Commissions and commissioners: final report
Research findings exploring the role of commissions and commissioners in supporting rights in Scotland and the UK. The research was commissioned by Scottish Government and undertaken by Research Scotland in 2022/23.
8. Views on a new commissioner
This chapter explores interviewee views on the establishment of a potential new commission or commissioner for learning disability, autism and neurodiversity. These issues were only explored with interviewees based in Scotland.
Concept of a commissioner
Interviewees highlighted that their organisations had not yet undertaken detailed work exploring their views on the concept of a commission or commissioner for learning disability, autism and neurodiversity, and that it was challenging to comment without understanding the detail of the role and responsibilities. All interviewees expected that as the Bill developed, their organisation would input to this through discussions and responding to consultations.
Overall, interviewees felt that any additional resource for people with learning disabilities, autism or neurodiversity would be welcomed, feeling people often faced inequalities and disadvantage. However, there were mixed views on whether a commissioner was the best way to address the issues. A few said it was important to think about what difference having a commission or commissioner would make tangibly, on the ground for people with lived experience.
"We absolutely do need extra resource and investment for this community, it's just about how best to get it there." Interviewee
"This is an area where public services need to be better, but it's about how we get that solution." Interviewee
Commissioners highlighted that demand for their support from people with learning disabilities, autism or neurodiversity was significant, and already an important part of their work.
There was some concern that creating commissioners for particular groups would lead to a large number of commissioners and a complex landscape. Many interviewees highlighted that the landscape was quite complicated and busy.
"It's already a very complicated and messy landscape." Interviewee
"I don't think that given the chance to start things from scratch you would choose to create the institutional landscape that you have now." Interviewee
"If there's a new body we'll just be referring cases between ourselves, which doesn't make sense." Interviewee
Interviewees were also aware that commissioners for other groups or issues were also being considered by Scottish Government, and that this may further complicate the landscape. A few were concerned that people could end up being pushed between commissioners, or being unsure which applied to them.
"I think at the moment one of the things we are potentially concerned about isn't about individual commissioners, it's about the number that are being considered." Interviewee
Some were concerned that focusing commissioners narrowly on particular groups rather than thinking about human rights in the round could create issues. A few felt that it made it much harder to account for intersectionality, and how individuals are impacted by their range of characteristics. A few felt that focusing more on human rights and equality for everyone, rather than setting up roles for particular groups of people, may be more effective.
One interviewee highlighted that the focus on creating more bodies to promote and support human rights did not support the findings of the Crerar Review in 2007, which reviewed regulation, audit, inspection and complaints handling of public services in Scotland. It found that scrutiny arrangement in Scotland were complex, and aimed to simplify and reduce bodies.
Two interviewees highlighted the importance of the Paris Principles which set out the minimum standards that national human rights institutions must meet to be considered credible and operate effectively. This includes having a broad mandate, to be able to promote and protect all human rights. They were concerned that focusing on the rights of a particular group may not meet these principles.
Finally, one interviewee felt that discussion about a commissioner had arisen from discussions about the scope of the Mental Health Act. This interviewee felt that it was important to keep disability within the Mental Health Act, and offer protections to people with autism, learning disability and neurodiversity through this route, rather than through a specific commissioner. This interviewee felt that focusing the language on support for decision making, and a concept of fusion of rights for people was helpful, rather than focusing in on a particular condition or disorder.
Interviewees stressed that it was important to ensure that any new commissioner complemented existing activity, and did not duplicate activity or take powers away from existing commissioners. For example, a few interviewees highlighted that they could investigate only issues which were not under the remit of another body. Having more commissioners, could create more issues with this.
"The current government is very enthusiastic about commissioners, so it's becoming very confusing what a commissioner is. There are so many different models now that the phrase commissioner is starting to lose its value in terms of what it is. People are struggling to understand what's the difference between different commissioners… The more commissions that are set up, the more it muddies the landscape as to what we're all actually doing." Interviewee
Another interviewee was concerned about whether a commissioner would be able to explore or investigate many issues, as it was likely that many would relate to discrimination, which is a reserved matter and covered by the Equality and Human Rights Commission (set up by the UK government, not the Scottish Government).
"There would also be significant limitations on what a new commissioner could do in this space, because of the Equal Opportunities reservation." Interviewee
Interviewees said that it would depend on the role of the commissioner and how the legislation was crafted, but highlighted that avoiding duplication was essential to achieve the best outcome for people with lived experience. A few said that the legislation would need to be carefully crafted, and that requirements for coordination and communication between commissioners would need to be effectively resourced. Interviewees felt that this coordination would be possible, but messy, complex and challenging.
"When any new legislation is being developed we will need to make sure that any new offices don't reduce or limit the remit of existing offices." Interviewee
Interviewees highlighted a range of other possible options for strengthening human rights for people with autism, learning disability and neurodiversity. These included:
- better resourcing existing organisations which champion disabled people
- better resourcing existing commissions and commissioners for human rights and equality – to ensure better compliance with existing rights
- having champions and advocates within public bodies
- supporting good practice through standards, guidance and practical tools – which could sit with another body rather than a commissioner
- investing in co-production of policy and practice with people with autism, learning disability and neurodiversity.
"If we see better compliance with Public Sector Equalities Duties, better compliance with reasonable adjustments duty, more use of co-production, better resourcing for existing bodies, there's loads that can be done before we get anywhere near introducing a new commissioner." Interviewee
A few interviewees indicated that adding a resource to existing human rights organisations which was the equivalent to that of establishing a new commissioner would be transformative.
Some also suggested that having a lead or commissioner housed by an existing commission or other organisation may be worth considering. Some felt that this would give the commissioner some support and ballast, and reduce costs and administration duties as a public sector organisation through sharing services.
However, a few were unsure of the rationale for a specific lead or commissioner for some groups, without having the same for other groups. It was felt that this could create challenges through diverting resources from other issues, and diluting organisations' focus on all human rights for everyone. Two organisations highlighted that as they were national human rights organisations they needed to meet the Paris Principles which included having a broad mandate covering human rights for all.
Example: Hosting specific commissioners
The Scottish Human Rights Commission produced a position paper to the recommendation on the Women's Commissioner for Scotland in March 2022. The National Advisory Council on Women and Girls had called on the SHRC to appoint a commissioner to focus on promotion and protection of women's rights, accompanied by resourcing to allow this work to happen. The SHRC responded in detail, and part of this involved highlighting that if the Commission was restructured to apply a thematic approach covering the Convention on the Elimination of Discrimination Against Women, in order to comply with the Paris Principles for National Human Rights Organisations, it may also be necessary to appoint commissioners with thematic mandates covering the other key international human rights treaties, and ensure that all were adequately resourced. More detail is available here.
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