A human rights plan of action
80. A number of other recommendations of the CESCR
also relate to ways of achieving progressive realisation of rights.
One recommendation was that there should be a national human rights
plan of action, which a recommendation of the Vienna Declaration,
which followed the UN World Conference on Human Rights of 1993.
The CESCR urged the UK—
… to prepare, as soon as possible, a national
human rights plan of action in accordance with paragraph 71 of
the 1993 Vienna Declaration and Programme for Action.[111]
81. The idea of a plan of action, or of some equivalent
form of clearly set out programme of action for the implementation
of the Covenant rights, is inherent in the idea of progressive
realisation.[112] At
the UN World Conference Against Racism held in Durban in 2001,
the Government agreed an Action Programme that committed each
signatory to draw up a national action plan in consultation with
minority communities and NGOs. The Committee on the Administration
of Justice (CAJ) suggested that in relation to key Covenant rights
the government should—
… have a plan which sets targets and timetables,
and arises from an open, public, transparent and participative
process wherein decision-makers have been held properly to account
and alternatives have been actively considered … Only in
this way can the government show that it is genuinely seeking
to meet its obligations fully and to progressively realise its
obligations.[113]
82. Mr Rammell took the view that a plan of action
would not at present be appropriate, but stressed that it was
a matter for the Department of Constitutional Affairs. The Committee
put the point to Lord Falconer when he gave oral evidence in December
2003.[114] He suggested
that consideration of the proposal should await the outcome of
the review of the UK's international human rights obligations
(which has now concluded), and the establishment of a Commission
for Equality and Human Rights.[115]
83. One precedent for a national plan of action on
human rights is South Africa, where a National Plan of Action
was drawn up by government, in consultation with the South African
Human Rights Commission and civil society, and published in 1998.[116]
The plan was expressly designed to follow the recommendation of
the Vienna Declaration and Programme for Action.[117]
We have some scepticism about the efficacy of a national plan,
which risks being drawn up in such broad terms that it does no
more than impose a formalistic reporting process on departments
already at risk of reporting fatigue. However, the commitment
to progressive realisation does demand that some attempt is made
to set benchmarks and measure progress against them. It would
in our view be helpful for the government to draw together the
broad outlines of its policy on human rights. This could take
forward the recent review of international obligations;[118]
but most importantly it could set out the general principles of
how the UK's domestic and international human rights obligations
are to be implemented, including its obligations under the ICESCR.
In our view, the recent conclusion of the UK's review of international
obligations, and decision to establish a Commission for Equality
and Human Rights, makes this an opportune time for the Department
of Constitutional Affairs to prepare a statement on how the government
proposes to address its human rights obligations in action. The
CEHR might then develop, with government, ways of measuring progress
in achieving progressive realisation of key rights.
Protection of the Covenant rights
in Parliament
84. Parliament too has an important role to play,
in ensuring the accountability of government against economic,
social and cultural rights standards. It also has a role in scrutinising
legislation for compatibility with ICESCR standards. We have adopted
a policy of scrutinising all legislation introduced to Parliament
against all international human rights standards, including economic,
social and cultural rights under the ICESCR, the European Social
Charter, and the instruments of the International Labour Organisation.
We have regularly made reference to the Covenant rights in legislative
scrutiny and have drawn attention to potential incompatibilities
with economic, social and cultural rights standards.[119]
While government departments themselves scrutinise proposed legislation
for compliance with ECHR rights, they do not, at least in any
explicit way, undertake this scrutiny in respect of ICESCR rights,
or in respect of other rights protected in international but not
in national law.
85. A statement under section 19 of the HRA must
specify that the Minister responsible for a Bill has considered
the compliance of the Bill's provisions with the Convention rights,
and must certify either that the Minister is satisfied that the
Bill complies with the ECHR, or that although the Bill may not
so comply, the Minister nevertheless wishes to proceed with the
Bill. The section 19 process provides the catalyst for Parliament's
informed scrutiny of the human rights implications of the Bill.
86. The section 19 process can operate equally effectively
in relation to economic, social and cultural rights, as in relation
to the principally civil and political rights protected under
the Human Rights Act. From our own experience of this scrutiny,
we can see no impediment created by the nature of the rights contained
in the ICESCR to the application of a section 19 type mechanism
to these rights. In our view, an obligation on government to address
compliance with these rights at an early stage, before the introduction
of a Bill to Parliament, would significantly enhance protection
of the Covenant rights. It would also assist Parliament, and the
JCHR, in its scrutiny of legislation, and enrich parliamentary
debate on matters affecting economic, social and cultural rights.
87. One means of addressing this would be for the
government to decide as a matter of policy to include in the explanatory
notes published with a Bill on its introduction to Parliament,
a statement as to whether the Bill is considered to comply with
ICESCR rights, and a short explanation, where appropriate, of
why this is considered to be the case. This could take a similar
form to the explanation of compliance with ECHR rights which is
currently as a matter of practice included in the explanatory
notes. This is a practice which the government could also consider
extending to other aspects of the UK's international human rights
obligations, including for example its obligations under the Convention
on the Rights of the Child, the Convention on the Elimination
of all forms of Racial Discrimination, or the Convention on the
Elimination of all forms of Discrimination Against Women.
88. We recommend that the government should build
on existing practice by extending the aspects of explanatory notes
to Bills which enlarge on the section 19 statement to include
a discussion of conformity or non-conformity with international
human rights obligations. We further recommend that a timely opportunity
be sought to introduce legislation to make such a human rights
impact assessment a duty.
102 Sixth Report, Session 2002-03, The Case for
a Human Rights Commission, HL Paper 67-I, HC 489-I Back
103
Concluding Observations, para. 24 Back
104
Eleventh Report, Session 2003-04, Commission for Equality and
Human Rights: Structure, Functions and Powers, HL Paper 78,
HC 536 Back
105
ibid., para. 32 Back
106
Section 71 of the 2000 Act requires listed public authorities
to have due regard to the need to eliminate unlawful racial discrimination,
and to promote equality of opportunity and good relations between
racial groups. Back
107
Section 75 requires public authorities to have due regard to the
need to promote equality of opportunity in the performance of
its functions. Public authorities are required to submit equality
schemes to the Northern Ireland Equality Commission. The Commission
may either approve the scheme or refer it to the Secretary of
State, who may request the public authority to revise the scheme,
or alternatively, may substitute a scheme for that prepared by
the public authority. Back
108
ibid, para. 31. Commission for Racial Equality, Towards Racial
Equality: An evaluation of the public duty to promote race equality
and good race relations in England and Wales (2003); Colm
O'Cinneide, Taking equal opportunities seriously: the extension
of positive duties to promote equality (2003). Back
109
Professor Christopher McCrudden, Mainstreaming Human Rights,
in Human Rights in the Community: Rights as Agents for Change,
Colin Harvey, ed. (2004); McKeever and Ni Aolain, Enforcing
Social and Economic Rights at the Domestic Level-A Proposal,
[2004] 2 EHRLR 158, proposing the extension of the section 75
duty to include a duty to promote equality on the grounds of socio-economic
status, and stressing the potential of section 75, together with
the Northern Ireland programme "New Targeting Social Need"
to mainstream economic and social rights in the public sector. Back
110
McCrudden, 2004, op cit Back
111
Concluding Observations, para. 27 Back
112
General Comment No. 3, para. 4 Back
113
Appendix 9, Ev 80 Back
114
Minutes of Evidence taken before the Joint Committee on Human
Rights, 8 December 2003, HL Paper 45, HC 106-i Back
115
Q 25 Back
116
The National Action Plan was lodged with the United Nations on10
December 1998 Back
117
National Action Plan for the Promotion and Protection of Human
Rights, Introduction, page 10, page 18. Back
118
International Human Rights Instruments: the UK's Position. Report
of the Outcome of an Interdepartmental Review by the Department
of Constitutional Affairs. 1 July 2004 Back
119
Including for example in reports passim on the Housing
Bill 2002; the Nationality Immigration and Asylum Bill 2002; the
Asylum and Immigration (Treatment of Claimants) Bill 2003. Back
