Joint Committee On Human Rights Seventeenth Report

3  Instruments and Protocols not yet ratified

Positive measures

28. We warmly welcome a number of positive measures taken by the Government in accepting additional obligations under protocols to human rights instruments to which the UK is party, in particular—

We also welcome the ratification of Protocol 14 ECHR, which provides for a number of changes to the structure and procedures of the ECtHR, in order to deal with its growing caseload and enable it to process cases more efficiently. Protocol 14 was agreed by the Council of Europe Member States on 13 May 2004, and signed by the UK two months later. It was laid before Parliament on 15 November 2004 pursuant to the Ponsonby Rule, prior to its ratification by the Government. We published a report on the Protocol shortly thereafter, on 1 December 2004.[38]

Protocol 12 ECHR

29. Protocol 12 to the ECHR guarantees a free-standing right to equality. It states—

    2 No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.

30. Protocol 12 is designed to advance the ECHR's protection of equality beyond the relatively limited guarantee in Article 14, which guarantees a right to non-discrimination only in the enjoyment of other rights under the Convention. For Article 14 to apply, therefore, it must be established that the difference in treatment falls within the scope of one of the other Convention rights.

31. Protocol 12 comes into force for those states that have ratified it on 1 April 2005.[39] The UK has not, however, signed or ratified the Protocol. In the Report of the Review, the Government states that whilst it agrees in principle that the ECHR should contain a free-standing guarantee of non-discrimination, it considers that the text of Protocol 12 contains "unacceptable uncertainties", in particular—

  • The potential application of the Protocol is too wide, since it covers any difference in treatment, applies to all "rights set forth by law" in both statute and common law and could therefore lead to an "explosion of litigation";
  • "Rights set forth by law" may extend to obligations under other international human rights instruments to which the UK is a party;
  • It is unclear, pending decisions by the ECtHR, whether the protocol permits a defence of objective and reasonable justification of a difference in treatment, as applies under Article 14 ECHR.

32. Mr Lammy, in oral evidence, confirmed that the Government intended to adopt a cautious approach: "let us see how, given our concerns, the case law develops in Strasbourg and take a view on that down the line".[40]

33. We do not believe that such a cautious approach is warranted, or consonant with the Government's aspirations to international leadership in the development of equality laws. In previous reports, we have recommended that the Government should ratify Protocol 12 ECHR, and include it within the rights protected in the Human Rights Act, in order to provide protection in domestic law equivalent to the equality rights which bind the UK internationally, under the ICCPR, CERD, and the ICESCR.[41] The rights enshrined in Protocol 12 are rights which the Government has accepted through its international commitments to human rights instruments. These commitments should in our view be given reality in national law through a free standing right of non-discrimination.

34. It is certainly the case that, as the Government contends, the scope of the equality right under Protocol 12 is wide. Beyond the obligation not to discriminate in relation to "rights set forth by law" in Article 1.1 of Protocol 12, there is an obligation of non-discrimination by public authorities, in Article 1.2, irrespective of whether any other right is engaged. Nevertheless the Government's view that Protocol 12 could lead to an "explosion of litigation" is, in our view, alarmist. As we have previously pointed out,[42] there is every reason to expect that both the UK courts and the European Court of Human Rights would apply the new Protocol in accordance with the settled principles of Strasbourg jurisprudence, including the principle of objective and reasonable justification of discriminatory treatment, by which differences in treatment may be found not to amount to discriminatory treatment. It is these principles which will make the equality guarantee in Protocol 12 a valuable, but workable protection against non-discrimination.[43] In our view, the Government's caution in refusing to ratify Protocol 12 is unwarranted, and fails to give sufficient effect in national law to the UK's international human rights obligations. We recommend that this decision should be reconsidered at an early opportunity, and that the issue should form part of the recently announced review of anti-discrimination legislation to be undertaken by the DTI.

Protocol 4 ECHR

35. The Review concludes that the UK should not ratify Protocol 4 to the ECHR. Protocol 4—

36. Rights in Article 2 of the Protocol are qualified rights, which may be subject to restrictions which are in accordance with law and necessary in a democratic society. Rights in Articles 3 and 4 are not subject to any qualification.

37. Protocol 4 to the ECHR has been ratified by 38 of the 46 Council of Europe Member States.[44] The UK has signed but not ratified Protocol 4. The Report of the Review cites—

    continuing concerns over Articles 2 and 3 of Protocol 4 which could be taken, respectively, to confer rights in relation to passports and a right of abode on categories of British nationals who do not currently have that right.

38. The report also notes that the provisions on liberty of movement and freedom to choose residence under Article 2 of Protocol 4 may also be incompatible with Armed Forces discipline.[45] We note, however, that the terms of Article 2 of the Protocol are substantially similar to those of Article 12 ICCPR, which the UK has ratified subject to reservations regarding disciplinary procedures for members of the armed forces, and regarding nationals of dependent territories and the right to enter and remain in the UK and each of the dependent territories.[46] We note that the UK is one of only a small number of Council of Europe Member States that have not ratified Protocol 4. We recommend that, at a minimum, consideration should be given to ratification with appropriate reservations to overcome the specific issues identified by the Government.

Ratification of the Optional Protocol to the Convention on the Rights of the Child on Children in Armed Conflict

39. The UK ratified this Protocol on 24 June 2003. The Protocol commits states to taking all feasible measures to ensure that members of their armed forces under the age of 18 do not take a direct part in hostilities.[47] The role and treatment of children in the Armed Forces has recently been considered by the House of Commons Defence Select Committee, which recommended that the MoD examine the potential impact of raising the recruitment age for all three Services to 18, and that the Armed Forces ensure that those under 18 years of age are only placed in training environments and accommodation suitable for their age.[48] We welcome these proposals as supporting the obligations undertaken by the UK in ratification of the Protocol.

40. Whilst we welcome ratification of the Protocol, we retain the concern expressed in our Report on the UN Convention on the Rights of the Child in relation to the interpretative declaration made by the UK on ratification of the Protocol. The interpretative declaration states—

    The United Kingdom understands that article 1 of the Optional Protocol would not exclude the deployment of members of its armed forces under the age of 18 to take a direct part in hostilities where: -

    a) there is a genuine military need to deploy their unit or ship to an area in which hostilities are taking place; and

    b) by reason of the nature and urgency of the situation:-

    i) it is not practicable to withdraw such persons before deployment; or

    ii) to do so would undermine the operational effectiveness of their ship or unit, and thereby put at risk the successful completion of the military mission and/or the safety of other personnel.

41. As we stated in our previous report, we consider this declaration to be overly broad, and to undermine the UK's commitment, undertaken in the Protocol, not to deploy under-18s in conflict zones.

Revised European Social Charter

42. The UK is a party to the European Social Charter 1961, the Council of Europe treaty which protects economic, social and cultural rights. The Revised European Social Charter, which contains extensions of the rights set out in the Social Charter of 1961, and some additional rights, was agreed in 1996. The UK has signed, but has not as yet ratified, the Revised Charter. The report of the Review states that "the question of future ratification of the revised charter is kept under constant review"[49] but does not provide any reasons for continued non-ratification of the Revised Charter.

43. There is also a collective complaints procedure under a 1995 Additional Protocol to the Charter, which allows trade unions, employers' organisations or NGOs to bring complaints against States for non-binding decision by the European Committee of Social Rights. To date, the UK has not accepted the right of collective complaint, a position which contrasts with UK acceptance of recourse to the European Court of Human Rights in respect of the ECHR, the Charter's equivalent Council of Europe treaty in the field of civil and political rights. The Institute of Employment Rights in its evidence stated that: "the continuing failure to ratify the collective complaints protocol is particularly egregious" given the UK's poor record of compliance with the Charter.[50]

44. Mr Lammy told us there was some anxiety about how the provisions of the revised Charter would be interpreted under the collective complaints mechanism. However, he assured us that there was an intention to ratify the Revised Charter at a future date.[51] We welcome this, and recommend that the Government should consider ratification of the revised charter and the collective complaints mechanism at an early date.

34   Report on International Human Rights Instruments, Appendix 4 Back

35   ibid. Back

36   ibid. Back

37   We welcomed the government's intention to ratify this protocol in our Tenth Report of Session 2002-03, op cit., HL Paper 117, HC 81, para. 91 Back

38   First Report of Session 2004-05, Protocol No 14 to the European Convention on Human Rights, HL Paper 8, HC 106 Back

39   Protocol 12 has so far been ratified by Albania, Armenia, Bosnia and Herzegovia; Croatia; Cyprus; Finland; Georgia; the Netherlands; San Marino; Serbia and Montenegro; and Macedonia.  Back

40   Q 11 Back

41   Twenty-first Report of Session 2003-04, The International Covenant on Economic, Social and Cultural Rights, HL Paper 183, HC 1188, para.113; Fourteenth Report of Session 2004-05, The Convention on the Elimination of Racial Discrimination, HL Paper 88, HC 471; Sixth Report of Session 2002-03, The Case for a Human Rights Commission, HL Paper 67-I, HC 489 Back

42   Twenty-first Report of Session 2003-04, op cit., HL Paper 183, HC 1188, para. 113 Back

43   Robert Wintemute, Filling the Article 14 "Gap": Government Ratification and Judicial Control of Protocol No 12 ECHR, [2004] EHRLR 485 Back

44   Protocol 4 has been ratified by all Member States except Andorra, Greece, Liechtenstein, Monaco, Spain, Switzerland, Turkey, and the UK. Back

45   Q 8 Back

46   Report on International Human Rights Instruments, Appendix 6, page 6 and 9 Back

47   Article 1 Back

48   Defence Committee, Third Report of Session 2004-05, Duty of Care, HC 63-I. See also Memorandum of the Religious Society of Friends (Quakers) to the Defence Committee in their Third Report of Session 2004-05, Duty of Care, HC 63- II, Ev 402 Back

49   Report on International Human Rights Instruments, Appendix 6 Back

50   Ev 22 Back

51   QQ 27-28 Back

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