Joint Committee On Human Rights Twenty-First Report

5 Economic, social and cultural rights in policy development

Economic, social and cultural rights within government

75. Protection of economic, social and cultural rights through the courts is only one element of their implementation. In relation to the Human Rights Act, the JCHR has stressed that developing a "culture of rights" through changing practice in public bodies, and developing public policy and practice in accordance with human rights standards, is crucial to the effective implementation of the Act.[102] Such measures are of particular importance in relation to certain "programmatic" aspects of economic, social and cultural rights, which require the implementation of strategies for progressive realisation of rights. The CESCR recommendations recognised the importance of using the Covenant in policy development within government—

The Committee further recommends … that the State party review and strengthen its institutional arrangements, within the government administration, which are designed to ensure that its obligations under the Covenant are taken into account, at an early stage, in the Government's formulation of national legislation and policy on issues such as poverty reduction, social welfare, housing health and education … the Committee urges the State party to give careful consideration to its general comments and statements when formulating polices that bear upon economic social and cultural rights.[103]

76. In our previous reports on the establishment of a "culture of human rights" under the guidance of a new Commission for Equality and Human Rights, we have recognised the need for greater mainstreaming of human rights in the development of government policy. In light of this, we have recommended the creation of a "positive" or "general" duty on public bodies to promote the rights protected under the Human Rights Act 1998.[104] We have stated that—

Requiring public authorities to assess all of their functions and policies for relevance to human rights and equality, and in the light of that assessment to draw up a strategy for placing human rights and equality at the heart of policy making, decision making and service delivery, would be an effective way of achieving the mainstreaming of human rights and equality which will be one of the [Commission for Equality and Human Rights'] principal purposes.[105]

77. Analogous duties of promotion exist in the UK equality sector, in particular under the Race Relations (Amendment) Act 2000,[106] and under Section 75 of the Northern Ireland Act.[107] Studies of the operation of these regimes in practice have suggested that they have a real and valuable impact in combating inequality.[108] Positive duties under the Race Relations (Amendment) Act and under section 75 of the Northern Ireland Act may provide models for mainstreaming of economic, social and cultural rights in policy development.[109]

78. In particular, the requirement under the Northern Ireland legislative scheme that equality "impact assessments" be carried out for policy or legislative proposals, may provide a model for economic, social and cultural rights integration in policy development. The impact assessment process has been credited not only with maintaining equality as a central policy concern, but also with establishing a more participatory approach to policy development and the application of equality standards, through the involvement of civil society in scrutiny of impact assessments.[110]

79. In our view it is essential to effective implementation of the Covenant that economic, social and cultural rights should be used as a framework for government policy development. Structures should be developed for assessing the impact of new policy and legislative proposals on protection of the Covenant rights, and on the obligation to progressively realise economic, social and cultural rights.

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

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