Joint Committee On Human Rights

Joint Committee On Human Rights Sixteenth Report

10. Memorandum from the Institute for Public Policy Research

The Institute for Public Policy Research is a registered charity established in 1988 to contribute to public understanding of social, economic and political questions through research, discussion and publication.

IPPR welcomes the White Paper's proposals. We have long argued the case for institutional arrangements to support equality and human rights[142] and continue, through our representation on the Government's task force and membership of the Equality and Diversity Forum, to contribute to policy developments in this area.[143]

SUMMARY

We recognise the achievement of integrating human rights and equality within a single commission, which also provides for free-standing human rights powers. Since it came into force, the impact of the Human Rights Act has been principally in the courtroom rather than in society. The fact that the CEHR will be enabled to promote human rights principles for wider social justice purposes provides an opportunity to develop a culture of respect for human rights within public services and offer greater protection for those who need it. The Commission will also work to achieve fuller understanding and acceptance across civil society of the benefits of diversity, the equity of equality and the role for human rights in encouraging civic engagement.

INDEPENDENCE AND ACCOUNTABILITY

The CEHR will qualify internationally as a national human rights institution and its constitution should exemplify best practice under the Paris Principles.[144] We therefore endorse the several recommendations made by the Joint Committee on Human Rights in its recent report on the Commission's relationship with government and with parliament, which aim to achieve sufficient independence from governmental influence and greater democratic legitimacy.[145] We also urge the Government to provide sufficient resources for the new commission so that it can be set up genuinely to succeed.

SINGLE EQUALITY ACT AND POSITIVE DUTY TO PROMOTE EQUALITY FOR ALL

The concern remains, however, that while institutional arrangements are being put in place to pursue a vision of equality for all, the underlying legislation does not support that vision. The consequence is that the legal reality undermines the inspiring rhetoric and will reduce the effectiveness of the Commission. Because the proposed enforcement powers will only be available in some but not all cases of discrimination, this will foster hierarchies of inequality among people experiencing discrimination. The situation is historically explicable but without current justification and needs to be remedied as soon as parliamentary time allows.

In addition, we urge the Government to extend the positive duty framework beyond race, disability and (as the White Paper has promised) gender. The advantages of the "positive duty" approach are now widely recognised.[146] We have learned from thirty years of anti-discrimination legislation that the burden needs to be shifted from individuals asserting their rights to organisations implementing institutional change. Employers and providers of services have acknowledged the advantages of single and simple messages enabling them to take a unified approach to compliance and best practice. Inconsistent statutory duties on equality will discourage organisations from making the necessary cultural changes and inhibit the ability of the Commission to encourage them to do so.

CEHR: HUMAN RIGHTS FUNCTIONS

The human rights remit needs to be sufficient to ensure that the CEHR can act strategically and effectively.

Promotion in order to achieve Protection

We welcome the statement that "the goal will be to move from bare compliance with the HRA to using good human rights practice as a way to improve service provision" (White Paper para 3.11). We are concerned, however, that the underlying purpose of this work has not been expressed. The reason why service providers need to adopt human rights thinking is so that they can avoid and prevent poor treatment of service users and the potential breach of their human rights. The real goal, therefore, is to achieve the protection of people's human rights and the CEHR will seek to do this by encouraging service providers to adopt a positive approach towards the protection of human rights. Because prevention generally works better than cure, the CEHR will focus on promotional and educative strategies but it must not lose sight of the ultimate goal.

We urge the Government to make this clear in the legislation. Adapting the thinking of the JCHR on this[147] and to ensure compliance with the Paris Principles[148] we recommend that the CEHR be under the following statutory duty:

The Commission shall promote understanding of and respect for, and help secure the protection of, human rights.

Statutory Definition of "Human Rights"

"Public authorities" (which include the government and the courts but not parliament) are subject to the Human Rights Act. The government has also assumed treaty obligations under various international human rights instruments, although they have not been incorporated into domestic law. The way in which the Commission will go about meeting its statutory duty in relation to human rights will necessarily be subject to this underlying legal regime and to the powers that it has at its disposal. In our view, therefore, it is not desirable to attempt a purposive definition of "human rights" in the legislation as seems to be implied by paragraphs 3.13 and 3.14 of the White Paper. We recommend that the CEHR's duties in relation to "human rights" be defined in the governing statute as follows:

"Human rights" "include Convention rights (as defined in the Human Rights Act 1998) and those human rights principles set out in international treaties and covenants to which the UK is a signatory."

CEHR: HUMAN RIGHTS POWERS

We welcome the powers proposed for the Commission to assist it in meeting its human rights responsibilities. There is a concern, however, about the disparity between the powers in relation to discrimination and those for human rights, which will create unsatisfactory complications for the Commission in situations where equality and human rights co-exist. We consider that the principle of equivalence of powers should apply as far as practicable.

General Inquiries

We believe that the Commission's power to conduct general inquiries should be subject only to its own initiative and not to requests from the secretary of state (White Paper 4.5). The Commission must be able to set its priorities independently of government and to resist taking on responsibilities for an inquiry that may fall outside its existing strategic plans and that will divert resources from other planned action. The government will retain its own responsibilities to implement equality and human rights policies and the Commission should not be regarded as its sub-contractor on those matters.

We agree with the JCHR's recommendation that access to information should be subject to judicial supervision.[149] If, during an inquiry, the Commission wished to call a witness who expressed reluctance to attend, it would offend the principles of independence and public interest if the secretary of state were to determine whether the witness should attend or not. An application to a high court judge for a subpoena will safeguard those principles.

Named Investigations

It has been assumed that investigations into the policies and practices of particular organisations will be restricted to allegations of unlawful discrimination. As the Equal Opportunities Commission points out however, in its submission to the JCHR, there are good reasons why the Commission should be empowered to conduct a named investigation in relation to a particular "public authority" following alleged breaches of Convention rights.[150] The fact that an existing commission devoted to one strand of equality and with experience of investigations supports this measure demonstrates that it deserves serious consideration by the Government. With appropriate safeguards in place, we cannot see any justification for restricting the Commission's powers in this respect.

Judicial Review

The philosophy behind the human rights remit of the CEHR is that it should act strategically and preventatively in the public interest. To do this effectively, the Commission will need to have a set of tools available that it can (but will not be obliged to) use if necessary. We agree with the JCHR that:

… it would be an indefensible situation [if] a commission set up for the express purpose of promoting and protecting human rights was able to identify what it believed were threats to those rights, but no steps were available to it to remove those threats.[151]

We endorse the arguments advanced by the JCHR in favour of granting the Commission power to make an application for judicial review of administrative acts or omissions relating to Convention rights.[152] This will permit the Commission to seek judicial determination about systemic matters under both discrimination and human rights law and will avoid it having to resort to subterfuge.[153] The use of this power will illustrate how successfully the Commission is able to maintain its independent place being neither an agent of the government, an all-purpose NGO nor a perpetual litigant, but an institution sensitive to the legitimacy of democratic processes.

Third Party Interventions

The power to intervene in litigation as a third party is an important strategic tool. The CEHR should have complete discretion over which cases it wishes to apply to intervene in within the limits of its statutory duties. It would be inappropriate to introduce any legislative language qualifying this discretion as may be implied by paragraph 4.13 of the White Paper.

Human Rights Points arising in a Discrimination Context

It is welcomed that the Commission will have particular and discrete tools at its disposal to tackle discrimination against specified categories of people, which include enforcement action as well as support for employers and service providers in complying with anti-discrimination law. It may often be the case that a Convention point will arise in the course of this work where it involves organisations with responsibilities under the Human Rights Act. The question is what the Commission will be empowered to do in that situation. In our view, it would be bizarre and unjustifiably restrictive for the Commission not to be permitted to address it. We therefore recommend that the CEHR have the following powers:

In a combined discrimination and human rights case, to continue supporting the case after the discrimination point has fallen away (paras 4.18 and 4.19)

If named investigations are limited to discrimination allegations only, to have the power (in the case of investigations into "public authorities") to include: findings which emerge on Convention rights in its report; proposals for remedying alleged breaches of Convention rights in non-discrimination notices, action plans and binding agreements; and reliance on the relevant Convention right in applications for injunctions (paras 4.24 to 4.39).

When publishing statutory codes of practice, to be able to include information and guidance on compliance with recent court decisions clarifying the responsibilities of public authorities under the Human Rights Act (paras 4.7 to 4.10)

Settling Disputes

The White Paper states that "consistent with the approach for supporting HRA litigation, it is not envisaged that the CEHR's conciliation service will be available for free-standing HRA cases (para 4.22). We believe that it would be wrong to exclude disputes raising human rights points from the Commission's powers to support conciliation services and that the Government should leave the matter to the Commission's discretion.

The ban on the Commission supporting individuals in their HRA litigation should not be extended to (or confused with) supporting individuals in resolving disputes about their rights. In fact, it reveals an inconsistency of approach within government. In the chapter on promoting good community relations, the White Paper describes the CEHR's human rights remit as "providing tools and concepts to help find solutions in areas where rights may conflict." (White Paper para 6.5) The CEHR's function should be to promote this utilitarian vision of human rights across society as a whole. Disputes about whether a care home should be closed or whether a council should intervene where there are noisy neighbours do not necessarily require judicial scrutiny before they can be resolved. We agree with the JCHR that a general power to support ADR "approaches to allegations of breaches of human rights by public authorities would be a valuable ancillary to …the duty to promote a culture of respect for human rights".[154]

ENGAGING AND WORKING WITH STAKEHOLDERS

Chapter 7 of the White Paper identifies "individuals, businesses and the public sector" as the three "key customers" of the CEHR and invites comments on how they should be supported. Elsewhere in the White Paper there is reference to the importance of the voluntary sector and community groups as "key partners" of the CEHR.[155] In our view, not to recognise and include this sector as a "key customer" is to misunderstand the potential for voluntary and community action in pursuit of greater equality and respect for human rights. This is particularly significant since the Commission will not be supporting individuals in bringing cases on human rights grounds and this will allow other strategies to be pursued.

VOLUNTARY AND COMMUNITY SECTOR

Where the voluntary sector represents users, it has the potential to fulfil an important function at the local level in encouraging service providers to meet their legal obligations. Voluntary organisations should be able to do this by using human rights and equality principles in specific negotiations with public authorities and in their policy and campaigning work. As the JCHR concluded:

We see this as an essential part of the systemic work needed to develop a culture of respect for human rights and as complementary to advising individuals on their human rights and how to assert them.[156]

Representatives of users should work with service providers to prevent violations occurring and try to resolve them quickly when they do. But as the IPPR has discovered during its recent research on this issue, the barriers to progress are widespread lack of knowledge and understanding within the voluntary sector of the relevance of human rights principles. The consequence has been that marginalised and vulnerable people with the most to gain in terms of protection of their rights have been effectively excluded from the benefits of the legislation. The establishment of the CEHR is an opportunity to remedy this.

In order to operate strategically, the CEHR will need to develop relationships with networks, coalitions and umbrella organisations in the voluntary and community sector with the ultimate aim of reaching the people who are often the hardest to reach. The engagement should go beyond consultation designed to help define the CEHR's own priorities (para 7.3).

The Commission should encourage collaborative working between the voluntary and public sectors using existing channels of communication. These include mechanisms like the community cohesion strategy, local strategic plans and the NHS framework for older people. The Commission's role will be to contribute equality and human rights thinking to these initiatives.

The IPPR research has so far identified the following action that the CEHR will need to take to support the voluntary and community sector:

Information provision

The voluntary sector have had little or no information about the relevance of human rights other than to warn them of potential responsibilities when they are providing services. The CEHR will need to be proactive in remedying the voluntary sector's lack of capacity, as the White Paper recognises (para 2.6).

Case studies

The CEHR will have to give definition to Convention rights and the underlying principles and how they might be applied. For example, what practices constitute "degrading treatment" of vulnerable people? Case studies should refer to practical scenarios where human rights problems have been resolved as well as referring to court decisions clarifying the law. Sufficiently disseminated, case studies will be an important resource and should decrease the need to bring cases.

Informal best practice codes

Participants in our project have highlighted examples where collaborative working between NGOs and the public sector can lead to changes in practices. These can be incorporated into informal codes and disseminated more widely. For example, encouraging schools to avoid serving free school meals separately which stigmatises the children receiving them.

Guidance on staff training

Training on equality and human rights needs to reach front-line staff so that there is greater association between problems occurring and the potential applicability of human rights principles to them.

PROVIDERS OF PUBLIC SERVICES

In view of the evidence about the lack of understanding of human rights responsibilities within public authorities,[157] the Commission will have to employ similar techniques to those described above to support the public sector. In the foreword to the White Paper, the prime minister, Tony Blair said:

We cannot achieve our vision of high quality public services for all if those services do not respect individuals' rights to dignity, privacy and respect.

The CEHR's role will be to take this message from the heart of government to other Whitehall departments and to public authorities in the regions. But the Commission will have to work on giving some specificity to these fundamental values so that public authorities can apply them in practice.

We see, however, two particular problems, which may undermine the effectiveness of the CEHR's work with the providers of public services.

Meaning of Public Authority

The first problem is the lack of clarity in the meaning of "public authority" for the purposes of Section 6 of the Human Rights Act. The CEHR needs to know when it is informing organisations about their compliance with the law and when it is suggesting that they adopt best practice measures. More importantly, the law unfairly discriminates against users of services because their entitlement to human rights protection depends on the status of the provider rather than, as it should do, the nature and quality of the services. We endorse the recommendations of the JCHR in their recent report[158] and urge the Government to take action to remedy this continuing injustice.

Positive Duty to Promote Human Rights

The JCHR has considered the impact of the Human Rights Act on the public sector and found that there is a "need for greater focus by public authorities on their positive obligations to protect human rights" and that "the statutory requirement to act compatibly with human rights is not enough on its own".[159] The Joint Committee concluded:

… we are now persuaded by the evidence that imposing a "positive" or "general" duty on public authorities to promote human rights will be an effective way of advancing this.[160]

We are concerned that the Commission will have difficulty is giving a clear message to public authorities about their "positive obligations" without statutory definition and that a positive duty will underpin the Commission's own function of promoting human rights.

PRIVATE SECTOR BUSINESSES

We welcome the proposals for the CEHR's engagement with private sector businesses. They correspond with the conclusions reached in the IPPR report on the work of the Race Equality Task Force.[161] In particular, the CEHR will need to demonstrate the benefits of diversity, differentiate between large and small businesses, work in partnership with trade associations, professional bodies and regional and local networks, avoid confusion between promotional guidance and enforcement action, and provide sector-specific expertise on all aspects of equality and diversity.

July 2004

142 See e.g. Spencer/Bynoe, A Human Rights Commission: The Options for Britain and Northern Ireland, IPPR 1998 Back

143 We are currently researching the uses of human rights within the voluntary sector (particularly outside a litigation context) and will publish our findings on 10 December 2004 Back

144 Paris Principles, General Assembly Resolution 48/134 of 20 December 1993 Back

145 Commission for Equality and Human Rights: Structure, Functions and Powers, JCHR 11th Report, session 2003-04, HL Paper 78 HC 536 Back

146 See for example, Colm O'Cinneide, Taking equal opportunities seriously: the extension of positive duties to promote equality, Equality and Diversity Forum, January 2004 Back

147 JCHR 11th Report para. 14 Back

148 "A national institution shall be vested with competence to promote and protect human rights", Paris Principles, para. 1 Back

149 Ibid., para. 60 Back

150 Ibid., Ev 34 Back

151 Ibid., para. 91 Back

152 Ibid., paras. 81-93 Back