Joint Committee On Human Rights - Twenty-First Report

Joint Committee On Human Rights Twenty-First Report

1 Introduction

1. This report addresses the obligations of the UK to protect economic, social and cultural rights under the UN treaty that guarantees them, the International Covenant on Economic Social and Cultural Rights (ICESCR). It takes as its starting point the comments of the UN Committee that oversees the treaty, following its most recent consideration, in 2003, of the UK's implementation of the treaty rights. Under our terms of reference we are required to consider "matters relating to human rights in the United Kingdom". We have consistently interpreted this mandate as extending beyond the rights given force in our domestic law by the Human Rights Act 1998, to include the international human rights instruments by which the UK has agreed to abide.

2. The United Nations International Covenant on Economic Social and Cultural Rights (ICESCR) is a core element of the UN system for human rights protection. It is one of the six main binding UN human rights Conventions (all of which the UK has signed and ratified).[1] The ICESCR gives the economic, social and cultural rights proclaimed in the Universal Declaration of Human Rights of 1948, binding legal force. The same is achieved for the civil and political rights in the Universal Declaration, by the International Covenant on Civil and Political Rights (ICCPR). Both Covenants were adopted in 1966 and entered into force in 1976, and have bound the UK in international law since that date.

Periodic Reports

3. In common with the other main UN human rights treaties, the ICESCR requires the State Parties to it, including the UK, to make Periodic Reports detailing their compliance with the human rights standards it protects. Periodic Reports are then examined by UN committees of independent experts appointed by the State Parties. After its initial examination, the Committee may seek clarification and supplementary information from the Government concerned. Most UN Committees are now willing to receive background submissions from non-governmental organisations and hold pre-sessional hearings to consult on matters to be raised with the Government. In formal public examination, the Committee's aim is to encourage dialogue with representatives of the State Party. Concluding observations and recommendations of the Committee, that are adopted in closed session, also reflect this approach. They provide a collective assessment of the Report, listing the positive achievements of Governments while listing principal subjects of concern and recommendations. The Committee will always seek to take into account country-specific factors and acknowledge difficulties that impede the full implementation of the Covenant.

4. While the requirement upon the State party to draw up and submit a Periodic Report for public examination is an important aspect of the monitoring and enforcement regime for the UN system, the process also creates an opportunity for Government to undertake a regular cross-departmental audit of human rights protection and engage in dialogue with stakeholders from domestic community associations and user groups to global NGOs and international experts. International reporting reinforces the message concerning the universal and indivisible quality of human rights protection and offer an open and transparent focus for accountability.

Work of the JCHR

5. The consideration of the Periodic Reports on human rights treaties by the United Nations is an important means of ensuring accountability against the human rights standards which the government has undertaken to protect. For this accountability to be most effective, the scrutiny of compliance with the treaty rights should involve Parliament, and this parliamentary scrutiny should also open up the process to wider public debate. It is in order to provide a role for Parliament in the implementation of the UK's international human rights obligations that the JCHR has decided to examine the concluding observations from each of the UN Committees on the UK's Periodic Reports.

6. As the first step in this programme of work we published, in June 2003, a report on the UN Convention on the Rights of the Child[2] which examined the concluding observations of the UN Committee on the Rights of the Child in respect of the UK, and made a series of recommendations for enhanced protection of children's human rights in UK law and practice. This present report applies the same scrutiny to the concluding observations of the UN Committee on Economic, Social and Cultural Rights.

7. Compliance with the ICESCR is an aspect of the UK's international human rights obligations which has received scant scrutiny at a domestic level. The international obligations imposed under the Covenant, and the examination of the implementation of these obligations in the 5-yearly reviews by the UN Committee, have generated little domestic discussion, in contrast with the lively and informed debate in relation to civil and political rights. It is our intention to encourage a wider awareness and public discussion on the implications of economic, social and cultural rights guarantees, under the Covenant and other international treaties,[3] and the implications of these rights for UK law and policy. We hope our comments will also make a contribution to the ongoing dialogue between the treaty bodies and the UK, on implementation of the UN human rights treaties.

The Covenant

8. The rights that the ICESCR ("the Covenant") protects are—

— equality between men and women (Article 3);

— the right to work (Article 6);

— the right to fair conditions of employment (Article 7);

— the right to form and join trade unions (Article 8);

— the right to social security (Article 9);

— the right to protection of the family (Article 10);

— the right to an adequate standard of living (including the right to food, clothing and housing) (Article 11);

— the right to health (Article 12);

— the right to education (Article 13);

— the right to culture (Article 15).

9. The Covenant rights are to be guaranteed in accordance with the principle of non-discrimination (Article 2.2) and with the principle of progressive realisation (Article 2.1). The text of the Covenant rights is annexed to this report. Although there is no body of jurisprudence to determine the scope of the Covenant rights,[4] the authoritative "general comments" of the CESCR[5] give guidance as to the principles of application, content and limits of many of the Covenant rights. In the absence of a right of individual petition under the ICESCR, the sole supervision mechanism is therefore the reporting process by which, under Article 16 ICESCR, States Parties are required to submit Periodic Reports every five years detailing their compliance with the Covenant.

10. The UK's obligations under the Covenant should also be considered in light of the other international agreements for the protection of economic, social and cultural rights, to which the UK is a party. The European Social Charter 1961, the Council of Europe treaty which complements the civil and political rights guarantees of the European Convention on Human Rights, sets out a detailed catalogue of economic and social rights.[6] The Revised European Social Charter, which contains an expanded catalogue of the rights in the 1961 treaty, has not as yet been ratified by the UK;[7] neither has the UK accepted the Charter's collective complaints mechanism, which enables trade unions, employers' organisations and NGOs to bring cases for determination by the European Committee of Social Rights.[8] The UK is also party to a number of international treaties which guarantee specific aspects of economic and social rights. The treaties of the International Labour Organisation[9] provide protection in relation to workplace and trade union rights. The UN Convention on the Rights of the Child (CRC), the UN Convention on the Elimination of all forms of Discrimination against Women (CEDAW) and the UN Convention on the Elimination of all forms of Racial Discrimination (CERD) also contain guarantees of economic and social rights.

The Committee on Economic, Social and Cultural Rights

11. The UN treaty body with responsibility for supervising the Covenant is the Committee on Economic Social and Cultural Rights (CESCR), a body of 18 independent experts, established in 1985,[10] which meets in Geneva twice yearly. The reporting process follows the procedures outlined above.[11] It culminates in the publication by the CESCR of concluding observations which, although authoritative, have no binding legal force; they are intended to facilitate a continuing constructive dialogue with the State on implementation of the Covenant.

The UK Report

12. The UK's Fourth Report under the Covenant was examined in Geneva in April 2002, and the concluding observations were issued in May 2002. It is these concluding observations which form the basis of this inquiry. The UK's fifth report under the Covenant is due in 2007.

13. The FCO has lead departmental responsibility for preparing the report under the ICESCR, for submitting the report to the CESCR and for the subsequent dialogue (the role of the FCO is examined below). The report also includes input from a number of other government departments, including departments of the devolved administrations.

Progress of this Inquiry

14. In the course of this inquiry, we took oral evidence from Bill Rammell MP, Minister of State at the Foreign and Commonwealth Office. We also received written evidence from NGOs, trade unions and academic institutions, and we held a valuable roundtable seminar with a number of academics and NGOs concerned with economic, social and cultural rights.[12] We also visited South Africa, where we met the South African Constitutional Court, the South African Human Rights Commission, government officials responsible for human rights implementation and lawyers, NGOs and academics, to discuss the effect and value of the entrenchment of economic, social and cultural rights in the South African Constitution. Members of the Committee also attended a seminar on South African protection of economic and social rights, organised by the University of Cape Town Law School[13] to coincide with the Committee's visit. We are grateful to all those who have assisted in this inquiry.

1 The International Covenant on Economic Social and Cultural Rights; the International Covenant on Civil and Political Rights; the Convention Against Torture; The International Convention on the Elimination of All forms of Racial Discrimination; The Convention on the Elimination of all forms of Discrimination Against Women; the Convention on the Rights of the Child. Back

2 Tenth Report, Session 2002-2003, The UN Convention on the Rights of the Child, HL Paper 117, HC 81 Back

3 Including the European Social Charter of 1961, and the International Labour Organisation Conventions Back

4 There is no right of individual or collective complaint under the ICESCR. An optional protocol which would allow for individual complaints to be brought to the CESCR is currently under negotiation. Report of the Working Group on the Draft Optional Protocol: E/CN4/2004/44. Back

5 Compiled in HRI/GEN/1/Rev.7 Back

6 The European Social Charter 1961 allows State Parties to agree to accept to be bound by a limited number of the rights it establishes. To date the UK has accepted 60 of the 72 Rights in the 1961 Charter; it has not accepted additional rights contained in the first Protocol to the Charter, or in the Revised European Social Charter of 1996. Back

7 The recent inter-departmental review of international human rights obligations declined to alter this position but confined that the question of ratification of the Revised Charter "is kept under constant review": International Human Rights Instruments: The UK's position: report on the outcome of an inter-departmental review conducted by the DCA. July 2004. Back

8 Under the 1961 Charter, the UK participates in a reporting process which requires the submission of reports every two years to the European Committee of Social Rights. The Committee then issues its conclusions, and where a violation of the Charter is found, this may then be the subject of a recommendation of the Committee of Ministers. Back

9 Key ILO Conventions to which the UK is party include C87, Freedom of Association and Protection of the Right to Organise Convention, 1948; C98 Right to Organise and Collective Bargaining Convention 1949; C29, Forced Labour Convention 1930; C105, Abolition of Forced Labour Convention, 1957; C111, Discrimination (Employment and Occupation) Convention 1958; C.138, Minimum Age Convention, 1973; C182, Worst Forms of Child Labour Convention, 1999. Back

10 ECOSOC Resolution 1985/17 United Nations Doc E/1995/85 Back

11 para. 3 above Back

12 Speakers at the seminar were: Professor Paul Hunt, Ian Byrne and Professor Stuart Weir Back