Joint Committee on Human Rights Minutes of Evidence


Examination of Witnesses (Questions 47-59)

MR ROGER JEARY, MR JOHN USHER, MS HANNAH REED AND MS CAROLYNE WILLOW

14 JANUARY 2008

  Chairman: We are now going into our second session for the afternoon. We are joined by Carolyne Willow, who is the National Co-ordinator for the Children's Rights Alliance for England; Roger Jeary, Director of Research, and John Usher, Legal Officer of Unite the Union; and Hannah Reed from the Trades Union Congress. Welcome to you all. I think we have got some declarations of interest at the start.

  John Austin: Could I just place on record that I am a member of Unite,

  Lord Morris of Handsworth: And me.

  Mr Sharma: Me too.

  Earl of Onslow: I am not!

  Dr Harris: I am a member of the BMA, I do not know whether that counts.

  Q47  Chairman: No, the BMA does not count, not in this context. We have got four of you so do not feel that everybody has to answer every question if it has been answered already otherwise we will be here for an awfully long time. We are a little bit late so if you could make your answers as succinct as possible. Perhaps I could start off by asking Carolyne, do you welcome the debate on a Bill of Rights?

  Ms Willow: Yes, we do. We have set out five main reasons for that. First, despite the Human Rights Act and all the international treaties that the UK has helped to draft and has ratified there continues to be grave lack of public awareness and understanding of human rights in the UK, so we see this as an opportunity to assert human rights principles and requirements. Secondly, we believe that children now enjoy a much higher political priority nationally, internationally and across all the main political parties, so we very much hope that something substantial and good comes out of this process for children. Thirdly, given the cross-party support to end child poverty, we very much hope that social and economic rights, which we may come to, will not be dismissed out of hand and will be given serious consideration. Fourthly, there is now a mass of evidence of the UK's human rights failings and in my sector, the children's rights sector, this is very well documented so we feel that there is unprecedented pressure to actually increase the rights that children in particular have. Finally, we hope that this process allows us to revisit questions about what an effective remedy is for vulnerable groups of people like children, so not only the content of a Bill of Rights but also the process. We do have serious reservations, as I am sure you would expect, in relation to any dilution of the UK enforceable rights as they currently stand, the Human Rights Act, but we are very willing to be optimistic at this stage.

  Q48  Chairman: Hannah, could I ask you, from the trade union point of view do you think it is a good idea to have a debate?

  Ms Reed: The TUC welcomes the debate and, indeed, the Government's Green Paper on The Governance of Britain looking again at our constitutional arrangements and opening up a national debate as to whether there should be a Bill of Rights. The TUC's view is that if we do move towards developing a Bill of Rights in the UK there are two bottoms lines. First of all, we believe that the existing European Convention rights are non-negotiable and we would be very concerned about any moves to derogate from existing Convention rights. Perhaps more importantly from the trade union perspective, we hope that the debate on the Bill of Rights gives us an opportunity within Britain to explore the possibility of building on existing Convention rights, particularly increasing the range of collective rights and trade union rights across the UK. Trade union rights to bargain collectively, for trade unions to organise and, indeed, the right to strike are well-established within international human rights principles and laws. We are signatories within the UK to those minimum standards and we welcome the debate on the Bill of Rights as a means of ensuring that individuals and trade unions across the UK are able to access those rights within the UK.

  Q49  Chairman: Roger, how do you think the people you represent would benefit from a British Bill of Rights?

  Mr Jeary: Firstly, we would have to say from Unite that we share the views Hannah has just expressed about welcoming a debate on this issue, but in terms of a Bill of Rights itself we would be concerned as to what was in fact included within it and the extent of a Bill of Rights before we came to a conclusion that was the answer for our members. We do see a Bill of Rights as potentially providing a mechanism for benefiting our members within Unite to extend the collective rights which currently exist within the UK. As Hannah has referred to, there are many international standards which the UK Government has signed up to but a number of those, as has been recorded on a number of occasions, the UK Government has failed to provide or deliver and, in fact, has been in breach of those rights. A Bill of Rights for our members would certainly provide the opportunity, provided that a Bill of Rights included collective rights. We would have severe reservations were we to go down the road of a Bill of Rights which did not include collective rights and we would see that as worse than not having a Bill of Rights at all. We think the potential for a Bill of Rights does provide our members with an opportunity to actually address one of the issues which Unite has been hammering on about for the last two or three years and that is creating a level playing field within Europe which we believe currently British workers do not enjoy. We have registered our views on that on a number of occasions with different select committees and government ministers and the disadvantages that brings to British workers when choices are made about closures of factories and outsourcing of jobs, we believe as a result of most of the other Member States, in particular the 12 new accession states to the EU, all of which have included, with the exception of Malta, the issue of collective rights within their constitutions and that is something which we believe would be of great benefit to our members, to share the same level of benefit that gives to workers.

  Q50  Baroness Stern: I want to ask you a few questions about the content of a possible Bill of Rights and we have already started this discussion. I would like to start by asking Carolyne, you have already said that you would like a British Bill of Rights to incorporate the UN Convention on the Rights of the Child in order to give better protection to children and I wonder if you could give some practical examples of what difference this would make and why it would be a good thing to do.

  Ms Willow: Okay. There are some specific examples where children would benefit right now were the CRC incorporated. Those include the duty on the state to disseminate human rights information, which is a fairly uncontroversial duty, and right to access information. There is an overarching right in the Convention on the Rights of the Child in Article 12 to express views and to have those views given due consideration, so that would apply in all settings and in all decision-making processes. The right of the child to know who their parents are and to give consent to adoption. These are examples that are not currently reflected in domestic law. The right to privacy in civil and criminal proceedings. Article 40 of the Convention on Rights of the Child gives an extremely strong privacy protection to children which is not reflected in domestic law. Appearance in court and custody as a very last resort, that is another example of where the Children's Convention has tailor-made human rights for taking account of children's developing states and particular vulnerabilities. Our current position is that we would want the Convention on the Rights of the Child incorporated in its entirety without the reservations and with the optional protocols and, in addition, we would see there is a strong case for a children's section within a Bill of Rights so they have the incorporated rights within the CRC. This is where the evolution of the Convention on the Rights of the Child has brought us: new thinking and new jurisprudence from the Committee on the Rights of the Child. The children's section could include a range of things, including a duty on all those bodies carrying out a public function to positively uphold the rights of the Convention on the Rights of the Child having particular regard to Articles 2, 3, 6 and 12. These are the four Articles in the Convention on the Rights of the Child that the UN Committee has designated as general principles which run across all the rights in the Convention and they relate to non-discrimination, the child's best interest, the right to life and maximum development and to the child's views, which I mentioned earlier. The right to an effective remedy tailor-made for children. This would be a fairly innovative and new provision, not just for us but internationally. There are currently international debates about a complaints mechanism for the Convention on the Rights of the Child itself. These debates are happening internationally about what a complaints mechanism would look like to really be effective for children. The kinds of things that are being thought of include a duty on bodies carrying out a public function to inform children of their rights and remedies that are available to them; flexible time limits taking into account that it might not be until they are out of a situation that they feel strong and confident enough, or even are aware of their rights, to seek a remedy for past violations, children who come out of prison or long-term residential care, for example; the ability of interested organisations and class actions, which I think colleagues here would be interested in, on behalf of children, availability of Legal Aid, access to independent advocates, and decisions and judgments written in accessible language. You are probably short of time so let me give a couple more substantive examples of what might be in a children's section: a requirement on public authorities making decisions about the best interests of individual children to ensure any decisions take full account of the child's ascertainable wishes and feelings; a duty on the state to provide information on the Bill of Rights and children's rights in the National Curriculum; a duty on the state to provide information to parents at key moments, parents of newborns, entry into the formal education system, maybe at particular moments, a child who has been considered for custody, a child entering long-term residential care and so on. Finally—the list is longer but I am saying "finally" because I do not want to take too much time—the right to family life and to remain in contact with parents and siblings. There is not a specific provision in the Convention on the Rights of the Child in relation to the value and importance of sibling relationships and contact but that is part of children's rights thinking today. You will be aware that the Convention was adopted in 1989, drafted from 1979-89, so expectations and norms around children's rights have changed significantly.

  Baroness Stern: Thank you.

  Q51  Lord Morris of Handsworth: From what has been said so far and in the submissions, collective rights for both Unite and the TUC are a must-have in any Bill of Rights. Can I ask particularly the TUC, why do you think it is necessary to include collective rights, such as the right to organise, strike and to free collective bargaining, in a British Bill of Rights? Can you give some practical examples of where it would make a real difference?

  Ms Reed: Thank you, Lord Morris, for the invitation to respond to that question. I would like to say at the outset that we believe there is much independent research within the UK and internationally which shows the beneficial role which trade unions play within the civic, democratic and social arenas. Trade unions play a very positive role in promoting equality, ensuring dignity within the workplace and encouraging individuals to participate in our democratic processes. However, there is a concern within the UK that due to the failure of our law to recognise the fundamental human rights of trade unions and of our members, the ability of trade unions to fully participate is being constrained. We recognise that the European Convention which is implemented into UK law through the Human Rights Act does protect the rights to freedom of association, however Article 11 is very limited and effectively only gives rights to individuals to join trade unions or, indeed, to choose not to join trade unions. It does not include the fuller rights for individuals to be represented by their trade unions collectively in workplaces, to bargain collectively or, indeed, to organise collective action. The conclusions of international agencies, such as the ILO Committee of Experts and, indeed, the supervisory bodies of the European Social Charter, have repeatedly found over the last ten years that UK law breaches the rights of trade unions and breaches the rights of individual members of trade unions. What practical difference would incorporating ILO Conventions, such as ILO Conventions 97 and 98, or, indeed, Article 5 and Article 6 of the European Social Charter make within the UK. First of all, it would ensure that all individuals would have the right to be represented by their trade union collectively in a workplace. Just this year the ILO Committee of Experts raised concerns about the threshold for small firms, which excludes individuals working in small firms employing fewer than 20 individuals, to access statutory recognition rights within the UK. Secondly, in guaranteeing these rights it would also ensure that individuals who participate in lawful industrial action are adequately protected from victimisation and dismissal. Thirdly, as was indeed highlighted in the recent ASLEF case before the European Court of Human Rights, by enshrining these collective rights within UK law it would ensure that trade unions' rights to autonomy, to set their own rulebooks, to determine how they operate, was reinstated. Unlike most other voluntary sector organisations within the UK, the unions are severely restricted in how we govern ourselves, how we determine who can be in our membership and who should not, and how we operate our democratic processes. We would like to see basic human rights confirming the rights of trade unions' own autonomy reinstated within UK law.

  Q52  Lord Morris of Handsworth: You have made reference to Article 11 of the European Convention on Human Rights dealing with freedom of association. Can you say whether you think the protection for collective rights is adequate or not? You have touched on it and I am not sure what the message is.

  Ms Reed: The TUC very much welcomes the slightly more expansive interpretation undertaken by the European Court of Human Rights in recent years on Article 11 but, as I have already said, there are concerns that the rights of freedom of association included within Article 11 are very limited. Basically it only gives rights to individuals to join trade unions, to be members of trade unions or, indeed, as we now know post the closed shop, to opt out of being in a trade union. Article 11 does not cover the fuller employment rights recognised by the ILO and the European Social Charter, rights to bargain collectively and, indeed, rights for unions to organise. We would very much welcome advances in UK law to guarantee these fundamental human rights for trade unions and for individual members.

  Q53  Lord Morris of Handsworth: Thank you. My last question is primarily one for Unite based on what we understand Unite's position to be. Your comment says that: "A Bill of Rights that favours property and trade rights over collective or individual rights is worse for those who live in Britain than no Bill of Rights". Why do you think it would be better not to have a Bill of Rights than to have a Bill of Rights which excludes collective rights?

  Mr Jeary: I think the answer to that, Lord Morris, is very simple. If you introduce a Bill of Rights in the UK and Britain you are establishing a set of rights which are fundamental to the citizens and human beings who live within the borders of this country. If by excluding, or not including, collective rights you are, in fact, diminishing the value of those collective rights still further, because people will see that as being not something which this country believes is a basic right of the people living in this country, that would seriously undermine our ability to take forward some of the issues that Hannah has referred to when we talk about freedom of association and the need for that. Freedom of association in itself for trade unions is worthless if it does not come with the collective right to recognition, the collective right to bargain on behalf of its members and the collective right to take action where necessary to defend the rights of its members. It is those collective rights which we see as being essential to redress the balance of power for the individual. Collective rights, and we make reference to this in our written submission, was looked at very carefully by the Supreme Court of Canada where they said: "Recognising that workers have the right to bargain collectively as part of their freedom to associate reaffirms the values of dignity, personal autonomy, equality and democracy that are inherent in the Canadian Charter for Rights". There is a clear linkage between expressing very clear collective rights with the individual as well.

  Q54  Lord Morris of Handsworth: I recognise the interest that you promote, and that is quite legitimate, but a Bill of Rights would benefit the millions of citizens of the United Kingdom and some of those citizens would not have the collective rights because they are not subjected to, if you like, collective bargaining. Are you saying that it would be better for the rights that a Bill of Rights would confer on millions of people not to be conferred if collective rights is absent from the provision?

  Mr Jeary: First, let us look at the right to collectively bargain. Millions of workers are excluded from that right at present because of UK legislation because they work for smaller firms and the redistribution of jobs that we have seen over recent years has increased the number of smaller employers quite significantly. Already people there are being excluded from their rights. Surely the point of having a Bill of Rights is to provide the sort of human rights that we would expect to see in any civilised nation state. That must include, in our view, the collective rights, and to exclude the collective rights from a Bill of Rights, as I have said, would in effect diminish collective rights to be of no real importance and, whether they be members of trade unions or not and, therefore, choose to participate in the collective right process, millions of individuals benefit from the collective rights process, first because they happen to work in places where collective rights exist and which are pursued and they benefit from them whether they are members or not, but, second, generally it is recognised by the research and actions of trade unions that trade unions do indeed bring, not only to the workplace but the community at large, a great deal in terms of the benefit of rights of individuals, not just to the workplace but through the social campaigns that collectively we are able to organise if we have those rights. I think the exclusion of those rights would be to the detriment of the nation as a whole and that is why we say quite clearly that if a Bill of Rights is to be introduced which does not include collective rights then we would rather not have a Bill of Rights at all.

  Q55  Dr Harris: While the trade unions have the floor, I would like to ask whether you have any views on the language the Government uses, presumably with policy intent, of having a Bill of Rights that is not just a Bill of Rights but a Bill of Rights and Responsibilities, implying some onus on the individual or at least the citizen. Do you have any views on that?

  Mr Jeary: I think we clearly accept that if you have rights then you have responsibilities as well. Whether a Bill of Rights is the right place to enunciate those responsibilities we have some concerns because that could lead to undermining the individual rights by making them conditional upon exercising certain responsibilities.

  Q56  Dr Harris: Why do you say where you have rights you have responsibilities? A one-year old child probably has rights, I think you would accept that, but what responsibilities would you impose on a child?

  Mr Jeary: Personally, I would not.

  Q57  Dr Harris: You just said that—

  Mr Jeary: I am talking in general terms. Where there are rights in general terms then they very often are accompanied by some responsibility. If I take the right of freedom of speech we would see there is a responsibility to use that freedom carefully and without inflaming any hatred of any sort whatsoever. That is a responsibility.

  Q58  Dr Harris: I would like to explore that because it sounds great, but let us say there was a Nazi somewhere and I wanted to incite hatred against Nazis because I feel quite strongly about that and I use inflammatory language to do that, should I not be entitled to do that or should my right to free speech be constrained by your view of what should be polite in that circumstance?

  Mr Jeary: What I am really saying is that the responsibilities that individual humans have within a nation state are more than adequately covered by other legislation than to be included within a Bill of Rights. Quite clearly when we talk about the issues about political speeches and the right of people to express views of a political nature, for example, that is a fundamental right, but not where it incites hatred of one part of the community or another.

  Q59  Dr Harris: Even when it is lawful to do that, because we have laws, do we not?

  Mr Jeary: We do, and that is what we are saying in terms of the responsibility issues, that there are adequate laws or adequate means to establish criminal and civil law to ensure that individuals exercise their responsibilities in a manner which is acceptable.



 
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