The Work of the Committee in 2007-08 - Human Rights Joint Committee

The Work of the Committee in 2007-08 - Human Rights Joint Committee Contents

2 The state of human rights in the UK

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