Any of our business? Human Rights and the UK private sector

Any of our business? Human Rights and the UK private sector - Human Rights Joint Committee Contents

6 PROTECT: THE DUTIES OF THE UK

130. The duty on states to protect human rights may include the responsibility to regulate the behaviour of businesses and other private entities to safeguard the rights of others. The means by which states meet their duty cannot be prescribed and could vary from state to state. In his April 2009 report, Professor Ruggie explained:

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131. We called for evidence of specific gaps in the legislative and regulatory framework in the UK and we consider three significant issues raised with us in this Chapter:

The application of the Human Rights Act 1998 for the businesses performing public functions;
Forced labour in the UK; and
The recognition of labour and union rights.

The application of the HRA 1998 to the private sector

132. In our March 2007 Report, The Meaning of Public Authority under the Human Rights Act,[181] we called for the Government to take legislative steps to clarify the scope of the HRA 1998, to ensure that all private providers performing a public function would be subject to the direct application of the Act and the duty in Section 6, to act in a manner compatible with Convention rights, as Parliament originally intended. We considered the impact of the gap in the law created by the unduly narrow interpretation of 'public function' adopted by the UK's domestic courts and concluded that a legislative solution was necessary.[182] Subsequent to our Report, in YL v Birmingham, the House of Lords, confirmed this line of case law and concluded that private providers of publicly funded residential care were not performing a public function and the HRA 1998 did not apply to their activities.^[183] The Government introduced amending legislation in the Health and Social Care Act 2008 to remedy the immediate problem by deeming the provision of publicly funded residential care in private care homes a public function for the purposes of the HRA 1998.[184]

133. No witnesses to this inquiry argued that the scope of the HRA 1998 should be restricted any further. The Institute of Directors (IoD) expressed concern about the "serious danger of extending the language and the legislation of human rights to areas where they do not belong". Although it did not identify any particular danger the IoD argued that there was a risk that extending human rights obligations directly to service providers could reduce the ability of the private sector to provide public services in the most efficient way possible "without being burdened by a civil service mentality". It also thought that this could lead to contracts failing to define service standards appropriately, allowing contracting public bodies to rely on minimum standards in the Convention rather than setting individual contractual standards. The IoD added that in its view, some breaches of service standards may be considered breaches of human rights, but may not be sufficiently grave for human rights legislation to apply.[185]

134. Professor Ruggie stressed that, in his view, it was important to remember that the state can never contract out of its human rights obligations. It remains the responsibility of the state to ensure that any private provider continues to operate to standards that meet those obligations.[186] Although Professor Ruggie said that this could be achieved through the use of contractual obligations, he conceded that he was not familiar with the arguments raised in the UK in respect of this issue.[187]

135. In its response to our 2007 Report, published two years late, on 28 October 2009, the Government criticised our approach to the concerns of private sector providers.[188] It agreed that some private sector concerns were "exaggerated or overstated". However, the Government argued that we had failed to recognise that Government must "take into account the need to maintain a functioning market for the provision of public services" and so must provide "reassurance" to current or potential service providers.[189]

136. We have heard nothing new in this inquiry to suggest that we should change our view that legislative change is necessary to restore the original intention of Parliament, that all private bodies performing public functions should be subject to the duty to act compatibly with human rights. We are concerned that the Government's approach panders to the unjustified concerns of some in the private sector in order to maintain the market for contracted-out services and represents a significant shift from its earlier view that the scope of the HRA 1998 should be clarified. In our view, this apparent change of policy represents a failure of leadership by the Government on such an important human rights issue.

137. In our Report on the Health and Social Care Bill, we said that the resolution of the immediate problem of publicly funded care in private residential homes did not deal with the broader uncertainty of the meaning of public function.[190] We asked Michael Wills MP, the Minister for Human Rights, about this during our inquiry on a Bill of Rights for the UK, in May 2008, and he was clear that there was a wider constitutional issue beyond the issue of private care homes that needed to be taken seriously. He reassured us that the Government intended to move as quickly as it possibly could to consult on the broader issue of the scope of the HRA 1998:

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138. This assurance was repeated to us in January 2009[192] and in the House of Commons in June and July 2009.[193] Given this history, we were amazed that the Government's written evidence to this inquiry downplayed the significance of the problem, arguing that:

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139. The EHRC disagreed strongly with this position. It said the voluntary sector found the continuing uncertainty particularly difficult.[195] The SHRC told us that:

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140. Business for Social Responsibility argued that clarity in this area would add legal certainty for businesses and would be a 'valuable contribution' to this debate.[197] Other witnesses told us that uncertainty in the existing law was bad for business and bad for the protection of individual rights. Clifford Chance explained:

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141. Leigh Day told us that uncertainty was still leading to litigation:

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142. We are particularly concerned to hear evidence from public law solicitors that cases are being litigated over the exercise of compulsory powers in immigration detention. In our previous correspondence with the Government, we understood that the exercise of any compulsory powers associated with detention would be subject to Section 6 of the HRA 1998.[200] This evidence clearly illustrates the need for clarification of the scope of the HRA 1998. Although the Government considers that the legal position in respect of these cases is settled, we maintain that legislation is urgently needed to resolve the existing uncertainty surrounding the meaning of public authority, putting beyond doubt, in statute, Parliament's original intention. In the meantime, we recommend that the Government produce clear and detailed guidance to relevant Government departments and agencies in order to ensure that all public authorities and relevant contractors understand the scope of their duties under the HRA.

143. We asked the Government to confirm how many arguments had arisen over the scope of Section 6(3)(b), including in litigation and were told that the Government was only aware of one contested case that had proceeded since the case of YL. This case involves a decision of the Court of Appeal that the allocation and management of social housing by a registered social landlord was a public function for the purposes of Section 6, HRA 1998.[201] It was subject to appeal and the sub-judice rule of both Houses during our inquiry, so we did not take evidence on the case. Our view - that the provision of social housing further to statutory arrangements is a public function - is already a matter of record.[202] On 6November 2009, the Supreme Court refused permission to appeal in Weaver. The Court of Appeal judgment - that the allocation and termination of social tenancies by the defendant housing association was a public function - stands.

144. In its response to our 2007 Report, the Government reiterates the view that after the decision in YL, the law is largely clear and any uncertainty is marginal. It considers that this issue, although "frustrating" should not be allowed to "detract from the overall success" of the HRA 1998 or "give the impression that the scope of its protection has been significantly truncated".[203] It argues that there is a "serious misconception" about the extent of the effect of the YL judgment:

YL,

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145. We are concerned by the Government's analysis of the House of Lords decision in YL. In our first report on this issue, we explained that unless private providers could be directly challenged on human rights grounds, service users could face difficulties in challenging the public authority who contracted out the service. These difficulties included proximity to the harm which occurred under the care of the private provider and whether the public authority knew that the actions of the private provider were likely to endanger service users' rights.[205] These concerns are highlighted by the evidence provided by Leigh Day, that the Home Office has argued that it is not responsible for the activities of private contractors when faced with potential HRA 1998 claims.

146. The Government's view that YL was only about the right to bring legal proceedings is a disappointingly narrow interpretation of the public duty to act in a Convention compatible way. In numerous reports, we have reported that this duty is intended to improve the way that those bodies performing a public function provide their services. It is not just a cause of action, but a positive duty designed to protect individual rights and improve service delivery, without recourse to law. Although Section 7 HRA 1998 provides a right for individuals to enforce that duty by seeking a remedy for failure to act in a Convention compatible way, the duty is not just about the right to litigate.

147. The Government's view that the scope of the HRA 1998 is subject only to marginal uncertainty is not correct. We accept its view that in the wider context of the operation of the Act against core public authorities, the application of the HRA 1998 is settled and clear. We also agree that this issue should not detract from the overall success of the HRA 1998. However, we find unacceptable the Government's attempt to dismiss the outstanding problems created by the decision of the House of Lords.[206]

148. We asked Michael Wills MP to confirm the Government's position. He said that settling the issue of the scope of the HRA was important, but that a promised consultation was not imminent while litigation was continuing.[207] Without a legislative solution to the current state of case law on the scope of the Act, repetitive litigation on a case-by-case and sector-by-sector basis is inevitable. Continued delay can only exacerbate the problem. The Supreme Court is bound by House of Lords precedent in YL.[208] The courts will be bound to move further away from the original definition intended by Parliament, unless they decide to distinguish YL and all other earlier authorities in favour of a more functional test.

149. The Government has broken its promise to consult speedily on the scope of the HRA 1998. It is disappointing that the Government now relies on further litigation to justify its procrastination. In the time since the passage of the Health and Social Care Act 2008, a consultation could have been completed. An interpretative provision could still be inserted in the Constitutional Reform and Governance Bill. Instead, uncertainty continues for both business and the users of public services, who are forced to litigate to seek clarity.

150. The Government's decision to delay is unacceptable, particularly as it has already published its broad view on the sole issue currently before the courts, and on the wider debate. The litigation in Weaver is over. It is inevitable that litigation on other issues will surface. We are not persuaded that any further public consultation on this issue is necessary and call on the Government to bring forward a legislative solution as soon as possible. If the Government insists on publishing a formal consultation document, we recommend that they do so without delay. Any consultation should be short in duration and focus on a proposed legislative solution.

Offence of forced labour in the UK

151. Anti-Slavery International highlighted the issue of servitude and forced labour in the UK. Despite many efforts by the UK Government over the past decade, it told us that gaps in the law were allowing forced labour and modern slavery to continue in the UK. particularly in the agriculture and food packaging industries.[209]

152. It told us that forced labour generated high profits for those involved. It was often difficult to detect as it most often involved migrant workers in the informal labour market:

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153. The principal gap in the law identified by Anti-Slavery International is the failure to criminalise the act of using a person for compulsory or forced labour, as distinct from the act of trafficking. Article 25 of ILO Forced Labour Convention (Convention 29) provides that the UK must penalise these offences. Article 4 ECHR prohibits servitude and forced labour. The European Court of Human Rights considers that a failure to criminalise these acts can amount to a failure to provide specific and effective protection for victims.[211] Together with Liberty, Anti-Slavery International proposed amendments to the Coroners and Justice Bill to make it an offence to hold another person in servitude or subject a person to forced or compulsory labour.[212] At Third Reading in the House of Lords, the Government brought forward its own amendments to introduce an offence of slavery, servitude, forced or compulsory labour.[213] Introducing the amendments, Lord Tunnicliffe explained that the offence would be brought into force "as soon as practicable". The Government anticipated that guidance and training would be provided for the police on the scope of the new offence. The Government committed to work with stakeholders and others to raise awareness of the offence.[214]

154. We commend the Government's acceptance that a specific offence of servitude and forced labour was necessary to meet our international obligations to prohibit and prosecute these acts of modern slavery and welcome the provision included at a late stage in the Coroners and Justice Act 2009.

155. We note that the Government "anticipates" that guidance and training will be provided on the scope of the new offence. We welcome the Government's commitment to promote awareness of this offence. We recommend that the Government works with the Association of Chief Police Officers and other relevant stakeholders, including business organisations, to ensure that adequate guidance is produced for both police and the wider community in an accessible way.

Labour and Union Rights

156. A number of trades unions and trades union associations told us that existing laws in the UK do not go far enough to protect employees' labour rights or their trades union rights, as guaranteed by the right to freedom of association (which is protected by Article 11 ECHR and the International Covenant on Economic Social and Cultural Rights (ICESCR)); the rights guaranteed by the ILO Conventions (specifically, the Conventions on freedom of association and the effective recognition of the right to collective bargaining (Conventions 87 and 98)), and the European Social Charter.[215] Broadly, they argued:

states, including the UK, must treat certain labour rights as human rights with the appropriate degree of protection. These labour rights include the right to strike, the right to collective bargaining and the right to organise, including through a trades union.[216]
states should not be permitted to ignore their obligations under existing human rights instruments in respect of labour and trades union rights.[217]
The UK Government has responded to criticism by the supervisory bodies of the ILO and the UN on these issues by asserting that existing laws are compatible with the relevant Convention obligations, despite repeated criticisms of the UK Government approach by those bodies.[218]
The UK should ratify the revised European Social Charter to allow collective complaints against the UK to be brought before the Council of Europe Economic and Social Rights Committee.[219] This reiterates a recommendation of our predecessor Committee in its 2005 report on the review of international human rights instruments.[220]

157. The IER and the TUC argued that the right to collective bargaining through an independent trades union is inadequately protected in the UK. They maintain that the existing statutory recognition procedure for trades unions is overly complicated, does not extend to small businesses, and allows many businesses to avoid collective bargaining. In October 2004, in its report on the ICESCR, our predecessor Committee concluded that inconsistencies in the provisions of the Employment Relations Act 1999 could lead to breaches of the ICESCR and the right to respect for private life under Article 8 ECHR.[221] It concluded that the existing law was inadequate and criticised the consistent failure of the Government to answer the criticisms of the relevant international monitoring bodies.

158. The IER and the TUC said that the right to strike is undermined by the operation of the common law, which provides that strike action is a breach of the employment contract. Although domestic law currently provides for a 12 week protected period during which dismissal will be deemed unfair, the IER calls for the law to be amended to provide that strike action suspends rather than breaches the contract of employment. They point out that this is consistent with a number of recommendations of international human rights bodies, including the UN Economic, Social and Cultural Rights Committee.[222]

159. The right to freedom of association, the associated right to strike, the right to trade union membership and the right to collective bargaining are rights recognised in the international human rights obligations of the UK and overseen by the European Court of Human Rights, the ILO and the UN Committee on Economic, Social and Cultural Rights. The UN Committee on Economic, Social and Cultural Rights and the ILO Committee of Experts considers that current domestic law on the right to strike and the right to collective bargaining places undue restrictions on those rights. The UK Government has failed to take the recommendations of those Committees seriously. We reiterate our predecessors' recommendation that the UK Government review the existing law in the light of those recommendations.[223] We note that the European Court of Human Rights is increasingly citing the findings of the UN Committee and the ILO in its interpretation of the right to freedom of association guaranteed by Article 11 ECHR.[224] This jurisprudence may be relied upon in the domestic courts to challenge the compatibility of existing law with Convention rights protected by the HRA 1998. This provides an added incentive to the Government to conduct a review without delay.

160. The IER argued that enabling trades unions to complain of breaches of the European Social Charter would increase the relevance to the UK's domestic courts of the jurisprudence of the ILO Committee and the Social Rights Committee of the Council of Europe in a way that had not previously been considered relevant. They agreed that the indirect effects of ratification were important:

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161. In 2004, our predecessor Committee called on the Government to ratify the Revised Social Charter at an early date. It made this recommendation after receiving the Government's reassurance that it intended to ratify.[226] The Government said in 2004 that it intended to ratify the Charter. We recommend that it explain why it has not done so. We repeat the recommendation of our predecessor Committee in 2004: the UK should ratify the Revised Social Charter.

162. The IER and the TUC argued that the Information Commissioner's recent discovery of an unlawful "blacklist" database of construction employees should prompt the Government to use existing regulation making powers under Section 3 of the Employment Relations Act 1999 to create a new framework to stop the blacklisting of employees involved in trade union activity. In July 2009, the Department for Business, Innovation and Skills (BIS) published draft regulations for consultation.[227] The IER and other unions, particularly UCATT, have criticised the draft Regulations. Professor Keith Ewing of the Institute of Employment Rights dismissed the draft Regulations as "hopeless and inadequate".[228] UCATT consider that the proposals do not go far enough to stop blacklisting trades union members and that they fail to establish a compensation scheme for those individuals who have already been affected by blacklisting.[229] The Government is expected to introduce regulations before the end of 2009.

163. We doubt the compatibility of the Government's blacklisting proposals with the UK's international human rights obligations. We recommend that the Government provide a full explanation of its argument that the proposals are compatible. This should include a response to the criticism of the Institute of Employment Rights, that these proposals fail to provide an adequate remedy for those individuals who have already been affected by blacklisting. In the light of the Government's explanation, we anticipate revisiting this issue.

180 Ruggie Report 2009, para 14 Back

181 Ninth Report of Session 2006-07, Meaning of Public Authority under the Human Rights Act, HL Paper 77/HC 410. Back

182 Ibid, see paras 135 - 136. Back

183 YL v Birmingham City Council [2007] UKHL 27 Back

184 Health and Social Care Act 2008, Section 145. Back

185 Ev 108, paras 7 - 12 Back

186 QQ 7-8 Back

187 Q10 Back

188 Cm 7726, Ministry of Justice, Government Response to the Joint Committee on Human Rights' Ninth Report of Session 2006-07, October 2009. Herein "The Government Response". Back

189 The Government Response, para 89 Back

190 Eighth Report of 2007-08, Legislative Scrutiny: Health and Social Care Bill, HL Paper 46/HC 303, paras 1.22 - 1.24. Back

191 Q470, Twenty-ninth Report of 2007-08, A Bill of Rights for the UK?, HL Paper 165-II/HC150-II. Back