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The Joint Committee on Human Rights’s (JCHR’s) recent
call for evidence on whether the UK should establish a Human Rights Ombudsperson (which closed on 23 June 2022) raises critical questions about how human rights can best be protected.
This article unpacks Public Law Project’s
joint submission with the
UK Administrative Justice Institute (UKAJI), and why we believe the JCHR should recommend strengthening the capacity of existing institutions instead of creating a new institution carrying risks of duplication, confusion and conflict.
While the UK has several institutions with human rights functions – notably, the Equality and Human Rights Commission (EHRC) – it does not have a human rights ombudsperson. The EHRC cannot, for example, investigate individual complaints from the public or super-complaints from representative organisations about human rights. Even those bodies that can hear complaints are geographically and jurisdictionally limited. In their investigations, existing ombuds also focus on whether legal standards like ‘maladministration’ have been violated, rather than proactively supporting public bodies to change to better promote human rights in their decisions, structures and systems.
Though we do not think a new institution is the right answer, it is positive that the JCHR has considered this. First, although the
Bill of Rights Bill’s future is unclear, if anything resembling it is enacted, there will be a substantial weakening of judicial mechanisms for enforcing human rights. Therefore, it is critical that non-judicial mechanisms like ombuds are a priority.
Second, ombuds have proved an increasingly important means of identifying human rights problems in the public sector. Recent examples include the Parliamentary and Health Service Ombudsman (PHSO) report into the handling of a Windrush victim’s citizenship application,
1An investigation into UK Visas and Immigration’s handling of Windrush man’s status, PHSO, 8 June 2021. which highlighted numerous failures by the Home Office.
Third, ombuds have several advantages compared with courts that should be built on. Not least, an ombud is not limited to making findings about legality (see, for example,
R (Rapp) v PHSO [2015] EWHC 1344 (Admin) at para 38) and possesses greater access to information than a court via judicial review.
2See, for example, Local Government Act 1974 s29, which prevents public bodies claiming privileges they could in litigation to resist disclosure.We urged the JCHR to focus on whether existing institutions possess the following powers:
•Investigating individual and super-complaints. It is important that investigations are not limited to finding either violations of human rights or maladministration. Violations can be addressed through litigation, and maladministration by existing ombud powers. Therefore, to add something to current mechanisms, the JCHR should examine to what extent existing institutions can proactively support public bodies to exercise their powers, make decisions and arrange their systems to promote human rights to the greatest possible extent.
•Own initiative powers to investigate systemic human rights challenges. The issues raised in complaints are often not limited to one person – the individual can represent a broader, systemic problem. Moreover, the poorest and most disadvantaged are often reliant on public services and are reluctant to complain. This is why we support the broader enactment of own initiative powers
3Own initiative – wider investigations – factsheet – for members of the public, Public Services Ombudsman for Wales. so that existing bodies are able to tackle these systemic problems that may otherwise go unaddressed. The PHSO, for example, is ripe for own initiative powers and this has been recommended for many years.
4‘Independent study calls for ombudsman to have greater powers’, PHSO news release, 12 November 2018. •Duties of disclosure and co-operation. In light of the difficulties an individual may face obtaining information from a public body, the JCHR should examine the strength of the investigative powers possessed by existing bodies. It might look at Domestic Abuse Act 2021 s15, which imposes a duty to co-operate with the domestic abuse commissioner. This provision empowers the commissioner to ‘request a specified public authority to co-operate with the commissioner in any way … consider[ed] necessary for the purposes of the commissioner’s functions’ and requires public authorities to comply with that request.
•Representing victims of human rights interferences in court. Currently, a court challenge using the Human Rights Act 1998 (HRA) must normally be brought by ‘victims’ of human rights interferences. For example, in
R (Reprieve, Davis and Jarvis) v Prime Minister [2021] EWCA Civ 972, the Court of Appeal determined that the claimants had no standing to bring a case related to unlawful rendition because none had been victims of rendition themselves. To ensure that existing institutions are able to effectively pursue litigation on behalf of others, the JCHR should examine whether those institutions should be expressly recognised as ‘victims’ for HRA s7 purposes.
While we welcome the JCHR’s inquiry, we believe strengthening existing human rights structures is the more efficient and practical strategy for improving human rights protections.