Introduction: response to last
year's report
10. In last year's annual report we drew attention
to two general problems with the protection and promotion of human
rights in the UK. Firstly, we noted that "human rights"
and the Human Rights Act were often blamed - wrongly - for unpopular
judicial or administrative decisions. We said that it was "essential
that Ministers refrain in future from misleading the public by
continuing the practice of blaming the Human Rights Act for judicial
or other decisions with which they disagree or which embarrass
them."[5]
11. Secondly, we commented on the potential of the
Human Rights Act to "act as a lever to improve the way in
which services are delivered to the public, underpinning good
practice with an enforceable legal obligation."[6]
We concluded that the Government had "done nowhere near enough
over the past decade to use the Human Rights Act as a tool to
improve the delivery of public services" and that this failure
had "contributed to the poor public image of the Act and
'human rights' in general."[7]
12. In response, Michael Wills MP, the Human Rights
Minister, said he had seen no evidence of ministers misleading
the public about the effect of the Human Rights Act. He also stated
that the establishment of the Equality and Human Rights Commission
"contradicts your claim of Government failure to promote
human rights."[8]
13. We note that during 2008 Ministers generally
refrained from making critical or misleading remarks to the press
or Parliament about human rights or the Human Rights Act. Nevertheless,
there have still been occasions where the Human Rights Act has
come under fire and Ministers have been slow to respond. The recent
speech by Paul Dacre, editor-in-chief of the Daily Mail,
to the Society of Editors on the laws on libel and privacy included
the following passage:
"If Gordon Brown wanted to force a privacy law,
he would have to set out a bill, arguing his case in both Houses
of Parliament, withstand public scrutiny and win a series of votes.
Now, thanks to the wretched Human Rights Act, one judge with a
subjective and highly relativist moral sense can do the same with
a stroke of his pen."
14. Mr Dacre was wrong on a number of counts. The
Human Rights Act - which was, of course, passed by Parliament
- incorporated Articles 8 (right to a private life) and 10 (right
to freedom of expression) of the European Convention on Human
Rights into UK law. Parliament required the judiciary to balance
these sometimes conflicting rights in making decisions in libel
and privacy cases. Far from creating a privacy law to suit his
own "moral sense", Lord Justice Eady was implementing
legislation passed by Parliament in deciding cases such as the
recent action by Max Mosley against the News of the World.
Indeed English courts have long protected confidential information,
good reputation and aspects of personal privacy at common law
and in equity, quite apart from Article 8 of the European Convention
and the Human Rights Act.
15. It would seem that no current Minister publicly
defended the Human Rights Act or the judiciary following Mr Dacre's
speech. When the Human Rights Act or the concept of 'human
rights' come under fire from senior public figures - such as the
editor-in-chief of one of the UK's most popular newspapers - a
senior Minister should respond, quickly and powerfully, otherwise
the argument for human rights may be lost by default.
16. We do not accept the Minister's response to
our charge that the Government has not done enough to use the
Human Rights Act as a tool to improve public services. We of course
welcome the establishment of the Equality and Human Rights Commission
and recognise that this is evidence of the Government's commitment
to promoting human rights; but we have called for something more
fundamental.[9]
We want to see all public authorities focus on the promotion of
the human rights of service users, rather than simply comply with
the minimum requirements of the Human Rights Act.
17. Some public authorities have already sought to
focus on the promotion of the human rights of service users -
for example, the NHS organisations involved in a pilot programme
sponsored by the Department of Health and the British Institute
for Human Rights.[10]
These are very much the exception, however, and our overwhelming
impression is that most public bodies regard 'human rights' as
a matter solely of legal compliance. During the passage of the
Health and Social Care Bill, which established the Care Quality
Commission, we sought to add a clause that "the protection
and promotion of human rights shall be central to the performance
of the functions of the Commission".[11]
The Minister resisted this clause on the grounds that "the
commission will of course be subject to the Human Rights Act and
will have to carry out its functions in ways that are compatible
with it."[12] This
episode reinforces our view that the Government is reluctant to
require public authorities to promote the human rights of service
users, perhaps because it does not understand what this would
add to the existing law or because of fears about legal or financial
consequences. We welcome the opportunity to engage the Government
in further debate on this issue, beginning with scrutiny of the
report on the pilot of the human rights based approach to management
in the NHS.
Human rights in 2007-08
18. We publish as an annex to this report (annex
2) a table showing positive human rights developments in 2007-08
and areas of concern.
19. We have welcomed provisions in a number of Government
bills during 2007-08 as measures which enhance human rights, including:
- the abolition of the offences
of blasphemy and blasphemous libel (included in the Bill during
its passage through Parliament); the new offence of incitement
to hatred on the grounds of sexual orientation; and the clarification
of the law on self defence and the use of force in the home;
- the general duty on the Secretary of State to
promote the well-being of children in the Children and Young Persons
Bill;
- aspects of the Human Fertilisation and Embryology
and Criminal Evidence (Witness Anonymity) Bills; and
- provision in the Employment Bill dealing with
expulsion or exclusion from trade union membership, in response
to the judgment of the European Court in the Aslef case.[13]
20. Although we were unable to report on the bill
during its passage through Parliament, we also welcome the Forced
Marriages (Civil Protection) Act which was originally introduced
in the House of Lords by Lord Lester of Herne Hill, one of our
Members.
21. Another very welcome development was the Government's
decision to withdraw its reservations to the UN Convention on
the Rights of the Child, which related to immigration and nationality
matters and to the detention of children in adult detention facilities.
We had called for the reservations to be withdrawn on a number
of occasions, arguing that they were unnecessary and were not
compatible with the requirement in the Convention for the welfare
of the child to be paramount.[14]
The Home Secretary told us in a letter dated 10 November that
"no additional changes to legislation or significant amendments
to guidance and practice are currently envisaged but all relevant
UKBA [UK Border Agency] staff will be advised through our internal
communications network when the formal process of withdrawing
the reservation is completed".[15]
We intend to monitor the implementation of policy in this area
to ensure that the UK's commitments under the UN Convention are
fully met.
22. We have continued to scrutinise Government policy
on human trafficking, following the major report we published
in October 2006. The Government pledged on 14 January 2008 to
ratify the Council of Europe Convention on Human Trafficking and
we have written a number of letters to Home Office Ministers about
the steps which need to be taken ahead of ratification. The Government's
intention was to ratify before the end of the year and this commitment
was reiterated in letters we received from Alan Campbell MP, the
Parliamentary Under-Secretary of State at the Home Office, in
October and December.[16]
23. We also note that the Government has made a
commitment to ratify the Optional Protocol to the UN Convention
on the Rights of Child on the sale of children, child prostitution
and child pornography. We strongly support this decision and will
seek to scrutinise the measures necessary to ensure speedy ratification.
24. Another welcome step was the Government's announcement
that it would ratify the UN Disability Rights Convention by the
end of 2008.[17] We commented
on the Convention in our Report on the human rights of adults
with learning disabilities, describing it as presenting "a
valuable opportunity to confirm that disabled people, including
adults with learning disabilities, are entitled to full respect
for their human rights".[18]
The Minister for Disabled People wrote to us in September to indicate
that the Government was considering a number of reservations to
the Convention and we heard oral evidence from the Minister on
this issue in November. We will publish a Report on the Convention
early in the new year, but register our disappointment now that
the Government has not been able to ratify before the end of the
year. We also recommended that the Government publish its explanation
for any proposed reservations and consult disabled people and
their organisations, and engage with Parliament, on proposed reservations
and the timetable for ratification.[19]
25. Our work during the session has focused on a
number of significant human rights concerns, in particular:
- provisions in the Counter-Terrorism
Bill to extend the maximum period of pre-charge detention for
terrorism suspects to 42 days and to reform the law on coroners'
inquests where issues of national security are involved, both
of which were dropped from the Bill;[20]
- the use of restraint in secure training centres,
particularly following the introduction of the Secure Training
Centre (Amendment) Rules, which were quashed by the Court of Appeal
following a judicial review;[21]
- failures in data protection in Government and
concerns about the adequacy of safeguards for sharing data between
Government departments and other state bodies;[22]
and
- the effect of court decisions which mean that
the protections of the Human Rights Act are not enjoyed by people
receiving public services from private providers.[23]
26. A number of reports from UN bodies detailed areas
where the UK's human rights record raises concerns: these are
detailed in Annex 2. The report of the Committee on the UN Convention
on the Rights of the Child was particularly challenging and we
intend to hear oral evidence on children's rights in the new year.
27. We have also continued to call on the Government
to ratify Optional Protocols to international treaties which provide
for a right of individual petition to monitoring bodies. The Government
signed the Optional Protocol to the UN Convention on the Elimination
of Discrimination Against Women in 2005 on a trial basis and we
were told in August 2007 that a report on the outcome of the trial
would be available "when Parliament returns" in autumn
2007. Mr Wills told us in November 2007 that the report was "imminent".[24]
It was finally published on 4 December 2008 and concluded that
the Government lacked "sufficient empirical evidence to decide
either way on the value of other individual complaint mechanisms".[25]
In our view, the Government has nothing to fear from enabling
UK citizens to complain to UN monitoring bodies and this would
ensure that the UK complied with international best practice.
We have written to the Prime Minister urging him to commit to
reviewing whether the UK should sign other Optional Protocols
giving a right to individual petition and we await his reply with
interest.
28. A major strand of our work during the session
concerned the Government's proposal to consult on a Bill of Rights
for the UK. Our Report was published in August.[26]
We welcome this debate and now await the Government's much delayed
Green Paper and its response to our Report.
29. Our work priorities for 2008-09 will be driven
by the Government's legislative programme;[27]
the follow-up of previous work - for example on a Bill of Rights,
human trafficking, and the treatment of asylum seekers; and the
most significant issues which have been identified in the concluding
observations of UN monitoring bodies. We intend to decide on the
subject for our next thematic inquiry in January.
5 2007 annual report, paragraph 4. Back
6
Ibid, paragraph 6. Back
7
Ibid, paragraph 8. Back
8
2007 annual report: Government reply, p6. Back
9
For example, see Seventh Report of Session 2007-08, A life
like any other? Human Rights of Adults with Learning Disabilities,
HL Paper 40-I, HC 73-I, (hereafter ALD Report) paragraphs
45-61. Back
10
Human Rights in Healthcare: a framework for local action,
Department of Health, October 2008. Back
11
Eighth Report of Session 2007-08, Legislative Scrutiny: Health
and Social Care Bill, HC 303, HL Paper 46, (hereafter HSC
Bill first report) paragraph 1.28. Back
12
HC Deb, 18 Feb 08, c59. Back
13
See paragraph 51. Back
14
2007 Annual report, Annex , paragraphs 22-24. Back
15
Letter to the Chair from the Home Secretary, dated 11 November
2008, Ev 25 Back
16
Letter to the Chair from Alan Campbell MP, Parliamentary Under-Secretary
of State at the Home Office, dated 7 October 2008, p 55. Back
17
ALD report, paragraph 68. Back
18
Ibid, paragraph 66. Back
19
First Report, Session 2008-09, UN Convention on the Rights
of Persons with Disabilities, HC Paper 145, HL Paper 15. Back
20
Second Report, Session 2007-08, Counter-Terrorism Policy and
Human Rights: 42 days, HC 156, HL Paper 23 (hereafter 42
Days report); Ninth Report, Session 2007-08, Counter-Terrorism
Policy and Human Rights (Eighth Report): Counter-Terrorism Bill,
HC 199, HL Paper 50; Twentieth Report, Session 2007-08, Counter-Terrorism
Policy and Human Rights (Tenth Report): Counter-Terrorism Bill,
HC 554, HL Paper 108: Twenty-first Report, Session 2007-08, Counter-Terrorism
Policy and Human Rights (Eleventh Report) 42 days and Public Emergencies,
HC 635, HL Paper 116; and Thirtieth Report, 2007-08, Counter-Terrorism
Policy and Human Rights (Thirteenth Report): Counter-Terrorism
Bill, HC 1077, HL Paper 172. Back
21
Eleventh Report, Session 2007-08, The Use of Restraint in Secure
Training Centres, HC 378, HL Paper 65 (hereafter STC Report). Back
22
Fourteenth Report, Session 2007-08, Data Protection and Human
Rights, HC 132, HL Paper 72 (hereafter Data protection
report). Back
23
For example, HSC Bill first report, paragraphs 1.6-1.24. Back
24
Data protection report, Qq78-80. Back
25
HC Deb, 4 Dec 08, c11WS. Back
26
Twenty-ninth Report, A Bill of Rights for the UK?, HC150-I,
HL Paper 165-I. Back
27
See paragraph 56. Back