Examination of Witnesses (Questions 60-79)|
14 JANUARY 2008
Q60 Dr Harris: Are you not just saying,
and I do not mean to paraphrase you wrongly, that the responsibility
is the responsibility to stay within the law, not a wider responsibility
and, therefore, it is essentially otiose because it is self-evident
that you have a responsibility to stay within the law or face
the consequences, or would you say it is more than staying within
Mr Jeary: We are saying exactly
that, that it is the responsibility of individuals to stay within
the law and the exercise of that responsibility is covered by
criminal and civil law.
Q61 Dr Harris: Do you have anything
Ms Reed: Our understanding of
a Bill of Rights is a statement of human rights and we would have
an understanding that human rights apply to all human beings and,
therefore, would have some concern about entitlement to human
rights being contingent upon compliance with certain responsibilities.
However, it is important to note that the debate that has taken
place so far around the Bill of Rights and responsibilities is
not necessarily very clearly defined. As a membership organisation
with the TUC we are continuing to develop our policy on a Bill
of Rights and as the Government publishes any future consultation
documents and maybe spells out in greater detail what is meant
by responsibilities in this context then we will, of course, engage
in that wider debate.
Q62 Dr Harris: Carolyne, your written
evidence gives quite a lengthy view about your concerns about
this. Without repeating what is in there, because we already have
that, do you want to add to your concerns where you say that linking
rights and responsibilities is especially dangerous for children?
Ms Willow: Yes. It is especially
dangerous to children but it is not a new debate for us in the
children's rights movement because almost as soon as the notion
of children being rights holders established international pressure
and force then politicians and others started to discuss and put
on the table the notion of children also having responsibilities.
Just to reiterate: a Bill of Rights tends to be a statement of
accepted human rights and human rights are not contingent on behaviour.
We can see through the playing out of antisocial behaviour legislation,
for example, that even if a parent says, "If you do this,
you lose these rights", that is not intentionally defined
to hit hard on children but in reality because of their stage
of development and particular vulnerability it can disproportionately
impact them both in the numbers of children affected and the injurious
harm on children. This is why children have their own Human Rights
Treaty, the international community have recognised the preciousness
of that period of life both in terms that it is very easy to harm
development but equally we have the best of chances to really
help the positive development and growth of human beings.
Q63 Dr Harris: The Government in
some of its speeches has talked about, at least for citizens,
that with rights comes duties and it has got a bit more flexibility
when it comes to citizens because one always has extra rights
as citizens, such as to vote, for example. How do you feel, particularly
for children? Do you think there is a distinction between children
being thought of as citizens if, for example, there was a citizenship
ceremony for 18-year olds to participate in and do you think that
would have an impact on the status of sub-18 year olds who have
not gone through that ceremony?
Ms Willow: It would have an impact
on the one-year old that you referred to. The idea that human
beings become full members of society at the age of 18 and that
ought to be marked with a ceremony immediately raises questions
about all the other human beings who are below the age of 18.
We have consistently urged caution about the idea of citizenship
ceremonies. Whatever individuals or families want to do in their
own private lives to mark the passing of particular ages and the
acquisition of additional legal rights and responsibilities, we
believe that should be left to individuals and families to determine.
Q64 Dr Harris: Would you object to
a coming of age ceremony which was state-sponsored and made compulsory
which did not imply citizenship implications but just celebrated
or recognised the additional rights that people attain at the
age of 18?
Ms Willow: We cannot see the arguments
for it in terms of the benefits for the individuals and for children
per se. Our focus is on having political commitment and
will and legal enforceability for the rights that are there in
the international Human Rights Treaty for Children. It is not
evident to us from the Green Paper what the gains or the benefits
for individual children or for children collectively are meant
Q65 Mr Sharma: Can I go to the Prime
Minister's famous speech on 6 June to the GMB when he said that
it is time to train "British workers for British jobs".
What is your view of the human rights implications of the Prime
Minister's wish to train "British Workers for British jobs"?
Mr Jeary: First, it is not for
me to interpret what the Prime Minister meant by that phrase.
From a Unite perspective, what we are concerned about is a Bill
of Rights is about human rights regardless of someone's citizenship
or nationality. If somebody is living in the jurisdiction of a
Bill of Rights then they should be able to access those rights
and be treated with the dignity that those rights give to people.
I take the point you are making, but I suspect perhaps the Prime
Minister might choose his words differently if he was given a
second chance because it is open to misinterpretation and I am
sure he did not mean it in the way that some mischievously interpreted
it. Nevertheless, from our point of view we are quite clear that
a Bill of Rights is about human rights, it is about everybody
living within the area that the Bill of Rights covers and that
has got nothing to do with being necessarily British, it is to
do with living in the United Kingdom.
Ms Reed: The TUC would certainly
share those views. Indeed, we would recognise that many of the
individuals in the UK who are perhaps in greatest need of protection
under any potential Bill of Rights are asylum seekers and refugees
and, indeed, some migrant workers and, therefore, as Roger has
already said, our understanding of a Bill of Rights is a Bill
of Rights setting out human rights and qualifications for human
rights should be the fact that you are a human being.
Q66 Chairman: Earlier on you mentioned
the socio-economic rights, how detailed do you think the rights
Ms Willow: The Convention on the
Rights of the Child, as I am sure you are aware, has very broad
requirements in relation to social and economic rights. Our proposal
is to incorporate them as they stand, which other countries have
done, notably Norway most recently, and then it would be for the
courts to determine and interpret the applicability of those rights.
We believe that we should not skip from the first generation rights,
civil and political rights, straight on to third generation rights,
to issues around the environment and so on, without giving proper
and serious consideration to social and economic rights. The indivisibility
of civil and political and social and economic rights is well-established.
The Committee itself in its 2004 report on the international covenant
emphasised that nearly a third of Council of Europe Member States
have accepted the complaints mechanism for the European Social
Charter which indicates growing acceptability, at least among
Council of Europe States, and in Central and Eastern European
States their revised constitutions have often incorporated social
and economic rights. At this point in time we think the debate
should be open on social and economic rights for all, although
we do think there is a particular strength in the argument around
children given the cross-party support to end child poverty. If
it is ended by 2020 as the three main political parties want,
then what happens in 2021, 2022 and so on? Particularly with this
Prime Minister who has made the eradication of child poverty not
just a national priority but an international priority it absolutely
makes sense at this point in time that that is given serious consideration.
I was going to answer some of the arguments against but maybe
I should wait for you to give me the arguments against.
Q67 Chairman: Roger, what is your
view on social and economic rights? Do you think we should have
them? How detailed do you think they should be? Carolyne earlier
on indicated that she felt there should be a separate section
for children in a Bill of Rights, do you think there should be
a separate section in a Bill of Rights for trade unions?
Mr Jeary: I will come to that
final point in a moment. On the question of economic and social
rights, the whole issue of a Bill of Rights is still very much
a matter of debate within Unite and within the trade union movement
as a whole as to what should be included and what should not.
Were it to be decided through debate that there should be the
inclusion of such rights as are included in the South African
constitution, the right to adequate housing, the right to healthcare,
the right to basic education, these are all very much in line
with Unite's policies and ones which we would be quite happy to
support. A reservation that we might have at this moment in time
is the interpretation in law of these rights and how they would
be interpreted in law and that is something which through the
detailed consultation mechanism which this type of legislation
requires would have to be looked at very, very closely before
we decided exactly how we might include what all of us in this
room, hopefully, would agree are basic human rights. On the issue
of whether we should have a separate entity for trade unions,
again it is something we have not considered specifically as to
whether that should be the case. If the arguments that we have
put forward are adhered to in terms of collective rights, some
of that clearly reflects very heavily on trade unions rather than
other bodies, but the collective rights that we demand in many
respects are similar to collective rights that other organisations
would want to have in representing the people who belong to their
organisations. I am not sure that it is absolutely necessary to
have a separate section on trade union rights within this. Again,
as I say, this is us evolving our own ideas and policies as we
go along and the important thing is to ensure that there is widespread
consultation on these aspects of any proposed Bill of Rights.
Q68 Chairman: One of the key issues
is justiciability, which is the one you have just touched on,
and I will ask Hannah about this because, on the one hand, the
Prime Minister when I put it to him was very concerned about justiciability,
and I raised that with him at the Liaison Committee at the end
of last year, and, on the other hand, in South Africa they seem
to have found a reasonable balance as to the right way to do it
if you look at what the Constitutional Court in South Africa has
been able to achieve. What are the TUC's views on justiciability?
Ms Reed: May I start off by saying,
if you will give me the time, that the TUC is still having ongoing
consultations internally about the content of a Bill of Rights
and, therefore, on the scope of which economic or social rights
should be included within any future Bill of Rights. As we have
already stated, we do believe that there are certain collective
rights which may well be defined as social and economic rights
which, if there is a Bill of Rights, should be included in a Bill
of Rights. Regarding justiciability, first of all as regards collective
rights relating to trade unions, we do not believe there is a
problem of justiciability in terms of rights to bargain collectively
or rights of trade unions to organise. The jurisprudence of bodies
such as the ILO and the Council of Europe already demonstrate
that those are substantially procedural rights which can be accessed
and determined through the courts. We do recognise if you go beyond
those rights into other areas of social and economic rights there
may be other issues of justiciability which come to the fore but,
as Roger has already highlighted and as you have raised, other
accession states within Europe and, indeed, South Africa have
a very comprehensive Bill of Rights which do include social and
economic rights and different legal systems have found ways of
adjudicating on such matters. The TUC at this stage is still consulting
our affiliates as to which rights, if any other social and economic
rights, should be included within a Bill of Rights debate. We
will happily return to this issue, including justiciability, at
a future point.
Q69 Chairman: Carolyne, you raised
the issue of justiciability, is there anything you would like
to add briefly?
Ms Willow: The principle that
the courts should be able to interfere in policy making and in
relation to children especially has already been established in
terms of the Human Rights Act. If there were to be a very broad
public debate and consultation on what ought to be in a Bill of
Rights we are absolutely certain that economic and social rights
would be high up on people's agendas and if we were to ask for
the characteristics and features of what is important to British
values and living here in Britain, everybody having a minimum
income guaranteed, an adequate standard of living, and for that
to be enforceable is the other
Q70 Earl of Onslow: What happens
if you do not have a minimum income and the money is not there,
how do you enforce it?
Ms Willow: Well, we are the fourth
Q71 Earl of Onslow: That was not
my question. How do you enforce it? Surely that is a policy objective
rather than a Bill of Rights objective.
Ms Willow: If it was a challenge
with a victim rather than a challenge on a piece of legislation
that contravened the Bill of Rights then there would be redress
and remedy for that individual. If it was a challenge on a piece
of legislation that allegedly contravened what was in the Bill
of Rights then presumably there would be a process like we currently
have with the Human Rights Act, the Declaration of Incompatibility
and so on.
Q72 Earl of Onslow: Surely standards
of living and how rich a country is, is not something which is
amenable to a Bill of Rights.
Ms Willow: It is relevant because
Q73 Earl of Onslow: If you do not
have the money or the wealth to do something, if an Act says you
have to have it and it is not there, there is nothing the Act
can do about it.
Ms Willow: I use it as a comparison
because debates around economic and social rights in this country
are often predicated with, "Well, what about the resource
implications?" and it is absolutely relevant that we are
an extremely rich country.
Q74 Earl of Onslow: I understand
all of that but you cannot legislate for water to go uphill. You
cannot do that, it does not work. That is all I am saying.
Ms Willow: These minimum standards
are already established in Human Rights treaties and instruments
that we have ratified. The law of treaties requires that governments
that ratify human rights instruments implement them, so there
is already a legal and moral obligation on states like the UK
to be implementing economic and social rights.
Q75 Chairman: Would you see them
qualified in the same way as the South African constitution, for
example, in relation to the availability of resources and future
growth of the economy and so on?
Ms Willow: Like my colleagues
here, we are evolving our policy. At this present time our position
is that we want full incorporation and there are no get-out provisions
within the Convention on the Rights of the Child in relation to
resources, in relation to an adequate standard of living, access
to health and healthcare services, for example. This is the start
of the debate. We have looked at the South African constitution
and have seen that is one obvious option that the UK could take.
Q76 Lord Dubs: Could we turn briefly
to the process of how we get there. In other words, how would
you like to see the public and, indeed, if I can call trade unions
civil society groups, civil society groups involved in formulating
a British Bill of Rights? How do we ensure that the ownership
is there for your members?
Mr Jeary: To start with is the
need to have the widest possible consultation and the mechanism
for that has to be very seriously considered by government. This
is such an important area of constitutional law that simply going
through the motions of having a website with the opportunity for
people to express a view is not good enough, quite frankly. It
may be part of the mechanism to engage the wider population but
what we would want to see is a properly structured debate which
enables representative groups as well as individuals to ensure
that a full debate on all the issues, some of which we have touched
on today and many more which we have not, are given a full and
frank airing and that is open not only to trade unions but all
other organisations, collective organisations, alongside the individual
right to make representations. Maybe that could be through some
form of commission which would provide that opportunity to have
detailed evidence presented to it.
Q77 Lord Dubs: As far as children
are concerned, is there any way in which you would envisage children
and young people being involved in such a process?
Ms Willow: Absolutely. It is absolutely
essential. We believe that the Equality and Human Rights Commission
could take a strong lead here. We think the debate needs to be
above party politics to engender trust, openness and the active
engagement we are led to believe is wanted. The Children's Commissioners
in England, Wales and Scotland could be part of the process because
of their good links with children and expertise in producing materials
and going out and engaging with children. As a starting point
we would want information to the public to set out the bottom
lines as they currently stand. We do not think it would be beneficial
for the discussion we had right at the beginning to present this
as a blank sheet of paper, we want people, and within that children,
to be informed of the human rights obligations that the UK currently
has accepted and is required to implement as a starting point.
That has to be where we travel from. There has to be human rights
education as part of this process because it has not happened
Q78 Lord Dubs: My last question is
this: I think you would accept that there is a certain amount
of media and political hostility in this country as regards human
rights legislation, the press and some of the papers are not very
sympathetic and so on. Do you think that a full public debate
of the sort we have just been discussing, and to which you have
given your backing, would lead to enhanced protection for human
rights within a Bill of Rights? Would the outcome be positive
or is it liable to exacerbate the opposition?
Mr Jeary: I think a lot depends
on how informed the debate is that takes place. There is always
a danger in the sort of open debate that we are advocating that
it is taken over by vested interests which perhaps are not interested
in the broader concept of a Bill of Rights and would see it as
an opportunity to attack, as others have already, the effect of
the limited Human Rights Act provision that we have in this country
currently. I do not think that is a reason not to have the debate.
I do think there is a need for this debate and we have got to
give the opportunity to responsible people to come forward and
take forward, as Carolyne has just said, where we go from where
we are. The one thing we have made absolutely clear is the one
thing a Bill of Rights should not be doing in any way is undermining
those human rights that exist already in this country.
Q79 Mr Sharma: Carolyne, you would
like to see an entrenched Bill of Rights, not easily capable of
being amended, but you also see a need to "review and evolve
the Bill in recognition of the organic nature of human rights".
How would this work?
Ms Willow: We see that there seems
to be a growing consensus that any amendment to a Bill of Rights
ought to be supported by two-thirds in each House of Parliament.
In our opening position of not only the Convention on the Rights
of the Child but all the international treaties that the UK has
ratified to be incorporated as part of the Bill of Rights we would
see that there could be some provision within that to take into
account where treaties and the option of protocols are added,
for example, and the interpretations of the human rights monitoring