Brian Dan Migowe
It is almost a year since the UK Supreme Court dismissed an appeal by the Northern Ireland Human Rights Commission (‘NIHRC’), a decision that ultimately decided the NIHRC’s legal challenge to the compatibility of the Termination of Pregnancy Laws in Northern Ireland with the European Convention of Human Rights (‘the Convention’). In this unprecedented judgment of 7 June 2018, one of the two issues before the Court raised a question of concern not only for Northern Ireland but also for the rest of the United Kingdom: whether the NIHRC as statutory national human rights body had standing to bring such proceedings?
The NIHRC took the case in its own name based on its understanding of its own powers and the ramifications, for example, of a woman facing a fatal foetal abnormality or pregnancy resulting from a sexual crime having to face the additional burden of a court action. The NIHRC’s standing to institute or intervene in human rights proceedings in order to challenge the compatibility of Acts of Assembly and subordinate Northern Irish legislation to the Human Rights Act 1998 (‘HRA’), was, on a majority pronouncement of the bench, rejected, ending the appeal process.
However, that was not the end of the matter. Unusually, the Supreme Court expressed its views on the substantive compatibility issue, finding the abortion law in Northern Ireland to be in breach of Article 8 of the Convention (the right to respect for family and private life) and a woman’s right to personal and bodily autonomy in cases of fatal foetal abnormalities and for victims of sexual crime. Furthermore, the Supreme Court judgment presented the NIHRC with the opportunity to seek an appropriate legislative amendment to put beyond doubt its power to raise cases in its own name in respect of the compatibility of primary legislation with the HRA. This is yet to be realised.
This case accordingly raises significant questions about the ability of statutory national human rights commissions in the UK to take test cases or cases in their own names on behalf of victims. Unlike the NIHRC, for which the question of standing remains unresolved, the Scottish Human Rights Commission (‘SHRC’) has no powers to raise or support legal proceedings. While its mandate is based on the general duty to promote awareness, understanding and respect for all human rights in Scotland, section 6 of the Scottish Parliament’s Scottish Commission for Human Rights Act 2006 forbids the SHRC from providing assistance to a party in legal proceedings. The Act contains no power for the SHRC to bring proceedings in its own name. Section 14 of the Act permits the SHRC to intervene in civil proceedings, but only with leave or at the invitation of the court.
Invariably, any debate today on the limits of the powers of statutory human rights commissions would invite both supportive and critical comments, as was the case a decade ago in ‘the consultative process’ on the remit of the SHRC. Importantly, views were expressed at that time in favour of an institution with powers to take cases in its own name, as this was expected to add a critical capacity to the SHRC’s role in supporting the development of a human rights culture in Scotland. No similar consultative process has taken place since the establishment of the SHRC.
In Scotland, the SHRC shares a human rights remit with the ‘Equality and Human Rights Commission’ (EHRC) which does have the power to take cases in its own name. This power was in part the result of the demonstrated experience of the NIHRC using its legal enforcement powers as expressed in the evidence-based consultative Sixth Report of the Joint Committee on Human Rights on the case for an Equality and Human Rights Commission. While the legal capacity of the EHRC is limited to matters concerning equality and human rights cases with a discrimination component, it has nonetheless advanced understanding and interpretation in Scotland through its strategic equality cases. However, the progressive development of human rights case law by Scottish courts is visibly lacking in areas outwith the mandate of the EHRC.
The question is, therefore, would the need for the comprehensive development of human rights law by the courts in Scotland be sufficient justification for reviewing section 6 of the Scottish Commission for Human Rights Act 2006? Furthermore, would it be plausible to avoid an overlap with the EHRC’s mandate (operating under the Equality Act 2010)?
Both the NIHRC and the EHRC have the legal powers to institute or intervene in human rights cases, subject to an appropriate parliamentary statement to put beyond doubt the NIHRC’s right to take ‘abstract’ cases in its own name. For the NIHRC and EHRC, these powers have been beneficial and allowed their mandates to be put into practice. For example, the Supreme Court’s views on the substantive compatibility issues with the Convention in the appeal case means a renewed opportunity for a successful legal challenge to the abortion laws in Northern Ireland. In fact, a new legal challenge on the subject matter at the Belfast High Court is awaiting judgment. The EHRC has also highlighted ‘successes’ of its own legal powers. For instance, in July 2017, it successfully intervened in the case of R v Lord Chancellor challenging the decision by the Ministry of Justice to introduce high fees for those bringing Employment Tribunal claims as not only unlawful but also indirectly discriminatory in particular to women who were likely to institute such claims.
This position is different for the SHRC. While having a wider human rights remit than the EHRC in Scotland, it cannot assist in claims or legal proceedings. It may be argued that such powers may be of assistance in helping the SHRC to challenge practices by public authorities and to raise awareness of the concerns of individuals.
A counter argument could be advanced, however, that there are other NGOs and law centres in Scotland with powers to act in support of public interest litigation addressing various rights violations. Little research has been carried out in this area as noted in a recent report by the Human Rights Consortium Scotland, Overcoming Barriers to Public Interest Litigation in Scotland. Furthermore, given that each institution has a specified mandate, the litigation focus remains fragmented, failing to advance all human rights in a holistic manner.
Accordingly, no institution can claim at present to be able to fully address and act in all human rights proceedings – economic, social, cultural, civil and political – for everyone, everywhere in Scotland. For example, at present, the following areas are often treated in a fragmented manner by different organisations: children’s rights, education law, immigration and asylum, housing and homelessness, mental health and women’s rights. Other aspects of human rights are left unexplored. An institution with powers to address all human rights concerns would offer wide-ranging legal enforcement support in Scotland.
In very narrow circumstances NGOs have persuaded the European Court of Human Rights (‘ECtHR’) that they meet the victim test under article 34 of the Convention to be able to bring proceedings, as was the case in Centre for Legal Resources v Romania. Similarly, in Open Door and Dublin Well Woman v Ireland an exception to the victim test was made by the Strasbourg Court, accepting the challenge by an individual women that she belonged to a class of women at risk from direct prejudice because of her immediate association to that group despite not being a victim. Notably, however, even with this window of opportunity, an increase in public interest litigation cases is yet to be observed from Scotland both in the domestic courts and at the ECtHR. Technically an organisation is not a victim under the Convention. At present, the EHRC is the only organisation with the statutory standing able to bring an ECHR challenge without being a victim, at least whilst the NIHRC’s legal powers remain inconclusive.
The importance of the EHRC’s powers should not be underestimated. It is an important cornerstone in human rights public interest litigation in the UK. Even though the powers of the EHRC are limited to non-devolved matters, it has the power to act in devolved matters with the permission of the SHRC in Scotland. Might it be argued though that limited coordination between the SHRC and the EHRC in Scotland silently supports the absence of public interest litigation?
If the SHRC had the legal powers to take proceedings in its own name or support a party to proceedings, it could result in real changes to funding and an increase in high impact collaborative public interest litigation cases, perhaps just what is needed to heighten public confidence in such litigation. Equally, SHRC having such powers would assist those who fall between the cracks in the legal aid system to still be able to raise cases, ensuring that arguable cases would not go unchallenged due to lack of finances. While the legal system in Scotland provides for support to individuals, those services are not entirely free. Legal aid of varying amounts may be available depending on the particular facts of the case. Moreover, no priority in financial assistance is given to individuals with potential key human rights cases over other types of cases. Perhaps the Scottish Legal Aid Board should reconsider legal aid in potential key human rights and public interest cases as a matter of priority. Reconsideration of the working criteria for eligibility for legal aid in Scotland, would go a long way in supporting the development of human rights law before the courts.
While the extent of the NIHRC’s statutory powers remains unresolved, it is worthwhile acknowledging the potential significance these powers would have in the progressive development of human rights law, not only in Northern Ireland but also in the rest of the United Kingdom. More clarity for the NIHRC will no doubt set the wheels in motion for a legislative review of the powers of the SHRC. Perhaps it is time for a reconsideration of the contributory and inhibitive effect of section 6 of the Scottish Commission for Human Rights Act on public interest ligation, and the need for legal enforcement powers to supplement its investigatory and intervention powers if it is to support victims in Scotland.
Brian Dan Migowe is a recent graduate from the LLM in Human Rights at Strathclyde University Law School. He is a qualified lawyer in Kenya.