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.
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