Memorandum submitted by the Equality and
Human Rights Commission
1. The Equality and Human Rights Commission
("the Commission") is an independent statutory body
established under the provisions of the Equality Act 2006 with
powers to enforce equality legislation on age, disability, gender,
race, religion or belief, sexual orientation and transgender status
in Great Britain and a unique mandate to promote the understanding
of the Human Rights Act in England and Wales with a limited jurisdiction
for human rights issues in Scotland.
The Commission liaises with the Equality Commission for Northern
Ireland which has the equivalent equality remit for that region.
2. The Commission heralds a major shift in the
way we tackle inequality and promote human rights in GB. The Commission
works across all the grounds of equalitygender, gender
identity, race, disability, age, sexual orientation, and religionand
much of the important work of the predecessor commissions (the
CRE, EOC and DRC) has been taken on by the Commission and will
continue to be developed in its work. The Commission's mandate
applies to people of all ages.
3. The Commission has a tripartite mandate of
equality, human rights and good relations. The importance of fundamental
rights is reflected in our strategic priorities and our vision.
4. The Commission's duties in relation to
human rights are:
to promote understanding of the importance
of human rights;
to encourage good practice in relation
to human rights; and
to encourage public authorities to comply
with the Human Rights Act
5. In the first six months of its operation,
the Commission launched a human rights inquiry.
The aims of this inquiry are to assess progress made in the 10
years since the enactment of the Human Rights Act towards the
effectiveness and enjoyment of a culture of respect for human
rights in GB and to consider how the current human rights framework
might be developed to realise the Commission's vision of a society
built on fairness and respect, confident in all aspects of its
diversity. The Commission intends to publish the findings and
recommendations of the inquiry in April 2009.
6. Although the UK Government has ratified
the UN Convention on the Rights of the Child it has not incorporated
the Convention into domestic law. Consequently, the Convention
is not directly enforceable in national courts and there can be
no individual cause of action for breach of the Convention. However
the Convention is increasingly being quoted in Human Rights Act
judgments, so has persuasive authority in the courts.
7. The guiding principle and bedrock of the Conventionthat
the best interests of the child shall be a primary considerationis
not implemented in all areas of policy and legislation. The Commission
would like to see that this principle applies in all court proceedings,
including criminal proceedings where a child is the defendant.
We would also like to see this principle applying in immigration
and asylum procedures.
8. Some of the rights contained in the Convention
on the Rights of the Child have been implemented into domestic
law by the incorporation of the European Convention on Human Rights
(ECHR) in the Human Rights Act.
9. The Commission considers that it is possible
to implement many of the rights set out in the Convention which
have not yet been implemented into domestic law through the UK
signing, ratifying and incorporating into domestic law, via the
Human Rights Act 1998, Protocols 4, 7
and Optional Protocol 12
of the ECHR. The UK Government has undertaken since 1999 to sign
and ratify Protocol 7, noting that the only obstacle to doing
so is amending three discriminatory rules of matrimonial property
Those steps would help to bring the UK domestic law in line with
the CRC. The Commission awaits the Government's consultation paper
on a Bill of Rights for Britain and hopes that this process leads
to a strengthening of the Human Rights Act over time, and the
constitutional protection of all of the civil and political rights
contained in all of the international human rights treaties.
10. Discrimination and social stigmatisation
continue to be experienced by certain groups of children: Roma
and Irish Travellers' children; migrant, asylum-seeking and refugee
children; lesbian, bisexual, gay, and transgender children (LBGT);
and children belonging to other minority groups.
11. The Commission recommends:
strengthening awareness-raising and other
preventative activities against discrimination and, if necessary,
taking affirmative action for the benefit of vulnerable groups;
investing considerable additional resources
in order to ensure the right of all children to a truly inclusive
education which ensures the full enjoyment to children from all
disadvantaged, marginalized and school-distant groups and which
teaches human rights, peace and tolerance in schools; and
the UK Government's proposal to introduce
a Single Equality Bill should include the adoption of an integrated
equality duty which has the flexibility to identify and meet the
needs of harder to reach or neglected groups, including children.
Issues of particular interest
Children in detention (including the use of restraint
and deaths in custody)
12. The Commission welcomes the outcome
of the Court of Appeal case of R (on the application of C) v Secretary
of State for Justice, which quashed the statutory instrument allowing
the use of physical restraint to maintain good order and discipline
in secure training centres. The Commission intervened with written
submissions in the hearing, arguing that the Government failed
in its statutory obligations to carry out a race equality impact
assessment before introducing the new statutory instrument.
13. The Commission welcomes the report from the
Independent Review of Restraint in Juvenile Secure Settings, and
in particular welcomes the recommendation that safe restraint
techniques must be used which do not rely on pain compliance.
We agree with the recommendation that force should only be used
to prevent risk of harm, and that only approved restraint techniques
should be used. We also support the recommendation that force
and restraint should only be used in the context of an overall
approach to behaviour management.
14. The UK Government should amend the legislation
on the use of physical restraint to make it explicitly clear that
the use of physical restraint is not permissible for the purposes
of good order and discipline in any setting where children are
15. There should be six monthly reports
to Parliament on the number of restraint incidents broken down
by the specific purposes for which restraint was necessary and
ethnic origin of the detainee.
The practical impact of the withdrawal of the UK's
reservations on immigration and children in custody with adults
to the UN Convention on the Rights of the Child (UNCRC)
16. We welcome the withdrawal of the UK's
reservation to Articles 22 and 37(c) of the UN CRC. We would like
to see the Government going further, and would like to see the
signing, ratification and incorporation into domestic law Protocol
4 to the European Convention on Human Rights through the Human
Rights Act to prevent the frequent transfers of asylum-seeker
children from one area to another.
17. The Commission would also like to see Article
40 of the UN CRC put into full effect. In particular this means
that children receive a fair hearing, taking into account their
age and maturity, and that children who commit offences are dealt
with in a manner appropriate to their well-being and proportionate
both to their circumstances and the offence that they have been
18. The Commission's position in respect
of age discrimination is that discrimination on the grounds of
age should be unlawful if it is based on prejudice or stereotypes,
or is not evidence based, justified and proportionate. Because
discrimination on the grounds of age can sometimes be objectively
justified, direct discrimination should not automatically be unlawful
(in contrast to race, gender, etc, where direct discrimination
can never be justified). The above two principles are the basis
of both current domestic law and the existing EU Directive.
19. The Commission therefore considers that age
discrimination should be unlawful in the delivery of goods and
services, as well as in employment and that age discrimination
directed at children and young people should also be unlawful
unless justified. The Commission will work towards the introduction
of provisions in the Equality Bill to ensure that children and
young people are protected against discrimination, with appropriate
exemptions to meet the particular needs of different age groups.
Disabled children in specialist care
20. We would like to see children in long term
residential placements benefiting from the safeguards afforded
to children with looked after status for example, monitoring and
regular reviews of their care.
21. There should be a duty to have regard
to the child's best interests in the exercise of immigration and
nationality functions. Detention of children as a last resort
should be a statutory principle.
22. The UK Government should collect and publish
either annual or quarterly statistics on the number of children
detained under Immigration Act powers.
23. Unaccompanied Asylum Seeker Children
should have looked- after status and be entitled to remain in
care or foster care until the age of 21 as other looked-after
24. The Commission would like to see the
detention of asylum-seeking and migrant
children is always used as a measure of last resort and for the
shortest appropriate period of time;
the appointment of guardians to unaccompanied
asylum-seekers and migrant children; and
the return of unaccompanied asylum seeker
children happens with adequate safeguards, including an independent
assessment of the conditions upon return, including family environment.
25. The Government has refused to sign and
ratify Protocol 4 to the ECHR; article 2 of Protocol 4 provides
that everyone lawfully within the territory of a state shall,
within that territory, have the right to liberty of movement and
freedom to choose his residence. The Commission urges the ratification
and incorporation of Protocol 4 to prevent the forced transfers
of asylum seeker families and their children from one area to
another within Great Britain.
26. There is also a partial exemption to
the public sector equality duty in relation to race and that is
for immigration and nationality functions. In the exercise of
immigration and nationality functions a public authority does
not have to promote equality of opportunity. This provides weaker
protection for children who are subject to immigration control,
and to asylum-seeking children in particular Child trafficking
victims (including ratification of the Optional Protocol on the
Sale of Children, Child Prostitution and Child Pornography).
27. The Commission welcomes the announcement
that all necessary legislative and other measures have been taken
to initiate the process of ratifying the Optional Protocol on
the sale of children, child prostitution and child pornography.
We are aware of the Government's consideration that it first needs
to introduce a range of new offences
to ensure that it is fully compliant with the Protocol and that
this requires primary legislation. The Commission is of the view
that the decision to ratify the Protocol ought not to rest on
the prior adoption of statutory law, as these legislative changes
can follow after the ratification of the Optional Protocol, and
urge the adoption of this protocol at the earliest opportunity.
Special Educational Needs Statements
28. The UK Government should act promptly
to ensure that lookedafter children with special educational
needs (SEN) have an independent right to appeal decisions on support
for their needs.
School exclusions and attainment levels
29. The frequency and duration of temporary exclusions
should be monitored more closely and there should be a review
of the adequacy of the Pupil Referral Units.
30. The strategies which have been adopted by
the UK Government to tackle the high exclusion rate of black pupils
should be extended to tackle the high rates of exclusion and low
levels of attainment for Gypsy and Traveller children and other
groups who are similarly affected eg lookedafter children,
children with SEN and asylum seekers.
Bullying and harassment
31. The Government must ensure that its guidance
for schools on how to respond to bullying behaviour and to victims
of bullying focuses on all forms of discrimination and this should
be supported by a comprehensive training programme for staff,
and action on bullying should be monitored by inspection bodies.
32. A proactive "whole school approach"
is essential to tackle all forms of bullying. The proposed single
equality duty will be crucial in ensuring that schools take the
necessary steps to tackle problems such as homophobic bullying
and bullying on religious grounds. This would build on the current
equality duties requiring schools to tackle bullying on the grounds
of gender, race and disability.
How best to enshrine in law the Government's goal
of eradicating child poverty by 2020, in view of the right of
every child to an adequate standard of living under Article 27
33. The Commission welcomes the Child Poverty
Bill, as it will put a renewed emphasis on the Government's commitment
to ending child poverty. A cross government approach is essential
to achieving the 2020 target as success will depend on:
training and where necessary re-skilling
preparing people for work; and
providing support both as they prepare
for work and also when they start back in employment.
34. A Child Poverty Act, once on the statute
books, will place the issue of Child Poverty on the agenda for
future governments and commit them to continuing to make progress
towards the target of eradication of child poverty by 2020.
35. We also welcome the government proposals
on Welfare Reform and the determination to offer the many sectors
of workless people the support to get back to work. However work
only becomes an effective route out of poverty if it is sustainable,
sufficiently well paid, accessible for people who need to have
some form of flexibility in their working arrangements (for caring
responsibilities, reasonable adjustments, etc.) and there is available,
affordable childcare. Many groups simply do not have access to
these kind of jobs.
36. The EHRC has an important role to play
in identifying who is at risk of poverty in its many forms, communicating
to the public the multiple layers of disadvantage and their relationship
to poverty, in order to move towards a more equal society.
Age of criminal responsibility
37. There should be an independent review
of the effect of the abolition of the rebuttable presumption that
a child aged 10 to 14 is incapable of committing an offence. The
recent reports that Ministers are considering raising the age
of criminal responsibility in Scotland is a welcome development
and the Commission would like to see similar considerations taking
place in England and Wales, following recommendations from the
38. The "naming and shaming" of children
who are prosecuted for breach of an ASBO is inconsistent with
principles of the child's best interests, welfare and rehabilitation,
and should cease.
39. As part of their equality duties under the
Race Relations Act 1976, the Disability Discrimination Act 1995
and the Sex Discrimination Act 1975, local authorities and the
police should ensure that they monitor the impact of their anti-social
behaviour policy on racial and disabled groups and gender and
collect data on the number of ASBOs served, broken down by ethnicity,
disability, special educational needs and gender. This data should
be included in Criminal Justice statistics placed in the public
40. The Commission welcomes the Government's
ratification of the Optional Protocol on the Involvement of Children
in Armed Conflict. The Commission does not consider that children
and young people under the age of 18 should be recruited into
the armed forces at all, and is keen to see all reservations to
this protocol being dropped, and to establish when the protocol
will be brought into full effect.
215 The Commission has jurisdiction over human rights
issues in Scotland where it relates to a power "reserved"
to the Westminster parliament. In relation to powers "devolved"
to the Scottish parliament, the Scottish Commission for Human
Rights (SCHR) have jurisdiction. Back
Our vision is a society built on fairness and respect, where people
are confident in all aspects of their diversity. Back
Section 9 of the Equality Act. Back
Protocol 4 strengthens article 5 of the ECHR (right to liberty)
and includes the right to liberty of movement and freedom to choose
residence for everyone lawfully within the territory of a state.
Protocol 7 provides procedural safeguards relating to the expulsion
of aliens, ensures a right of appeal in criminal matters, provides
for compensation for wrongful convictions, protects against an
individual being tried or punished twice, and provides for equality
between spouses. Back
Optional Protocol 12 provides a free-standing right to non-discrimination
similar to article 26 of the ICCPR. Back
Review of International Human Rights Instruments (Amended),
27 October 1999. See also Department of Constitutional Affairs,
International Human Rights Instruments: The UK's Position,
Report on the outcome of an Inter-Departmental Review (2004),
summarised in a press release of 22 July 2004: http://www.gnn.gov.uk/content/detail.asp?ReleaseID=124322&NewsAreaID=2&NavigatedFromSearch=True
As stated in the Concluding Observations of the Committee on the
Rights of the Child for the UK, CRC/C/GBR/CO/4. Back
The Government will need to criminalise the trafficking of people
for the sake of exploiting their labour, transfer of organs and
illegal adoptions. Back