it will have an enforcement role, because that role already exists under equality legislation. The references to items such as action plans relate to the equality side of the remit rather than the human rights side.
You are telling me that if the Scottish Commissioner for Human Rights Bill and the Equality Bill go through in their present form, there will be no enforcement procedures for dealing with human rights matters, whether they are devolved or reserved, other than recourse to court.
Do you mean recourse to court by individuals?
I mean recourse to court by individuals or organisations.
There is a difference between the two proposed regimes. A provision that was not part of the original proposals for the GB commission but was introduced quite late on in the passage of the Equality Bill would indeed give the GB commission the power to bring legal proceedings in its own name in connection with alleged breaches of human rights. On that particular point, there is a difference.
It is a substantial difference.
I would not argue with that; it is a substantial difference. The Executive's proposals do not provide for the Scottish commissioner having that role for two main reasons, one of which is legal and one of which is broader. The legal reason is based on what is normally known as the victim test, whereby a legal action for an alleged breach of human rights can be brought only by the victim of that breach. Under the Human Rights Act 1998, that right is restricted to the victim of such a breach, and because amendment of that act is a reserved matter under the Scotland Act 1998, it was felt to be outwith devolved competence to give the Scottish commissioner an ability similar to that which is now proposed for the GB commissioner.
You would regard taking a test case to court as being a fairly unimportant part of any commissioner's remit, if indeed the commissioner had powers that permitted that.
If you are asking whether I think that bringing test cases would in itself be unimportant, I would not necessarily say that it would. I am really saying that there is already a mechanism for doing that in the domestic courts, so there is no need to give the Scottish commissioner such a role, especially as it is thought that the Scottish commissioner will have a promotional and awareness-raising role and that it should focus on that.
In your answer to Margaret Mitchell, you suggested that you had found examples of other countries and Governments that had set up a commission or commissioner that would carry out a similar function to the one that will be performed by the proposed Scottish commissioner. I would be grateful if you could furnish the committee with that list of countries.
We will provide that list.
I want to ask one or two questions about inquiries, which are dealt with in sections 5 to 10 of the bill. It seems that the commissioner will be able to carry out only a highly restricted range of inquiries. The restrictions, as set out in section 6, on the scope of any inquiry are extensive.
The example that immediately springs to our minds clearly does not relate to local authorities. One might think of the state hospital at Carstairs, which I think is the only institution or authority in Scotland that operates as it does in its particular area. That is not to say that there are necessarily a large number of such examples, but they do exist. If, for instance, the commission wanted to examine human rights aspects of the care and treatment of severely mentally ill people who are detained in secure institutions, it would look at Carstairs. Because the state hospital is the only authority that runs such an institution, it is of necessity the only one that the commissioner would look at. That is the sort of situation that is referred to.
Yes, but the bill talks specifically about
No—that is not the way we see it. The reason why the two conventions against torture are specifically mentioned in section 6 is fairly technical. I apologise for that. The starting point in the bill is that the reports of any inquiries that are conducted by the commissioner will be published. However, it is envisaged that it is at least possible that the commissioner might undertake inquiries as part of monitoring of compliance with, let us say, the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, at the request of the relevant international body. In that case, the commissioner would essentially be conducting the inquiry in accordance with the expectations of that international body, but that body would be responsible for publishing a report; the commissioner would not publish a report separately.
Section 6(6) refers to the optional protocol for the convention against torture, which allows each member state to designate bodies under their jurisdiction as national preventive mechanisms, which will undertake inspections of places of detention on behalf of the UN Committee against Torture.
My third question relates to section 8, which is on "powers of entry, inspection and interview". I suppose that this is a simple question. Why is 14 days' notice required? That seems a very long time. If someone thinks that an abuse is going on somewhere, they will surely want to be in on it as quickly as possible.
I understand that point, but it is important to remember that inquiries are to be general in nature. I think that the phrase in the consultation paper was "generic or sectoral".
Let us take the example of someone who approaches the commissioner and says that they think that there has been a serious breach of their human rights, which the commissioner decides to investigate. After the commissioner has examined the matter in private, he may decide that he needs to visit the prison. We are saying that he needs to give the prison 14 days' notice so that it can ensure that it can identify him correctly. I presume that everyone would know the commissioner and that he was interacting with prisons, in any case. Is the suggestion that if the commissioner knocks on a prison door and wants to ask questions about conditions in respect of a person who wants the commissioner to investigate his human rights, the prison will be able to say that the bill says that he must give 14 days' notice?
In practice, we would expect the commissioner to establish a close working relationship with other bodies, such as prisons. It is possible that, in practice, 14 days' notice would not be required. However, we are talking about the commissioner being able to enforce a legal right of entry. We thought that it was appropriate to allow 14 days to elapse before the commissioner sought to exercise that right. In practice, the commissioner may often get access sooner, but in the context of the legal right to entry, it seemed reasonable to introduce a period of notice of 14 days. We should remember that failure to comply with such a request can enable the commissioner to go to court to seek enforcement of that legal obligation. Such situations are potentially serious, so it is entirely appropriate that there be a period of notice before an institution or authority might be accused in court of having failed to allow the commissioner to exercise their legal right of access.
Section 6(8) of the bill defines an "institution". I do not think that there is a similar definition of "Scottish public authority". It would be useful if you could briefly give us some information on that. Section 6(3) of the bill states:
I do not think that your explanation is correct. The provision that an inquiry should concern policies and practices, rather than the case of an individual person, applies equally to inquiries into institutions and inquiries into public authorities.
Section 6(3) does not say that. It refers to a "Scottish public authority". Section 6(8) goes on to define an "institution".
The overall power to conduct an inquiry, which is defined in section 5(1), would be used to conduct an inquiry into the policies and practices of a public authority rather than into an institution. The point about institutions takes us back to the earlier discussion about international conventions. The UN committee against torture, for instance, would probably stipulate which places it would expect the commissioner to visit as part of his or her monitoring activity. The committee would say that the commissioner should visit Barlinnie jail, Aberdeen prison and the police cells in Pitt Street, or something like that. It is that sort of activity that we are talking about.
I am sorry to press you, but there is a specific definition in section 6(8). It states:
Perhaps I can clarify the matter. The definition of "institution" in section 6(8) is not intended to be read as a definition of a different type of body from Scottish public authorities. In that context, institutions are the kind of places that are run by Scottish public authorities. For example, the inquiry would be into the Scottish Prison Service as the Scottish public authority, but the power of access to institutions would relate to a specific prison such as Barlinnie. The two are not meant to be read as exclusive groups.
So, are we saying that institutions—
I think that you have had a go at that—three goes, in fact. I want to go back to Mike Pringle's question. I thought that your supplementary question was going to be on the 14 days issue, which concerns me a wee bit.
The committee against torture does not turn up unannounced at a prison. The respective government will know weeks, if not months, in advance what the programme of visits is going to be.
So, the UN committee against torture cannot turn up unannounced. If that committee suspected that torture was going on at Barlinnie prison, it would want to go there immediately. If it had to wait 14 days, any evidence of torture could be cleared away. Do you not see a problem in that?
It should be remembered that inquiries will be held into policies or practices rather than into individual complaints. Those are not the kind of things that could be swept under the carpet even in 14 days. Let us take the example of slopping out. If the commissioner said that they wanted to go to a specific prison to see how slopping out operated in that prison, the prison would not end slopping out within 14 days just because of the commissioner's visit; slopping out would still happen. It would also be open to the commissioner to ask for access sooner than that. We are talking purely about the legal right of access that is enforceable by going to the courts.
The reality is that any member of this committee would be unlikely to be turned away from Barlinnie prison if we wanted to go in to see whether there was evidence of torture. Andrew McLellan, the chief inspector of prisons, would not be turned away either. I understand that we are talking about a power of entry for which there is usually a legal period before a warrant can be obtained but, using prisons as an example, it seems a bit odd. It is unlikely that I would be turned away from Barlinnie if I wanted to see what was going on there.
It is unlikely that the human rights commissioner would be turned away, either.
Yes, but he or she might have a problem if the bill were to insist that an application be made 14 days in advance for a warrant or permission to inspect the premises. It would almost be better not to have it.
I do not think that it would be better not to have the provision. Do you mean that it would be better not to have the time limit?
I agree that if the human rights commissioner were to turn up at a prison because they suspected that torture was being carried out there, it would be unlikely that they would be turned away, but I am not sure about having the requirement to give 14 days' notice in the bill.
The requirement to give 14 days' notice is about the exercise of the legal power. It is about the commissioner going to the institution or the authority and saying, "I am exercising my legal power to obtain access." That does not preclude the commissioner going on an informal basis, as the prisons inspector or prison complaints commissioner would do, and saying, "I want to visit such-and-such a prison this afternoon or tomorrow." We would expect that, in practice, the commissioner would obtain access.
Your introductory comments were helpful, but we have a number of points of clarification. My question is about the power to intervene in civil legal proceedings, which is outlined in section 11. Do you agree that the scope to intervene is quite narrow? For example, not even children's hearings are included. Section 11 states that the commissioner could intervene where matters are deemed to be in the "public interest". Who would decide whether a matter was in the public interest and on what grounds?
I do not accept that restricting to civil proceedings the power to intervene means taking a narrow view; it is a wide view because the power relates to the full range of civil proceedings. I will come back to the point about children's hearings.
Will you also answer my question about the public interest test?
It seems entirely right that there should be a requirement to satisfy some kind of test whereby the commissioner decides whether it is appropriate to intervene in a case.
Further to your point about the children's hearings system, I appreciate that some hearings might be seen as criminal proceedings but others are more like civil proceedings. Is any consideration being given to how the commissioner could take part in hearings that might be considered to be civil proceedings?
The point is that children's hearings need to be considered as a class of proceedings rather than as a series of individual cases. I am not an expert on children's hearings, but I believe that one could not necessarily say in advance whether a hearing would conclude that it was appropriate to make supervision a mandatory requirement. Therefore, the decision on whether it was permissible for the commissioner to intervene could not be made by pre-judging the conclusion that the hearing might reach. It seems better to consider children's hearings as a whole, given the issues that they can consider and the decisions that they can take. That is the basis on which we decided that intervention would not be appropriate.
Why does the bill make no provision for the commissioner to intervene in appellate proceedings, criminal proceedings or references to the Lord Advocate?
On whether the commissioner should be able to intervene in criminal proceedings, it is true that there were differing views. However, as criminal proceedings are substantially different in nature from civil proceedings, it was considered inappropriate to allow intervention by a third party in criminal cases. It is fair to say that there is much less precedent for any third-party intervention in the Scottish courts than in the English courts, but such intervention as has taken place has been in civil rather than in criminal cases.
I understand why you are not getting involved in children's hearings, but what will be the commissioner's role in regard to tribunals? More cases come in front of the myriad tribunals that we have in Scotland than before any other court. My understanding is that tribunals are almost exclusively civil.
I do not know the figures, but it would not surprise me if you were right about the number of cases. The tribunals deal with reserved issues such as immigration, social security and employment, on which the Great Britain commission would have a role but the Scottish commission could not.
Do all tribunals throughout Scotland deal only with non-devolved issues?
That is our understanding—all those that we have been able to identify relate entirely to reserved matters.
My question is about the power to co-operate. Given the split between devolved and reserved remits that has already been discussed, it might be argued that a power, rather than a duty of co-operation, is insufficient. How do you anticipate that that will work in practice?
The commissioner is largely there to help authorities to comply with their human rights obligations. We hope and expect that public authorities will co-operate with the commissioner. However, to place a statutory duty upon other commissioners to co-operate would not be necessary, because that is the kind of issue that ought to be addressed by discussion between the bodies concerned. The prospect of legal actions between authorities would not be helpful. We have a provision in the bill to avoid unnecessarily duplicating activities undertaken by others, so there should anyway be discussion about how bodies ought to co-operate so as to get best value for their activities.
The structure of the set-up concerns me because of the amount of co-operation that will be needed. Given that the structure of a Scottish human rights commission was an area of disagreement among respondents to the Executive's second consultation, could you explain further the rationale for the option decided upon?
Are there particular concerns that you want to raise in connection with that or do you want me to go through the general structure?
Could you go through the general structure first? For instance, I was struck by the change from commission to commissioner and I would like to know what was behind that.
It is true that both the public consultations referred to a commission as opposed to a commissioner. The reasons for the change are, first of all, that it is in line with the precedents that have been set for the other commissioners established since devolution, be it the information commissioner, the standards commissioner or the public appointments commissioner. There is now a well-established model of structure and accountability for commissioners and it seemed sensible in this case, not least in the interests of clarity, to follow that established model. We did not identify a clear policy reason for establishing something different. Secondly, if we were to create a commission as a free-standing body it would probably be necessary to have additional provisions in the legislation on the constitution and operation of that body. That might introduce unwanted complications in relation to how the body would operate, which would not add any value to the exercise of its functions.
What about the numbers at which you have arrived? One presumes that a commission would have more full-time workers. You are suggesting that there should be one commissioner with deputy commissioners. Who will decide how many deputy commissioners will be appointed, for example?
The question whether to have a commission, as opposed to a commissioner, would not necessarily have impacted directly on the number of commissioners and deputy commissioners. If we had a commission, it would not necessarily follow that there would be a larger number of commissioners. A range of views were expressed about how many commissioners it would be helpful to have. The Northern Ireland Human Rights Commission has about 14 commissioners, but most of them operate on a part-time basis. A very large part of the Northern Ireland Human Rights Commission's work is case work driven. That element, which drives up the number of commissioners, is not envisaged for the Scottish commissioner.
It is quite confusing. I would like to think that the decision about the structure will be driven by policy, rather than by budget constraints or status.
I will deal briefly with the point about resources. I did not mean to suggest that the limitation in the number of commissioners was driven primarily by a desire to keep costs down per se. However, we did not want there to be an undue tipping of the balance between resources for engaging in activity and resources for paying commissioners. We did not want to require there to be a structure that might be top heavy and might take away resources that would better be used for work in the field.
My question is on accountability, but it relates to Marlyn Glen's question about structure. How will the commissioner arrive at policy decisions? Suppose, hypothetically, that a discussion arose about whether smoking is a human right. The commissioner, who will not be accountable, might arrive at the view that smoking is a human right. What would be the process for arriving at the decision? Do you expect a joint decision by the commissioner and the deputies, or will there be a process of consulting with people and then arriving at a decision?
It is difficult for the Executive to go into detail about how the commissioner and his or her office should go about their business after establishment, because many of those issues are for consideration by the commissioner in discussion with the Scottish Parliamentary Corporate Body. It will primarily be for the commissioner to take such policy decisions, after consulting as appropriate, as, for instance, the Executive is expected to do. The commissioner will be able to make recommendations and comments on policies, practices and the law, but they will not have a legal power to enforce the recommendations directly. However, I expect that, if the commissioner arrived at such a judgment, they would need to be able to justify it when questioned rather than just come up with ideas out of the blue.
So the commissioner will be independent in the main, except in relation to the money that they spend. How will the commissioner's decisions be questioned? Is the issue just the credibility of the decisions?
The issue is probably largely one of credibility. We should remember that the commissioner will make recommendations. We expect credibility to flow partly from the status of the commissioner and his or her perceived expertise or abilities in human rights, and partly from the recommendations themselves. If the commissioner made recommendations that people had problems with or thought were ill founded, I would expect them to respond and to say where and why they thought the commissioner was wrong. Any action that is to be taken on the commissioner's recommendations will be, depending on the context, for the public authorities concerned or perhaps for the Parliament in creating legislation. Any recommendations that the commissioner makes will not be legally binding and will be discussed before they go any further.
I understand that, but I am thinking about the power to intervene in civil legal proceedings. In theory, if human rights issues arose in a tobacco case, the commissioner could intervene if they had something to say, which might be controversial. I imagine that if we create a commissioner for human rights and they declare that something is a human rights issue, that must have some weight. It is all very well if you agree that all torture is against human rights, but there might be one or two areas on which we do not agree. It would then be a question of public debate between elected members and public authorities that might take a different view. Is that how the commissioner will work?
I could offer something on that. The commissioner making statements and exercising informal functions is one thing, but with respect to exercising their formal powers to conduct inquiries or gathering information for those purposes, it would be possible under the terms of the bill for the exercise of those powers to be challenged if they were felt to be outwith the commissioner's remit. That is the first level of accountability. The commissioner will not have a free hand to decide what is or is not a human rights issue because the established remit of their job is human rights in relation to those international instruments that the United Kingdom has ratified.
So you would expect any decision or view of the commissioner to have foundation in a treaty or convention.
The commissioner's remit clearly defines human rights as those contained in international instruments that the UK has ratified. That is what the commissioner would look to to provide the parameters of their role.
I will use smoking as an example, although it is not a very good one because we have already legislated on it. Some people believe that smoking is a human right, but there is no treaty that could be relied on to back that up; so, if the commissioner made a declaration on that, they would be acting outwith their remit.
I am afraid that I do not know enough about smoking to be able to say whether it falls within the remit of any of the international instruments that the UK has ratified.
I should add that advice coming out of a public body such as the commissioner is a public act and someone who is affected by it could challenge it through a judicial review. It is tricky to judge how successful that would be, but there would be such a right of challenge.
To finish on this point, the convener is right to say that this is an issue of credibility. If the commissioner was to make a habit of making recommendations or other pronouncements that were widely perceived to be ill-founded or just plain wrong, that could prejudice the commissioner's ability to perform his or her functions properly.
Before I ask my questions on finance, I want to follow up the points that have just been made about the commissioner. In evidence from the children's commissioner, we were told that there is nothing in the bill about removal from office if the commissioner goes outwith their bounds. Can you point out where that is mentioned?
A commissioner or a deputy commissioner can be removed by Her Majesty at the request of the commissioner or deputy commissioner, or if the Parliament so resolves.
Sorry, can you say again where that is?
Yes. The Parliament can resolve that a commissioner or a deputy commissioner be removed.
But where is that in the bill, please?
That is in paragraph 4 of schedule 1.
Thank you. I shall read that schedule later.
The matter is dealt with in the financial memorandum. As members may be aware, it was also discussed by the Finance Committee last week. The starting point in relation to the figure of £1 million was our looking at similar bodies elsewhere, including the Human Rights Commission in the Republic of Ireland and the one in Northern Ireland. That gave us a feel for the activity that the commissioner could reasonably be expected to engage in and what would be a reasonable provision, in comparison to provision for other bodies, to enable that activity to be undertaken. That is how the figure of £1 million was arrived at. The Executive has said that it will provide an additional £1 million of funding from 2006-07 to meet those costs.
Okay. Will those costs include provision for training, or will that be one of the things that might be charged for?
We expect the commissioner to engage in training and similar activities. The financial memorandum gives an estimated breakdown of costs, albeit under relatively broad headings, relating to how the budget of £1 million might be spent. More accurately, perhaps, it details what we would expect a commissioner to spend, at least in the first two years of his or her operation.
You are absolutely right that the commissioner must take a view on how the funding is spent. I pursued the training aspect because, in response to an earlier question from Margaret Mitchell, you referred to Human Rights Scotland, which is funded by the Executive to provide training. When the commissioner is established, will the funding for that organisation stop?
The Human Rights Scotland project that we fund is a limited, three-year project in its first financial year, so it is due to come to an end in two years' time anyway.
That is at much the same time as the commissioner is to be set up.
That is largely by coincidence.
A happy coincidence.
The funding was not timed to end when the commissioner is established. The two are considered to be separate programmes.
That was probably a side issue.
Yes. The initial budget allocation for the commission from the Northern Ireland Office was in the region of £0.75 million, but, after a year or two of operation, that was discovered to be inadequate. The budget has since gone up to about £1.3 million. In examining other bodies such as the Northern Ireland commission, we have taken into account the fact that they have different powers and remits, depending on their contexts. It is significant that, because of the context in which the Northern Ireland commission was established, it has a casework role, which is a particularly resource-intensive activity. We estimate a lower annual cost for the Scottish commissioner, because they will not have such a role.
Can you give a bit more detail on how the commissioner's power to charge for certain services would work?
That capacity is included in the bill for the commissioner to make use of should suitable opportunities arise. In our financial planning, we have not counted on the commissioner generating any income; we assume that the commissioner will be able to fulfil their statutory functions with the budget of £1 million. However, to give an example of the type of services for which the commissioner might charge, soon after the Scottish information commissioner was appointed, he undertook several seminars and workshops throughout Scotland to promote the Freedom of Information (Scotland) Act 2002 and his role. I believe that attendance at the events was charged for on a sliding scale, with private individuals being charged the maximum, down to public authorities and voluntary bodies at the bottom of the scale. That is the type of service for which the commissioner might charge.
I want to play devil's advocate for a moment. You might have noticed the conditional tense creeping into some of our questions—they have not been about what will happen when the commissioner is established, but whether the post should be established at all. As I understand it, under the Equality Bill that is going through the United Kingdom Parliament, the Great Britain commission will be able to act on devolved human rights issues only with the permission of the Scottish commissioner. That presumes the establishment of a Scottish commissioner, so we seem to be in a catch-22 situation. Where would it leave human rights in Scotland if the Scottish Parliament decided not to go ahead with the bill? For example, would it be possible to amend the UK bill?
We worked closely with our colleagues in the UK Government on the drafting of the provisions to which you refer in the Equality Bill. We were careful not to make any assumptions about the creation of a Scottish commissioner, although we of course knew that a commissioner was proposed. The wording in the Equality Bill does not refer explicitly to a Scottish commissioner for human rights, because no such commissioner exists. If I may paraphrase, it refers to a person or body empowered by the Scottish Parliament to have a human rights remit. It is for the Parliament to decide whether there should be such a specifically Scottish person or body. As I mentioned, the GB commission cannot take action in relation to devolved human rights issues without the consent of that person or body. If the bill were not enacted and there were no Scottish commissioner, there would be no body with a remit in respect of devolved human rights matters in Scotland that was equivalent to the remit that the GB commission would have in relation to reserved matters.
Is it possible to change the UK legislation, as it is still before Parliament?
The UK legislation is almost at the end of its progress. The opportunities for changing it have probably passed. Presumably, it would be possible for it to be amended subsequently by primary legislation at Westminster. I am not sure what you are getting at. You may have in mind amending the Equality Bill in order to give the GB commission a remit in relation to devolved human rights matters as well as reserved ones. Given that those issues are within the competence of the Scottish Parliament, it would appear that such a move would be at odds with the devolution settlement. The Equality Bill was framed as it was precisely because, under the settlement, it is for the Scottish Parliament to confer that kind of remit on a person or body.
It is interesting that in our discussions we have returned to the fundamental principle. However, as you have said, the fundamental principle has already been established. Thank you for your answer.
If you mean the fundamental principle of having a Scottish commissioner, I think that it has not been established. If it were proposed instead to give the GB commission a remit in relation to devolved matters, clearly that could be done and the Scottish Parliament would be able to agree to it. I suspect that that would require a Sewel motion or whatever the mechanism is now called. The Parliament would have to agree to confer the function on a GB body. Given that the GB commission will be accountable to UK ministers, some eyebrows might be raised at such a suggestion. That is why it is regarded as appropriate for there to be a specifically Scottish body.
I should have introduced our adviser, Professor Jim Murdoch, at the beginning of the meeting. You probably know who he is, in any case. Jim has a suggestion regarding the point that we are discussing.
I wonder whether the point could be addressed at clause 7(1) of the Equality Bill by inserting the words "not exercised". The clause would then read, "The Commission shall not take human rights action in relation to a matter if the Scottish Parliament has not exercised legislative competence". Would that address the issue?
I need to be somewhat careful, as we may be entering lawyers' territory. The basic principle that a provision in the Westminster bill framed in such terms would confer a function relating to a devolved area on the GB commission would remain, with all the implications that that has, including a Sewel motion or its equivalent, to provide for the situation unless and until a Scottish commissioner is created. I do not think that the suggested amendment would address that specific point. It would, I suppose, address the situation in which, if the creation of a Scottish commissioner were deferred or did not happen at all, there would at least be a commission—albeit a GB body—that was able to exercise that function. However, we are still left with the fundamental principle that it would not then be a Scottish body that was accountable to the Scottish Parliament. Such a provision would confer on the commission a devolved function, which would be within the Scottish Parliament's competence and to which the Scottish Parliament would have to agree.
The Parliament passed a Sewel motion recently and I had understood that there was provision in the UK bill for what would effectively be a Scottish commissioner to be appointed by the UK authorities. That person would have regard to reserved matters but would, in certain circumstances, be able to consider devolved matters if they were seen to overlap. Will you confirm whether that is the case?
The issue about a Scottish commissioner in that context relates to prime responsibility for Scottish matters in relation to the GB commission. In relation to the human rights side of the remit, the GB commission will be unable, under the bill as framed, to take action in the devolved sphere without the consent of the Scottish commissioner or equivalent.
It has specifically been said that, in instances of overlap, the GB commission will be competent to consider devolved issues. That debate was only a few weeks ago and is on the record.
I am not familiar with that debate. The clause in the UK bill that relates to devolved human rights functions has not been changed, but we will be happy to get back to you on the matter.
That would be appreciated, because it is germane to the issue. Also, you refer to a Scottish committee being set up in Glasgow. I would like to know more about that. However, I wish to move on to what is disturbing me most. The bill at Westminster is at the committee stage. How long will that take? What is the role of the committee? Is it scrutinising the bill? Is it still making changes? When do we expect the bill to complete its progress through Parliament? Why are we considering the Scottish bill before we know the final outcome of the UK legislation?
My understanding is that the UK Equality Bill is near the end of its consideration. It commenced in the House of Lords and had its Commons committee consideration last week or the week before last. We are just about at the end of the road. There is the Commons report stage still to come, but the scrutiny is virtually complete. The Equality Bill has been the subject of separate discussion in the Scottish Parliament in connection with the Sewel motion.
That is a different question. I am asking whether there is provision in the Equality Bill for creating a UK Scottish commissioner who will consider reserved matters and, in some instances, the overlap into devolved issues.
We recognise that you are not responsible for the UK bill; you are responsible for telling us about the Scottish bill. It would be helpful if you could clarify which areas of competence we transferred to Westminster in relation to consideration of the bill.
I can certainly do that.
You may answer the question—I just wanted to make it clear that you are not dealing with the UK bill. You can help us with it if you can, but you are here because you have responsibility for the Scottish bill.
It would be helpful to cover all those issues in written responses. We will get back to the committee as quickly as we can with those.
That brings us to the end of those lines of questioning. I thank Brian Peddie and his team for their presentation and for answering all our questions. I am sure that we will have further questions as we take evidence and I am sure that you will not mind answering any other questions of clarification if we have any.
Indeed not.
I welcome Simon Braunholtz, the director of MORI Scotland, who will make a brief presentation to the committee on MORI's findings on the Scottish Commissioner for Human Rights Bill.
Thank you for asking me along this morning. The study that we conducted for the committee was brief, so my evidence might not be as extensive as that from the previous panel.
I understood that you were going to make a presentation, so I think that you should just continue.
That is fine. When people are asked what the term "human rights" means to them, the most common first response is to do with equalities—17 per cent of respondents mentioned something to do with equalities.
Thank you. It is useful for us to see public attitudes towards human rights. I am sure that the survey will be informative for our work on the bill at stage 1. Do members have any questions for Simon Braunholtz?
I have a brief question, although I am not sure whether you will answer it, as it is about your impression of the results. In your opinion, did a significant number of respondents equate human rights with equality and see those things as one issue? Was there a crossover on that? That might not be possible to quantify.
That is one of the interesting things that came out of that first, free-ranging question, for which we did not pigeon-hole people into certain responses but allowed them to answer in whatever way they liked. When we asked people what human rights meant to them, the most common association given was with equalities. Some 17 per cent—one respondent in six—said that they associated human rights with some form of equalities.
Can you clarify whether that was 17 per cent of those who stated a view? I think that the column adds up to 115 per cent.
The total will add up to more than 100 per cent because people could mention more than one thing in their response. For example, they could mention something else in addition to equal rights. Some respondents had, as it were, a mosaic image of human rights rather than a narrow definition.
I particularly liked the response "European mumbo-jumbo". Who thought up that response?
Only 1 per cent of respondents.
I see that "More work for lawyers" was given by only 1 per cent of respondents. That seems a very low score for that response.
It was probably given by a lawyer.
Only 2 per cent said that the creation of such a body would benefit "Those in power", which people might think means MSPs.