6 Protection of the Covenant rights by
a Commission for Equality and Human Rights
89. The decision to establish a Commission for Equality
and Human Rights offers an opportunity to further the protection
and promotion of the international human rights standards accepted
by the UK, including those in the Covenant. The Covenant standards
of economic and social rights present an opportunity to the Commission
to draw together its work in promoting and achieving equality
in public services and the workplace on the one hand, and in promoting
and protecting human rights. In its concluding observations, the
CESCR recognised the importance of a Human Rights Commission in
this regard, and urged the creation of a commission "with
a mandate to promote and protect all human rights, including economic,
social and cultural rights".[120]
The recent DTI White Paper Fairness for All: A New Commission
for Equality and Human Right" proposes that—
The CEHR will … play a role in promoting public
awareness and understanding of human rights, and the responsibilities
associated with them, including those arising from the international
agreements on human rights to which the UK is a signatory.
90. In oral evidence, Mr Rammell also took a positive
approach to the potential of the new Commission in relation to
the Covenant rights, although he recognised that the government—
… would need to think through very carefully
how it would work and how it would interrelate with the work that
we are undertaking to implement the covenants.[121]
91. The Covenant standards of economic and social
rights present an opportunity to the Commission to draw together
its work in promoting and achieving equality in public services
and the workplace on the one hand, and in promoting and protecting
human rights. In a new integrated Commission, application of the
Covenant standards could in our view helpfully inform and give
coherence to both the "equality" and the "human
rights" strands of the Commission's work.
92. There are useful precedents for human rights
commissions playing a prominent role in protection of ESC rights.
One of the core functions of the South African Commission, under
section 184(3) of the Constitution, is to require information
from all government departments, annually, on their progress towards
better protection of economic and social rights, and to publish
their conclusions from this research.[122]
The Commission has developed a set of questionnaires or "protocols"
on each of the economic and social rights, as a basis for assessing
progress in the realisation of the rights. It publishes an Annual
Report on Economic and Social Rights, containing the information
collected through this process, which includes recommendations
on measures to be taken to further implement the constitutional
rights.[123] This constitutional
role for the Commission recognises that the realisation of economic,
social and cultural rights is not achieved solely in the courts,
and is seen as a significant element of the constitutional checks
and balances that operate in relation to the Bill of Rights.
93. The Northern Ireland system for protection against
discrimination, under section 75 of the Northern Ireland Act,
may also provide a useful model for enforcement of economic, social
and cultural rights. The Northern Ireland Equality Commission
has a role in approving the Equality Schemes required under section
75, and has a duty to investigate complaints against public authorities
for non-compliance with approved equality schemes. Failure of
a public authority to comply with recommendations of such an investigation
may result in the Commission referring the matter to the Secretary
of State, who may direct the public authority to take appropriate
steps.[124]
94. Whilst a comprehensive annual review of all ESC
rights protection would be a very ambitious undertaking for the
new CEHR, we see the potential for some review of protection of
the Covenant rights, preferably on a regular basis, to form a
useful part of the programme of work of the Commission. Given
the particular importance for economic, social and cultural rights
protection of "programmatic" enforcement in the development
and implementation of policy, by government and public bodies,
the Commission could play a valuable role in reviewing this enforcement.
95. The CESCR has suggested that national human rights
institutions could have a number of functions in this regard,
including: promoting educational and information programmes; scrutinising
both existing laws and Bills for ICESCR compliance; providing
technical advice and conducting surveys on ESC rights; identifying
national level benchmarks for the realisation of ESC rights; conducting
research and inquiries on the practical realisation of ESC rights;
monitoring compliance with ICESCR rights; and examining individual
complaints of breaches of these rights.[125]
96. Education and training on the Covenant rights
is one area where the new Commission might fill a gap particularly
highlighted in the CESCR concluding observations—
… to ensure that human rights education curricula
and training programmes for schoolchildren and for the judiciary,
prosecutors, government officials, civil servants and other actors
responsible for the implementation of the Covenant give adequate
attention to economic, social and cultural rights.[126]
97. Democratic Audit also expressed concern about
the general lack of awareness of ESC rights in the UK, and highlighted
the need for education and information provision.[127]
The Children's Rights Alliance stated that "there has been
no systematic dissemination of information about the Covenant
to children or adults, nor any systematic valuation of children's
rights." It noted that although citizenship education became
a statutory subject from September 2002, initial guidance on citizenship
for primary schools does not refer to human rights.[128]
98. Our inquiry has also suggested that there is
a dearth of information amongst civil society on economic, social
and cultural rights, and on the reporting process under the Covenant.
We consider this matter in more detail in Chapter 10. We would
envisage the CEHR having a key role in providing information to
civil society, and in encouraging and facilitating civil society
participation in discussions and consultations on economic, social
and cultural rights protection.
99. The examination of individual complaints does
not fit with the form of Commission proposed by the government,
or indeed by us.[129]
It is also envisaged that, following the establishment of the
new Commission, the JCHR will retain the primary responsibility
for providing human rights scrutiny of Bills.[130]
Several functions of the new CEHR, proposed in the White Paper
Fairness for All, could be used by the new Commission to
contribute to implementation of the Covenant rights. These include—
— Promoting
awareness of the Covenant rights, alongside other human rights
standards, in the public sector, in private sector organisations
carrying out public functions, and amongst the general public;[131]
— Advising Ministers (or
the Scottish Executive or Welsh Assembly Government) or making
proposals to them on current or proposed laws and their impact
on the Covenant rights;[132]
— Research on implementation
of Covenant rights, and using the Covenant rights to inform more
general research and analysis;[133]
— Training and education
on economic, social and cultural rights;[134]
— Carrying out general
inquiries related to the Covenant as well as other human rights
standards;[135]
— Making third party interventions
in the courts to inform the court about relevant Covenant standards
in appropriate cases.[136]
100. Beyond the functions expressly proposed for
the Commission in the White Paper, its role in the promotion and
protection of ESC rights could also extend to—
— contributing
to the review of UK Periodic Reports by the CESCR;[137]
— contributing to, or
commenting on, strategies or plans of action that implement Covenant
rights;
— preparing codes of practice
for public authorities in relation to, for example, the right
to education.
101. We recommend that the government should give
consideration to how these functions might be provided for under
the Commission's founding legislation.
120 Concluding Observations, para. 28 Back
121
Q 51 Back
122
The Commission must issue an annual request to relevant organs
of state each to provide it with "information on the measures
they have taken towards the realisation" of economic and
social rights. Back
123
SAHRC, 4th Annual Economic and Social Rights Report,
2000-2002 Back
124
McCrudden, 2004, op cit Back
125
General Comment No. 10 on the Role of National Human Rights Institutions
in the Protection of Economic Social and Cultural Rights Back
126
Concluding Observations, para. 30 Back
127
Appendix 11 Back
128
Appendix 7. Qualification and Curriculum Authority (2000) Personal,
social and health education and citizenship at key stages 1 and
2, Initial Guidance for Schools. Back
129
Department for Trade and Industry, Fairness for All: A New
Commission for Equality and Human Rights, Cm 6185, May 2004 Back
130
ibid., para. 3.28 Back
131
ibid., paras. 3.9, 3.13 Back
132
ibid., paras. 3.35-3.36 Back
133
ibid., para. 3.39 Back
134
ibid., para. 3.40 Back
135
ibid., para. 4.3 Back
136
ibid., para. 4.11 Back
137
The Northern Ireland Human Rights Commission, which is the only
human rights commission already established in the UK, has played
an active role in commenting on the State Report, informing the
dialogue with the CEHR in Geneva, and commenting on the concluding
observations, in respect of the ICESCR as well as the reporting
processes under the other UN human rights treaties. Back
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