Memorandum submitted by the Scottish Human
Rights Commission
PRELIMINARY COMMENTS
We are pleased to contribute to the consideration
by the Joint Committee on Human Rights (JCHR) of the Equality
Bill, which will have significant implications for the realisation
of all human rights in Scotland. We echo many of the concerns
raised by JCHR in its request to the Solicitor General for further
information. In order to be concise, following some preliminary
comments, we will make only brief comments on areas where we have
additional suggestions.
Equality and non-discrimination are at the core
of the realisation of all human rights. They are central to UN
and Council of Europe human rights treaties, and form part of
domestic human rights law through the Human Rights Act 1998 and
the Scotland Act 1998. The UK's traditional approach to non-discrimination
and equality as distinct from human rights is inconsistent with
international law, incoherent in practice and poorly serves those
whose rights are most frequently overlooked. Unfortunately the
current Equality Bill continues this approach of two parallel
and occasionally contradictory standards. It is not surprising,
therefore, that the UK has frequently been criticized internationally
for it's approach to non-discrimination. Most recently, in May
this year, the UN Committee on Economic, Social and Cultural Rights
(CESCR) expressed its concern, "that the proposed Equality
Bill does not provide protection from all forms of discrimination
in all areas related to the Covenant rights".[233]
Since its inception, on 10 December 2008 the
Scottish Human Rights Commission has spoken to a wide range of
people in public, private and non-governmental bodies across the
length and breadth of Scotland in a series of 18 consultation
and many other bilateral meetings. We have discovered many examples
of good practice where bodies have adopted a human rights-based
approach through which they seek to realise equality as well as
human rights duties. We are currently evaluating the experience
The State Hospital at Carstairs, which has sought to deliver all
duties through a human rights-based approach, in order to learn
lessons which can be applied elsewhere.
The benefits of a unified human rights-based
approach to the delivery of human rights and equality duties are
increasingly documented.[234]
In our work so far we have been stuck by the high level of good
will towards an integrated approach which would ensure simplification
and coherence whereas at present there is unhelpful duplication.
In relation to mental health, for example, it would link the right
to health with discrimination on the grounds of disability or
health status, and in relation to social care it would link age
based discrimination with the right to freedom from degrading
treatment, to provide a more holistic and workable framework for
public authorities.
The present proposal for the Equality Bill would
create general equality duties for certain, listed public authorities
in relation to certain internationally recognized grounds of discrimination.
Under the Human Rights Act all public authorities, as well as
other bodies to the extent that they carry out public functions,
must prohibit, prevent and eliminate discrimination in the realisation
of human rights for a non-exhaustive and evolving list of grounds
of discrimination.
Duplication and uncertainty should be avoided
either through amendments of the Equality Bill itself or, at least,
in the specific duties and guidance to be developed in the coming
months by the UK and Scottish Governments.
RESPONSES TO
SPECIFIC QUESTIONS
PART 1—SOCIO-ECONOMIC
INEQUALITIES
Question 1.
Discrimination on the grounds of "social
origin, property…or other status" is prohibited in international
human rights law.[235]
CESCR recently clarified that "individuals or groups must
not be arbitrarily treated on account of belonging to a certain
economic or social group or strata within society."[236]
As a state party to the International Covenant on Economic, Social
and Cultural Rights (ICESCR), the UK is therefore required to
immediately take steps to prevent, diminish and eliminate discrimination
on this as well as other grounds.[237]
In addition, its general obligations under the
ICESCR require the UK to take steps to achieve progressively the
full realisation of economic, social and cultural rights for everyone,
without discrimination. Such steps may include a duty on public
authorities to monitor the realisation of these rights (including
through collecting appropriately disaggregated data) and adopting
temporary special measures where appropriate (see later under
"positive action"). Such a duty, properly constructed,
could be an important (although not sufficient) element of ensuring
the progressive realisation of economic, social and cultural rights
in the UK.
However, we do not believe that the socio-economic
duty, as currently proposed, would be an adequate legislative
measure either to prohibit discrimination on grounds of social
or economic status, or to enhance the realisation of economic,
social and cultural rights. The current proposal is vague and
the "inequalities" in question are not spelt out and
can be defined by public authorities themselves, meaning that
implementation will not be uniform.
PART 2—EQUALITY—KEY
CONCEPTS
Other Protected Characteristics
Question 7.
Whereas the Equality Bill includes a limited
number of prohibited grounds of discrimination, international
human rights law, including the European Convention on Human Rights
includes a non-exhaustive and evolving list of prohibited grounds
of discrimination in the realisation of human rights. In addition
to those grounds recognized in the Equality Bill, other prohibited
grounds of discrimination under human rights treaties to which
the UK is a party include (but are not limited to): association
with/belonging to a national minority, birth, descent, language,
marital status, political or other opinion, social origin. Human
rights bodies have interpreted "other status" to include,
inter alia, gender identity, health status, place
of residence, and economic and social situation.[238]
The "protected characteristics" in
the Equality Bill do not encompass all internationally prohibited
grounds of discrimination. This is likely to create confusion
as bodies look to comply with duties under the Human Rights Act
which extend beyond the grounds recognized in the Equality Bill.
PART 11—ADVANCEMENT
OF EQUALITY
Public sector equality duty
The Commission is engaging with the Scottish
Government to ensure proper consideration of human rights in the
development of specific duties of Scottish public authorities.
As with all other legislation public authorities must interpret
the Equality Bill, so far as possible, in line with the duties
under the Human Rights Act 1998. In considering the best way to
enable this to happen, we will be holding a workshop with representatives
of Scottish public authorities during the Scottish Government's
consultation.
Procurement
Question 65.
The UK Government Equalities Office states that
the Equality Bill allows public bodies to use procurement to advance
equality, and allows Ministers to set out how public authorities
should go about doing this.[239]
As noted in our submission to JCHR's consultation
on business and human rights, we believe that better use could
be made of public procurement law to both prevent the UK's public
sector from purchasing in a way which is detrimental to respect
for human rights and to encourage private sector businesses to
satisfy the terms of public contracts in compliance with human
rights norms. It is our view that the duty of public authorities
to protect human rights (including the right to non-discrimination
and equality) is obligatory, and not optional. We consider that
the development and promotion of guidelines which would enable
public authorities to ensure human rights are protected in procurement
processes would be a useful step to ensuring this happens.
We feel that the way this is framed in the current
Bill and explanatory memorandum is unhelpful. We are concerned
that an option to promote equality in procurement could
lead to confusion with the obligation to protect human
rights (including non-discrimination in the realisation of human
rights). In addition, the current draft Equality Bill appears
to limit references to equality in procurement largely to labour
policies of contractors. Under the Human Rights Act conversely,
public authorities should ensure the respect, protection, promotion
and fulfillment of human rights in procurement of public services.
Positive action measures
Under international human rights law temporary
special measures (or positive action measures) are not prohibited,
and in some cases they are required. As the Human Rights Committee
has stated in consideration of the obligations under the International
Covenant on Civil and Political Rights (ICCPR):
"where the general conditions of a certain
part of the population prevent or impair their enjoyment of human
rights, the State should take specific action to correct those
conditions. Such action may involve granting for a time to the
part of the population concerned certain preferential treatment
in specific matters as compared with the rest of the population.
However, as long as such action is needed to correct discrimination
in fact, it is a case of legitimate differentiation under the
Covenant."[240]
In giving effect to the duty under the Equality
Bill consideration should be given to when such measures may be
required, and to the requirement that they be time-bound and cease
when the objective is achieved.
ADDITIONAL COMMENTS
Definition of direct and indirect discrimination
The definition of discrimination included in
the Bill differs from that in international human rights law.
While the Bill considers discrimination to be less favourable
treatment based on a protected ground, under international human
rights law discrimination is "any distinction, exclusion,
restriction or preference based on a prohibited ground which has
the purpose or effect of nullifying or impairing the recognition,
enjoyment or exercise, on an equal footing, of human rights …"[241]
Currently, the explanatory memorandum to the
Bill states that, "it is not discrimination to treat a disabled
person more favourably than a person who is not disabled".
This statement could give the misleading impression that all favourable
treatment of persons with disabilities is permissible. Under international
human rights law any preference which is not reasonably and objectively
justified is discriminatory.
In addition, it is not currently explicit in
the Bill that there is a duty to treat differently people whose
circumstances are significantly different. As the International
Court of Justice has stated,
"The principle of equality before the
law does not mean…absolute equality, namely the equal treatment
of men without regard to individual, concrete circumstances, but
it means…relative equality, namely the principle to treat
equally what are equal and unequally what are unequal".[242]
This is an important principle which has been
reiterated by the European Court of Human Rights:
"The right not to be discriminated against
in the enjoyment of the rights guaranteed under the Convention
is also violated when States without an objective and reasonable
justification fail to treat differently persons whose situations
are significantly different."[243]
"reasonable adjustments" and "reasonable
accommodation"
In addition to concerns raised by JCHR in relation
to the definition of disability under the Equality Bill, which
we echo, we note that the duty to make reasonable adjustments
for people with disabilities in the Bill is narrower than the
obligation of reasonable accommodation under the CRPD. Under CRPD
the UK is required to take all appropriate steps to ensure reasonable
accommodation where necessary to ensure the equal enjoyment of
human rights by persons with disabilities. Reasonable accommodation
relates to appropriate modification and adjustments not imposing
a disproportionate or undue burden, where needed in a particular
case.[244]
The equivalent duty to make reasonable adjustments
under the Equality Bill extends only to situations where person
with a disability faces a "significant disadvantage in comparison
to non-disabled people". This is a far more limited requirement
than the obligation under the CRPD, and reflects a test included
in Protocol 14 to the ECHR with the intention of raising
the bar for admissibility of petitions to the ECHR.[245]
FINAL COMMENTS
We hope that these comments are useful and would
welcome an invitation to provide oral evidence if the Committee
feels that would be valuable.
233 CESCR Concluding Observations on the UK, 22 May
2009, UN Doc. E/C.12/GBR/CO/5, para 16. Back
234
See for example the British Institute for Human Rights, BIHR response
to the Discrimination Law Review consultation paper "A Framework
for Fairness: Proposals for a Single Equality Bill for Great Britain",
4 September 2007; and Department of Health, Human Rights
in Healthcare Learning Event, 21 April 2008. Back
235
ICESCR Article 2(2) and ICCPR, Article 2(1). Back
236
UN CESCR, General Comment No. 20, 10 June 2009, UN Doc. E/C.12/GC/20,
para 35. Back
237
Ibid, para 8(b). Back
238
Most recently this was authoritatively interpreted in UN CESCR,
General Comment No. 20, 10 June 2009, UN Doc. E/C.12/GC/20 Back
239
Government Equalities Office, A Fairer Future: the Equality Bill
and other action to make equality a reality, April 2009, p 12. Back
240
Human Rights Committee, General Comment no. 18, para 10 (emphasis
added). For a similar view expressed in relation to the ECHR,
see D.H. and others v Czech Republic, Grand Chamber, Application
no. 57325/00, 13 November 2007. Back
241
Article 1 of ICERD and ICEDAW; Human Rights Committee, General
Comment No. 18, para 6; UN CESCR General Comment No. 20, para
7. Back
242
South West Africa Cases (Second Phase), ICJ Rep 1966, p. 6, 305-06. Back
243
Thlimmenos v Greece, Application No. 34369/97, 6 April
2000, para 44. Back
244
CRPD, Article 2 and 5(3). Back
245
Protocol 14 amends Article 34 of the ECHR to include
the "significant disadvantage" test in order "…to
maintain and improve the efficiency of the control system for
the long term, mainly in the light of the continuing increase
in the workload of the European Court of Human Rights…". Back
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