Legislative Scrutiny: Coroners and Justice Bill (certified inquests) - Human Rights Joint Committee Contents


Written Evidence: Local Democracy, Economic Development and Construction Bill


Letter from the Chairman to Baroness Andrews, Parliamentary Under-secretary of State, Department for Communities and Local Government, dated 10 February 2009

The Joint Committee on Human Rights is currently scrutinising this Bill for compatibility with the United Kingdom's human rights obligations.

We note that a significant part of the Bill relates to the governance of local authorities and their duties in respect of local participation in democracy and decision making.

We, and our predecessor Committee, have both recommended that all public authorities, including local authorities, should be subject to an express positive duty to protect and promote the Convention rights guaranteed by the Human Rights Act 1998. In our 2008 Report on Adults with Learning Disabilities we argued:

The creation of a positive duty to respect human rights would help kick-start a change of attitude to the role of the Human Rights Act and to rights more generally. We doubt that, at least in the short term, oversight by the Equality and Human Rights Commission will encourage individual authorities to take a more proactive approach. On the other hand, witnesses to [our inquiry on human rights and adults with learning disabilities], including the Minister for Care Services and the Minister for Disabled People, stressed their view that the potential impact of the Disability Equality Duty will be to change fundamentally the way that public authorities look at disability rights. We remain persuaded that the same is true of positive duties and the Human Rights Act. We reiterate our recommendation that the Government consider the introduction of an express positive duty on public authorities to promote respect for human rights, where the European Convention on Human Rights imposes a positive obligation on the State.[41]

The ECHR, and the HRA 1998 already impose positive duties on local authorities to take action to protect the rights of individuals, in some circumstances. We consider that, like the positive duties under existing equality legislation, a clear, express positive duty on local authorities to protect and promote Convention rights could change the approach of councils to their obligations under the HRA 1998.

I would be grateful if you could provide some more information on the Government's approach to the equality and human rights duties associated with local authorities:

a)  Does the Government agree that local authorities' positive equality duties have enhanced protection for individuals from discriminatory treatment in relation to local public services? If not, why not? If so, could you provide us with some practical examples.

b)  Does the Government consider that the financial or administrative burdens placed on local authorities by existing equality duties have been proportionate to any benefits achieved for local residents? If not, why not?

c)  Does the Government agree that local authorities are already under positive duties to take action to protect the Convention rights of their residents in certain circumstances?

d)  Can you give us some explicit examples of steps taken by Government to make it clear to local authorities that their duties under the HRA 1998 include positive duties?

e)  Can you give us any clear examples which show that local authorities have taken steps to meet those positive duties, where necessary, through changes to their policies and practices?

f)  Are you aware of any local authorities which have conducted an audit of their existing policies and practices for compatibility with the Convention rights guaranteed by HRA 1998? If so, we would be grateful if you could provide us with the details of any such audits and their outcomes.

I would be grateful for a response by 24 February 2009 and if you could email an electronic copy of any reply, in Word, to jchr@parliament.uk. I have copied this letter to Trevor Phillips, Chair of the Equality and Human Rights Commission (EHRC), in the light of the Commission's ongoing investigation into the implementation of the Human Rights Act 1998. We would welcome any comments which the EHRC would like to make about implementation of the Human Rights Act 1998 by local authorities.

Letter from Baroness Andrews to the Chairman, dated 23 March 2009

Thank you for your letter of 10 February 2009 in relation to the above Bill. I am extremely sorry for the delay in responding.

You asked about the equality and human rights duties placed upon local authorities. This is in the context of your Committee's suggestion that there should be "an express positive duty on public authorities to promote respect for human rights, where the European Convention on Human Rights imposes a positive obligation on the State".

A positive obligation under human rights law denotes an obligation on the State to take positive steps actively to protect human rights; these steps may include the creation of legal or institutional structures, for example, or the allocation of resources. By way of a specific example, the European Court of Human Rights has held that States are under a positive obligation under Article 2 (the right to life) to put in place and enforce criminal law to deter the commission of offences against the person. Similarly, the Court has found that States are under a duty under Article 6 (the right to a fair trial) to provide free legal assistance in criminal trials to impecunious people.

By virtue of section 6 of the Human Rights Act, it is unlawful for a public authority to act in a way which is incompatible with a Convention right. Section 6(6) clarifies that "an act" include a failure to act. Therefore, where the Convention rights incorporate the imposition of a positive obligation upon the United Kingdom, that positive obligation is also placed upon public authorities that are subject to the Act. Any further provision making reference to specific positive obligations under the Convention would therefore be otiose.

Positive obligations should not however be confused with the idea of a general obligation upon public authorities to promote respect for the Convention rights, which your Committee has also previously advocated. However, as the Government has previously explained, it is of course only public authorities themselves that have an obligation under the Human Rights Act to respect the Convention rights. Such a general obligation could therefore only require public authorities to promote respect for the Convention rights to other public authorities. In any case, it would seem unlikely that such a general duty would be within the scope of the Local Democracy, Economic Development and Construction Bill.

This proposal for a general duty to promote respect for the Convention rights can of course be distinguished from the duties already contained in the Bill to promote democracy. These aim to make citizens more aware of the democratic process, enabling them to understand better who makes decisions about their local services, how to influence and take part in making those decisions, and how to stand for or seek appointment to civic roles such as councillor, school governor and magistrate. Although the duties are placed on local authorities, their policy aim is to increase awareness amongst citizens, not among public authorities themselves.

Since the passage of the Human Rights Act in 1998, the Government's aim has been to encourage a culture in public authorities in which fundamental human rights principles are seen as integral to the design and delivery of policy, legislation and public services. Following the Review of the Implementation of the Human Rights Act completed in July 2006 by the former Department for Constitutional Affairs (DCA), the Ministry of Justice - the successor to the DCA - has led a programme of work to implement the recommendations of the Review.

The Ministry of Justice produced generic guidance for public authorities, which they encouraged public authorities to adopt and adapt to suit their own requirements. As of March 2009, over 115,000 copies have been distributed of the suite of guidance, which comprises the handbook Human Rights: Human Lives and the summary booklet and DVD Making Sense of Human Rights; these have been distributed within central Government, to departments' sponsored bodies, and to other public sector organisations. This guidance discusses all the obligations, including positive obligations, that arise from the Convention rights.

One local authority that has taken particularly proactive steps in relation to its human rights obligations is the London Borough of Southwark. It has integrated human rights into its decision-making process as part of the Equality Impact Assessment. It has established an Equalities and Human Rights Scheme, and has identified a lead Member to champion equalities and human rights, currently Councillor Adele Morris, the executive member for communities, equalities and citizenship.

The Council's starting point was to audit two key service areas (housing and social services, as they were then called) to see if their policies and procedures were compliant with human rights. The Council also identified training needs and commissioned the services of the British Institute of Human Rights (BIHR) as their training provider. The training was piloted in their social services and housing departments before developing a rolling programme of training. Over 600 staff and some councillors have received the training. The Council has now added an action planning section to the training, which assists staff to think about how they can embed human rights approaches into the way that they work and provide services. Feedback from the training is very positive and staff have continued their development through the application of a human rights framework to their day-to-day activities.

The Council has an ongoing partnership arrangement with the BIHR, building on the training they have provided, to promote best practice within Southwark and other organisations. For example, their local Primary Care Trust is taking part in the Department of Health project "Human rights in health care: a framework for local action". Risk assessment processes have also been improved within the Council so that staff take into account human rights considerations when implementing new legislation, policies, practices and procedures.

I note in conclusion that you copied your letter to Trevor Phillips, Chair of the Equality and Human Rights Commission (EHRC). It is of course part of the duties of the EHRC, as set out in section 9(1) of the Equality Act 2006, that they should encourage public authorities to comply with section 6 of the Human Rights Act 1998. As noted above, this would include promoting compliance with the positive obligations that arise from the Convention rights.

I am copying this letter to Trevor Philips.


41   Seventh Report of Session 2007-08, paragraph 117- Back


 
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