IDENTIFYING HUMAN RIGHTS STORIES: A SCOPING STUDY Funded by the Thomas Paine Initiative Dr Alice Donald and Elizabeth Mottershaw July 2014 Contents Acknowledgements i Abbreviations ii Executive summary iii 1. Introduction 1 1.1 The nature of the problem 1.2 Public opinion about human rights and the HRA 3 1.3 Methodology 5 1.4 Scope of this report 6 1.5 Guide to this report 7 2. Determining the impact of the Human Rights Act 8 2.1 The Human Rights Act and public authorities 8 2.2 Types of impact 9 2.3 The issue of causality 10 2.3.1 Determining the impact of human rights judgments 10 2.3.2 Determining the impact of human rights-based practice 12 2.4 Scale of impact 14 2.5 Conclusion 16 3. Evidence about impact: where to look for human rights stories 18 3.1 Sources of evidence 18 3.1.1 Ready-made human rights stories 18 a. Age UK and the British Institute of Human Rights 18 b. British Institute of Human Rights 19 c. Equality and Human Rights Commission 20 d. Equally Ours 21 e. Liberty 21 3.1.2 Repositories of data 22 a. Evidence to the Commission on a Bill of Rights 23 b. Evidence to the Joint Committee on Human Rights 24 c. Evidence to the Equality and Human Rights Commission 26 d. Human rights guidance 26 e. Material produced by or about public authorities 27 3.1.3 Human rights judgments 29 3.2 Impact in specific areas of law, policy and practice 31 3.2.1 Protection from violence and coercion 32 3.2.2 Protection of those whose rights are especially vulnerable to abuse 34 3.2.3 Justice for bereaved families 36 3.2.4 The protection of individual liberties 38 3.2.5 Ensuring fairness in decision-making 39 3.3 Human rights in the devolved nations 40 3.4 Conclusion 43 4. The elements of a human rights story 44 4.1 Whose story is it? 44 4.2 The content of the story 47 4.3 How the story is told 49 4.4 Conclusion 51 5. Finding human rights stories: barriers and solutions 52 5.1 Awareness and perceptions 52 5.2 Reaching those whose human rights are at stake 57 5.2.1 Capturing ‘buried’ stories 58 5.2.2 Consent and confidentiality 60 5.2.3 Supporting people to tell human rights stories 63 5.3 Resources and organisational factors 64 5.4 Capturing stories from oversight and complaints-handling bodies 66 5.5 Capturing stories from litigation 69 5.5.1 ‘Translating’ legal judgments 69 5.5.2 Accessing records of legal proceedings 71 5.5.3 The role of the legal profession 73 5.6 Conclusion 76 6. Next steps 78 Annex 1 List of interviewees 80 Acknowledgements We would like to thank all those who gave interviewees or participated in the roundtable discussions for being so generous with their time and insights. We are grateful to the Thomas Paine Initiative for funding this scoping study. Thanks are due in particular to Neil Crowther, Director of the Thomas Paine Initiative, for his patient support throughout. Thanks are also due to Sarah Smith, Human Rights and Rule of Law Policy Adviser at the Law Society, and the Equality and Diversity Forum for hosting the roundtable events. Thanks also to the Law Societies in the UK, the Human Rights Lawyers’ Association, the Law Centres Network and Adam Wagner of the UK Human Rights Blog for circulating the online survey. Helpful comments were provided by Jamie Burton, a barrister at Doughty Street chambers (in a personal capacity), and Professor Philip Leach of the School of Law at Middlesex University. We acknowledge with gratitude the research assistance provided by La’Tina Spears. About the authors Dr Alice Donald is a Senior Research Fellow in the School of Law at Middlesex University. Elizabeth Mottershaw is an independent human rights consultant. i Abbreviations BIHR British Institute of Human Rights CRAE Children’s Rights Alliance for England CRPD Convention on the Rights of Persons with Disabilities DPP Director of Public Prosecutions ECHR European Convention on Human Rights ECtHR European Court of Human Rights EDF Equality and Diversity Forum EHRC Equality and Human Rights Commission FREDA Fairness, respect, equality, dignity and autonomy (the ‘FREDA’ principles) HRA Human Rights Act 1998 JCHR Joint Committee on Human Rights LGBT Lesbian, gay, bisexual or transgender NIHRC Northern Ireland Human Rights Commission NHRI National human rights institution NICCY Northern Ireland Commissioner for Children and Young People SHRC Scottish Human Rights Commission SPSO Scottish Public Services Ombudsman ii Executive summary Introduction This report explores ways of generating stories that show how the Human Rights Act (HRA) 1998 affects the lives of people in the UK. By human rights ‘stories’ we mean instances in which arguments based on human rights law, whether alone or alongside other arguments, achieve beneficial outcomes for individuals or groups, whether procedural or substantive, by means of: • litigation; • decisions taken by public authorities; or • public advocacy, lobbying and campaigning. Our premise is that the HRA is often misrepresented as benefiting litigious individuals at the expense of the public interest. Consequently, there is a need to bring more systematically into the public domain human rights stories that concern everyday scenarios affecting many people, and that reflect the impact of human rights standards and principles both inside and outside the courts. This imperative was overwhelmingly endorsed by our interviewees. Determining the impact of the Human Rights Act The HRA requires public authorities to act compatibly with the rights contained in the European Convention on Human Rights. This includes a positive obligation to act to preventively to protect people’s human rights in some circumstances. Human rights stories may be generated in many different contexts and by many different actors. In some instances, the protagonist of a human rights story is the person whose rights are at stake; in others, it is an advocate, advice-giver, public servant, lawyer or campaigner who uses human rights to achieve beneficial outcomes for others. Just as there is variation between human rights stories in the types of impact, there are also differences in the scale of impact. Sometimes, the impact of the HRA lends itself to being captured in the form of personal narratives; in others, stories demand to be painted on a bigger canvas. The most powerful stories are likely to be those that work simultaneously at both levels, ensuring that individual stories are not isolated and de-contextualised. In order to avoid the risk of ‘over-claiming’, it is necessary in each instance to demonstrate, rather than merely assume, the impact of the HRA. iii Where to look for human rights stories Considerable evidence exists as to the impact of the HRA on the lives of people in the UK: some - but not all - has already been captured in story form. Personal stories form part of a larger narrative about the HRA. We identify several broad areas within which individual stories might be contextualised. These are: protection from violence and coercion; protection of those whose rights are especially vulnerable to abuse; justice for bereaved families; protection of individual liberties; and ensuring fairness in decision-making. These broader narratives are not exhaustive but, taken together, they tell a story about the HRA which is fundamentally different from that propounded in public discourse. There is no single UK human rights story. Rather, each nation of the UK presents particular opportunities and challenges to capturing stories which relate the impact of the HRA. While differences should not be exaggerated, the devolved nations appear to provide a more favourable climate than England (and certainly Westminster) for generating and communicating human rights stories. The elements of a human rights story This report identifies questions that human rights story-tellers need to consider. Whose story is it? What happens? And how is the story told? Our interviewees did not advocate a prescriptive approach to these questions but, rather, one which is sensitive to context in respect of the purpose of the story and its intended audience. Some general principles can be extracted as to how to tell stories that convey both the legal and moral force of the human rights framework. One is to communicate not only human rights values and principles but also what the HRA achieves practically for individuals, whether in terms of procedure (‘having your voice heard’) or substantive outcomes. Another is to provoke empathy for the subject of the story through the use of compelling detail and by conveying the universal implications of their predicament. A story can also be made more persuasive by creating a feeling of jeopardy - identifying who or what is under threat. Human rights can be made explicit in a story without resort to legalistic or technical language. In addition to people whose own rights are at stake, specialist NGOs and advocacy organisations are considered to be particularly persuasive messengers. Finding human rights stories: barriers and solutions Low awareness and negative perceptions about human rights inhibit organisations from using or referring to them, creating a negative cycle. Conversely, a positive cycle can be established, whereby human rights stories raise awareness and encourage implementation, thereby generating more stories. iv Capturing human rights stories requires persistence and can be demanding of resources. Public authorities rarely promote, or even recognise, the human rights dimension of what they do. There is a need to find willing and knowledgeable interlocutors; weave a coherent narrative from disparate sources of information; and surmount problems of low awareness or antipathy to human rights.