Written evidence from Dr Mark Ryan (HRO0003)
1. My name is Dr Mark Ryan and I am an Assistant Professor of Law in Constitutional and Administrative Law at Coventry University and I have written a textbook on Constitutional and Administrative law (4rd edition, Routledge/Taylor & Francis Group, 2018). My submission below is made in my personal capacity and indicates my brief personal observations on a Human Rights Ombudsperson. It in no way reflects the views of my employer (Coventry University).
2. There is an arguable case for the creation of a Human Rights Ombudsperson. Although first and foremost the ECHR and the Human Rights Act (hereafter the HRA) are legal instruments which enable individuals to legally enforce their rights domestically or thereafter in Strasbourg, there is nevertheless space for human rights to be asserted and protected without the need to activate formal legal proceedings. The remit of this inquiry concerns individuals ‘enforcing’ their human rights outside the strict court system and the notion of non-legal enforcement is arguably dependent upon the following two factors: Firstly, an individual being sufficiently conversant with and aware of their human rights, and secondly, on the willingness of public authorities/bodies to engage and protect these rights, thereby facilitating their enforcement in a non-legal context.
3. In terms of individual awareness, although it is fair to say that the public - albeit in somewhat rudimentary terms - are aware of the HRA (no doubt driven by the Act being highlighted in high profile cases), whether there is any meaningful understanding of the subtle legal nuances of the Articles and associated case law of the European Convention (i.e. legality, proportionality, etc.) is another question. As in all democracies, the key to ensuring that human rights are protected is through embedding a culture of liberty and an appreciation of the fundamental constitutional importance of human rights in the public psyche. It is here that an Ombudsperson could perform a valuable educative role. The Ombudsperson could be equipped with the requisite statutory powers (and most importantly supported with substantial financial resources) to perform an educative function so that it could liaise directly with school/colleges/educational institutions, etc. to provide detailed information, together with training and workshops on human rights. In addition, advice centres (for example, CABs) could also be included within the Ombudsperson’s outreach remit. As an aside, workshop training sessions which are delivered in person are undoubtedly much more powerful and effective than those delivered online. In this way an informed human rights culture could be (albeit slowly and gradually) inculcated in people (particularly, in the younger generation paving the way for the future). One advantage of this approach would be to provide people with a fully-rounded appreciation of the nature of human rights, including the often forgotten constitutional principle that the corollary of rights are responsibilities, so that people should exercise their rights in a responsible fashion (i.e. not abuse or misuse them).
4. The Ombudsperson could be statutorily empowered to receive complaints from individuals concerned that their human rights are, or are potentially, being infringed. Ideally this would involve open and direct access to the Ombudsperson (although complaints and concerns could also come from a MP or a local councillor if necessary). The Ombudsperson could then provide advice, guidance and signpost the options available, and the office could also be statutorily empowered to liaise on behalf of individuals with the public body concerned. This however raises a difficult legal question of whether the Ombudsperson should have the legal power to actively investigate complaints directly - other than acting in a liaison capacity - as any comprehensive and lengthy investigation could cause legal difficulties in terms of time limits should these human rights ultimately require legal enforcement in a court of law. One thing is clear, the establishment of at an Ombudsperson must be accompanied by a comprehensive and extensive public information campaign to publicise this new office.
5. In terms of public bodies, in order for individuals to enforce or assert their human rights effectively outside the court system, such organisations need to at all times actively enable and facilitate their enforcement. It is clear that a cultural shift has occurred in public bodies since the passage of the HRA with government officials/administrators now considering the human rights dimension as part of their decision-making processes, but given that cases still regularly reach the courts arguably more could be done. In fairness the point must be made that it has to be recognised that the notion of a human right is not an exact science, as there is room for legitimate disagreement over what constitutes a violation (especially in marginal cases) and whether a particular interference is unlawful and/or disproportionate (i.e. the correct legal balance not having been adjudged to have been achieved in the decision-making process in a particular case).
6. The Ombudsperson could be statutorily empowered to provide additional guidance to public authorities, analogous to the existing Parliamentary Commissioner’s principles for good governance through its ‘Ombudsman’s Principles’. More particularly, such advice could be tailored to different aspects of government (central/local), as well as to specific departments given that certain Articles of the Convention will have more relevance to some departments than others. The Ombudsperson could also issue advice and guidance to highlight systemic human rights problems and report these, together with its work in general, to a select committee (the Public Administration and Constitutional Affairs or the Joint Committee itself would be the obvious candidates). The ultimate aim would be for the Ombudsperson to act in a preventative capacity in the sense that the existence of the office would serve to help sharpen the minds further of administrators/government officials in their decision-making processes, in order to ensure that they facilitate individuals asserting their human rights without having to go to court.
Mark Ryan BA, MA, PhD, PGCE, FHEA, Barrister (non-practising).