Joint Committee On Human Rights Twenty-First Report

10 The reporting process

149. The CESCR's General Comment No 1 identifies the objectives of the reporting process as—

—  to facilitate a comprehensive review by a State of its rules, procedure and practice in implementing the Covenant;

—  to ensure the ongoing monitoring by a State of its rules, procedure and practice in implementing the Covenant;

—  to allow a State to demonstrate the extent to which it has developed policies and programmes to progressively implement the Covenant;

—  to facilitate public scrutiny of relevant government policies;

—  to provide a basis on which the State, together with the Committee, can evaluate progress towards realisation of the obligations in the Covenant;

—  to identify the factors and difficulties inhibiting implementation of the Covenant;

—  to facilitate exchange of information among States, and so encourage a better understanding of the common problems they face.[228]

150. The periodic reporting process under the ICESCR offers the opportunity for domestic debate on how economic, social and cultural rights can and should be protected. The potential value of the reporting process under this and other UN human rights instruments is that it provides a regular link between domestic policy and legal debates and the international system of rights protection.

151. For the scrutiny of the CESCR and the work of government in contributing to the reporting process to be worthwhile, and to have tangible benefits in the implementation of the Covenant rights, it must be integrated with the development of domestic law and policy. This requires wide awareness of the Covenant obligations at all levels of government, and a commitment to continuous scrutiny and review to advance Covenant rights. Beyond government, the reporting process will also be most effective if it involves both Parliament and civil society.

Departmental responsibility for the ICESCR

152. Currently, the Foreign Office is the lead department in the preparation of the report to the CESCR and the subsequent scrutiny process. In the preparation of the report, the FCO consults with other relevant government departments. The ICESCR report is the only report to a UN treaty body for which the FCO has lead responsibility (though in respect of each report it has a role in formally submitting the report to the UN in Geneva, and in providing information for the report on the Overseas Territories). A number of the NGOs that submitted written evidence reported that they had found departmental responsibility for preparation of the ICESCR report unclear or difficult to establish.[229]

153. Mr Rammell, in oral evidence, acknowledged that responsibility for the ICESCR reporting process sat uneasily with FCO responsibilities, noting that "there is something of an anomaly that the FCO leads on preparing this report since we do not lead on any of the explicit policy areas apart from in respect of the overseas territories". He noted that discussions were going on, at both official and ministerial levels, between the FCO and the DCA as to where departmental responsibility for the report should properly lie. He acknowledged that "given the new DCA's domestic focus of its human rights unit, there is clearly a strong logic to the DCA playing a central role". [230]

154. Lord Falconer noted that discussions between departments were still continuing but acknowledged the logic of central responsibility in the DCA. He continued—

I also see that the Department, wherever the formal responsibility is, will have the meat, and the burden of determining what is happening in order to discharge the responsibility of reporting back on the review will be primarily mine. There will be other departments involved as well, but obviously we have a responsibility in that respect.[231]

155. In our view it is unsatisfactory that the Foreign Office should have lead responsibility for a report which primarily concerns detailed and complex issues of domestic law and policy. Locating responsibility for the ICESCR within the FCO encourages a view of the Covenant as principally a matter of international diplomacy, and the reporting process as a largely procedural matter, and discourages an understanding of the Covenant as a set of rights and standards, the implementation of which has practical implications for everyday life in the UK. The substance of ICESCR rights protection clearly concerns a number of government departments: the Department for Work and Pensions, the Department of Health and the Department for Education and Skills would all have substantial responsibilities related to the Covenant rights. Nevertheless, the Department of Constitutional Affairs, as the department with responsibility for domestic human rights matters, has a more central interest in the implementation of the Covenant in the UK. We recommend that the co-ordination of the reporting process under the ICESCR should be transferred to the Department of Constitutional Affairs.

Co-ordination between departments

156. As we have noted, the ICESCR concerns responsibilities across many government departments, as well as departments within the devolved administrations. Mr Rammell noted that, although the preparation of the report and dissemination of the concluding observations was undertaken by the FCO, implementation of the Covenant rights in the area of responsibility of a particular department was very much a matter for that department.[232] FCO written evidence confirmed that, once the concluding observations are received, they are disseminated to all Government Departments, Overseas Territories and Crown Dependencies which have responsibilities under the ICESCR.[233] The FCO's role goes no further. Its evidence states—

Individual Government Departments are responsible for ensuring compliance with the ICESCR in respect of their policies and implementation of the rights contained in the Covenant. Overall monitoring of the UK's compliance with the ICESCR is the responsibility of the relevant treaty monitoring body, the CESCR. The Concluding Observations of the Committee are used by individual Government Departments to review where appropriate their compliance with the ICESCR, particularly where the Concluding Observations make specific recommendations with regard to compliance.[234]

157. Suggestions were put to us for a more active government response to the concluding observations, including the establishment of a cross-departmental review group in Whitehall and in each of the devolved administrations;[235] and the preparation of a plan of action to give effect to the concluding observations, including agreed targets and timeframes.[236] Mr Rammell acknowledged that "it is arguable that we need a more formalised structured procedure for analysing and responding to recommendations, department by department".[237] We agree that the current system too readily allows the concluding observations to be forgotten, or put aside until the next reporting round.[238] There should be a body within government that drives progressive implementation of the Covenant rights, and that works in conjunction with the CESCR, through responding to the concluding observations, to do this. In our view, more active co-ordination in the implementation of the Covenant is needed. In particular, the co-ordinating department should follow up with other government departments on their response to the concluding observations, and on the implementation measures they propose. The DCA human rights unit would in our view be well placed, given its responsibility for implementation of human rights in government, to take an active role in ensuring implementation of the Covenant rights, in the context of the CESCR concluding observations. It should work together with the new Commission for Equality and Human Rights to develop an effective reviewing mechanism for implementation of economic, social and cultural rights.

Co-ordination with the devolved administrations

158. We received evidence from NGOs working in Northern Ireland that the devolved administrations were not sufficiently involved in the reporting process. The CAJ argued that "the devolved administrations must and should have a vital role to play in developing the UK's report to thee UN".[239] Save the Children Northern Ireland/Children's Law Centre suggested that "one government department in each jurisdiction needs to be given lead responsibility for taking forward the implementation of the concluding observations … The lead department should have responsibility for the development of a co-ordinated, integrated plan of action, involving all relevant departments, to give effect to the concluding observations".[240] We recommend that the devolved administrations should also identify a department with lead responsibility for implementation of obligations under the ICESCR, and for taking forward the concluding observations.

The role of human rights commissions

159. We see a substantial role for the new Equality and Human Rights Commission in furthering implementation of the Covenant rights. That role should in our view include contributing to the consideration of the UK Report in the CESCR. The only human rights commission so far established in the UK, the Northern Ireland Human Rights Commission (NIHRC) has played an active role in informing the reporting process. However, written evidence from the NIHRC states that it was not consulted during the drafting of the UK Fourth Report and was not provided with a copy of the report.[241] The NIHRC, and, when established, the Scottish Human Rights Commission and the Commission for Equality and Human Rights should be kept informed of the reporting process at all stages. The Commissions have an important role in providing independent commentary on the State report, in providing authoritative information to the CESCR, and in informing the public and facilitating debate on the Covenant rights and UK implementation of them.

Liaison with NGOs, civil society and the public

160. It appears from the written evidence, both of NGOs and of the FCO, that government has not actively sought to involve NGOs in the reporting process. The NIHRC points out in its written evidence that trade unions, employer organisations and NGOs, were not kept informed of the reporting process during the last reporting cycle. A number of NGOs (with previous involvement in the CESCR reporting process) state that they were not informed of the report's publication, or consulted during its preparation, or sent copies of the concluding observations. Oxfam regretted the lack of collaboration between government and the voluntary sector in the preparation of the report, and pointed out that no evidence had been sought from those living in poverty to inform the government's report. Oxfam called for dialogue between the voluntary sector and the government to explore how the process might be improved to incorporate the experience of those living in poverty.[242] More generally, Democratic Audit expressed concern about "the general lack of publicity and debate on the ICESCR reporting process within all sectors, as well as the general ignorance about ESC rights in the UK", and considered that the government was not doing enough to fulfil its responsibilities under the Covenant to ensure that the public was fully informed about the reporting process.[243]

161. Consultation with interested organisations, including circulation of draft reports for comment, does appear to take place more thoroughly in relation to the reports under other UN human rights treaties, for example the ICCPR, and CERD. The FCO evidence acknowledges that: "there are no formal procedures for directly disseminating the concluding observations beyond Government. Individual government departments are responsible for deciding how far they wish to disseminate the concluding observations".

162. The FCO evidence notes that the Department of Constitutional Affairs' NGO Forum on Human Rights has established a sub-committee to monitor progress on the implementation of recommendations of each of the international treaty bodies, including the CESCR (though ICESCR compliance has not as yet been considered—there has been only one meeting of the sub-committee so far). We welcome the potential of the NGO forum to involve NGOs in the reporting process under the ICESCR. Beyond this, however, we hope that efforts can be made to involve NGOs outside of the forum, in particular those concerned with issues of poverty and access to social services, as well as trade unions and employers' organisations.

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228   General Comment No. 1, Reporting by States Parties, 24/02/89 Back

229   For example see written evidence of the Committee on the Administration of Justice (Appendix 9) or from the Children's Law Centre and Save the Children UK in Northern Ireland (Appendix 6)  Back

230   Q 15 Back

231   Q 49 Back

232   Q 7  Back

233   Appendix 1 Back

234   ibid., para. 8 Back

235   Appendix 4 Back

236   Appendix 6 Back

237   Q 1  Back

238   Written evidence of Democratic Audit is critical of the failure to demonstrate sustained follow-up and policy and legislative changes in response to the CESCR's conclusions and recommendations (Appendix 11) Back

239   Appendix 9 Back

240   Appendix 6 Back

241   Appendix 4, para. 59 Back

242   Appendix 17, para. 50 Back

243   Appendix 11 Back

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Prepared 2 November 2004