Memorandum submitted by the CAB
INTRODUCTION: THE
CAB SERVICE AND
HUMAN RIGHTS
Citizens Advice provides free, independent,
confidential and impartial advice to everyone on their rights
and responsibilities, though a network of 420 bureaux providing
quality assured services in over 3,000 locations throughout
England and Wales. The CAB service values diversity, promotes
equality and challenges discrimination. In 2007-08 the CAB
service dealt with 5.5 million problems in total, including
consumer issues, employment and housing.
Our approach is that equality, diversity, and
human rights are inextricably linked with good customer service
standards and business practices. We are all different or diverse,
and yet we all share a common, equal humanity. In providing advice
and promoting equality, we focus on peoples' rights as consumers
to equal and fair treatment in law and in practice, challenging
injustice and discrimination. Many of the problems that bureaux
deal with can engage convention (EHRC) rights, for example:
— In 2007-08 bureaux dealt with 79,296 problems
related to immigration, asylum and nationality issues—approximately
21% of these concerned nationality and citizenship, 27% family,
dependents & partners, and 15% refugees and asylum seekers.
— CABx dealt with over 73,846 heath
and community care enquiries; 12% of enquiries concern services
for people with mental health problems, and 34% relate to residential
or community care issues.
— In 2007-08 bureaux handled 274,814 enquiries
relating to legal issues. A third of these of these concerned
court proceedings.
— Bureaux currently handle over 22,000 discrimination
advice enquiries every year. The majority of these concern sex,
disability and race discrimination, although the numbers of discrimination
enquiries relating to age, religion and belief, and sexual orientation
are growing.
Bureaux also work in trying to help consumers
access their rights where they have been treated unfairly, many
of the same issues arise with commercial providers as those services
supplied by the public sector and particular detriments can arise
for consumers where "social products" such as mortgages
are mis-sold or inappropriately managed and delivered. For example:—
— In 2007-08 bureaux dealt with 64,053 problems
on Mortgage & secured loan arrears and 99,922 problems
over private rented property.
— Over this period bureaux also dealt with
127,433 problems on Bank & building society overdrafts,
many of which resulted in serious adverse debt consequences for
consumers and detrimental impacts.
We therefore welcome this inquiry as extremely
timely given the current debate in the political arena about legislating
more widely for a culture of "rights and responsibilities"
in the UK. It is a common misconception about human rights that
they are relevant only to those living under or fleeing repressive
regimes in other countries, and are mainly concerned with torture
or the grossest kinds of cruelty and ill-treatment. In fact, human
rights are equally relevant at an individual and community level
underpinning many aspects of everyday life and contractual decisions;
they are rooted in the affirmation of every person's individual
dignity and worth. As ten years have now passed since the Human
Rights Act was enacted, it is an opportune moment to review how
far social institutions have come in building a human rights culture,
the role of business transactions in respect of human rights,
and the development of wider corporate social responsibility (CSR)
agendas based on human rights principles.
SUMMARY OF
KEY POINTS
Our starting point is that economic and social
rights are integral to the enjoyment of rights guaranteed under
the European Convention, and are especially important to our clients
in the current conditions of economic uncertainty. The link between
economic and social rights on the one hand and civil and political
rights on the other is especially important in the context of
business transactions supplying goods and services to mass markets.
The effects of business behaviour on individual rights can be
evidenced from the experience of CAB clients in the following
ways:—
— Consumers often depend on the financial
and legal services sectors for the realisation of many key rights
such as security of the home and family, and access to the legal
system. Regulation of these sectors therefore needs to incorporate
a human rights strand.
— Many key "public goods" (eg
utilities and other essential services) which go with human rights
are only accessible through consumer markets rather than the state.
We therefore question the presumption that only the state should
have obligations under human right law; it is now widely accepted
that business should be covered by equality legislation enforceable
by the Equality and Human Rights Commission, so if follow that
human rights norms should also apply.
— Key public services can also be delivered
through market mechanisms, for example through public sector procurement.
These services provided by business range from legal aid to care
services and publicly funded work training programmes—some
of these services may not always "public authorities"
for the purposes of the Human Rights Act, but service failures
can have devastating consequences for peoples' rights in the UK.
— Employees and workers have varying levels
of protection against abuse of their rights; workers in the "informal
economy" can face particular exposure to the abuse of their
fundamental rights where businesses are operating at the boundaries
of legality and light regulation. Protection of rights in this
sphere is particularly important given the Government's welfare
to work policies which emphasis the value of law paid work as
an alternative to benefits.
The boundaries between the public and private
sectors can therefore very often be blurred. It is widely accepted
that the State has duties to all citizens with respect to the
protection of fundamental human rights, the case now needs to
be made that business should also have similar duties when managing
the delivery of public goods, public employment and public services.
Take for example our system of courts and legal
redress. The justice system in particular needs to uphold the
highest standards of human rights; Citizens Advice have often
expressed concerns from our evidence about the activities of a
range of business intermediaries in the "justice market"
who work with civil law processes, from civil recovery to claims
management and debt collection practices. Often we see examples
of bullying, mis-selling and intimidation of clients in the name
of the justice system, and the poor outcomes delivered as a result.
The standards of all activities and agencies in the justice system
must be informed by human rights principles.
Another clear example is the housing sector,
a mixed market of public and private provision of ownership and
tenure. Weak legal protection can leave people unnecessarily exposed
to homelessness risks, and exploitation by some unscrupulous landlords
and property market intermediaries.
We are therefore using this enquiry to call
for a strengthening of regulatory regimes and civil law remedies,
whether judicial or non-judicial, and the extension of human rights
standards beyond their current application to public authorities.
However success in human rights policy can only be measured in
terms of prevention of widescale abuses and breaches of rights,
rather than restitution where breaches occur.
The Government therefore needs to be proactive
with business and the voluntary sectors so that human rights can
become better understood and mainstreamed within customer service
standards. In our policy work we have called for
— Extending the ambit of the Human Rights
Act to all public services whether provided by organisation from
the public, commercial or not for profit sectors
— Enhancing sectoral regulation and licensing
regimes with a human strand to inform customer standards, and
a co-regulation approach with respect to the interaction between
human rights institutions, trade bodies, regulators and inspectorates.
— Strengthening regulation of commercial
agents and intermedaries in key sectors such as legal services
and housing.
— Introducing vulnerability criteria—informed
by human rights standards—into consumer protection and the
regulation/mitigation of informed choice in contract law.
— A general fair trading duty
— Enhancement of private law remedies and
redress rights.
— Redressing imbalances in the legal aid
system.
— The establishment if a general consumer
Ombudsman
PRELIMINARY COMMENTS—BUSINESS
AND HUMAN
RIGHTS.
Business drives today's economy both at the
global and local level and many of the key levers of political
power and social capital, so it is necessary to engage business
governance in matters which affect human rights in the economic
sphere. Often it is forgotten that economic and social rights
are as integral to the enjoyment of human rights as civil and
political rights are.
The preamble to the Universal Declaration on
Human Rights, which was adopted by the United Nations in 1948,
states that the highest aspiration of peoples was the "advent
of a world in which human beings shall enjoy freedom of speech
and belief and freedom from fear and want." In this foundational
human rights document civil and political rights (to vote, to
be free from torture and slavery, to speak freely, to have religious
freedom) and social and economic rights (to work, health, education,
food and shelter, and social security) were set out together,
as interlocking and interdependent rights. Moreover, the International
Covenant on Economic, Social, and Cultural Rights commits governments
to taking steps to ensure that everyone has an adequate standard
of living, including adequate food, clothing and shelter. This
Covenant also guarantees rights to: just and favourable conditions
of work; the highest attainable standard of physical and mental
health; free basic public education; participation in trade unions;
social security, such as pensions and employment insurance; and
support for families.
The human rights framework therefore cuts across
all areas of business, commercial and public service delivery
and provides important protection for vulnerable or disadvantaged
groups. The CAB service is passionate about these issues, because
many of our clients have poor basic skills, speak English as a
second language, live in poverty, suffer financial hardship, experience
some form of discrimination because of race, religion, gender,
sexuality, age, disability, have disability or health problems,
have offended or be at risk of offending, and experience difficulty
in accessing services. For bureaux, human rights can therefore
be an important lever to help empower vulnerable groups.
The UK has a strong human rights record and
a strong tradition of fairness in legal and administrative decisions.
However, increasing use of automated systems by business in service
delivery, the application of blanket policies without discretion,
poor customer service, and misunderstanding about how human rights
principles can be used to enhance service design and decision-making
can sometimes leave people short changed on their rights, especially
those from minority communities or vulnerable groups or where
individuals have particular needs. There remains significant scope
for improvement in respecting people's human rights when designing
the delivery systems for providing services to the public and
mass markets.
Our first main general concern is that the existing
human rights framework is very poorly understood in terms of benefits
to both business and consumers. Low levels of awareness and misconceptions
about human rights in the community mean that people may not perceive
their problem or complaint as a "human rights issue".
The Joint Select Committee on Human Rights has previously concluded
that the Government has done 'nowhere near enough' to use the
Human Rights Act to improve the delivery of services and has allowed
a catalogue of myths to build up around the true purpose and use
of the Act in the UK, including the false notion of a "compensation
culture".[452]
Peoples' understanding of their rights and possible remedies is
limited; and as yet there is little awareness of the EHRC or what
it does. Recent initiatives in public legal education have demonstrated
that low levels of legal literacy in the UK contribute to mis-perceptions
of human rights.[453]
Secondly, we consider that the Government's
continued exclusion of economic, social and cultural rights from
the legal framework to be a disappointment and a public policy
failure. As the Joseph Rowntree Trust points out discrimination
against people on the grounds of poverty is a common but unacknowledged
feature of life in the UK and the lack of socio-economic rights
within our legal framework prevents discussion on combating poverty
on the basis on the human rights values and principles.[454]
The UK does however have a robust legislative regime for combating
discrimination and in promoting equality including specific duties
on public authorities. By way of contrast, human rights principles
have a more general application and one of the useful roles for
human rights is in "filling the gaps" where vulnerable
or disadvantaged groups may be without legal protection. We would
therefore like to see the human rights framework developed as
a way of strengthening existing regulatory or legal protection
regimes.
The key strategic challenge is how to engage
business constrictively in the Human Rights agenda. CABx and the
wider voluntary sector have an important role here in developing
partnerships with business so that a culture of rights is more
widely acknowledged as desirable and normative. As the IPPR have
suggested, insufficient capacity within the voluntary sector to
develop human rights advocacy is one of the reasons that the HRA
regime is seen more as blunt instrument of litigation than a vehicle
for social change and development.[455]
INQUIRY QUESTIONS
1. How do the activities of UK businesses
affect human rights both positively and negatively?
We consider that it is important to engage the
business community in human rights issues, as the following activities
and sectors of UK businesses can affect human rights both positively
and negatively.
— The legal services industry
— The financial services industry
— Landlord and property intermediaries
— Welfare to work services providers
— Labour providers (eg Gangmasters)
— Utilities and basic services
— Door step sales and pressure/rogue selling
or fraud/scams
CAB evidence on these sectors and activities
sometimes raises concern that human rights can become engaged,
and compromised, where poor business practices and customer service
standards are allowed to develop unchecked and without redress.
There is therefore an extremely important role for the sectoral
regulators and the legal system, as well as market mechanisms,
to ensure that business practices are kept in check for both their
positive and negative impact on the enjoyment of human rights
in the UK.
2. How do these activities engage the human
rights obligations of business in the UK?
We will attempt to answer this with reference
to the specific sectors we have mentioned above.
THE HOUSING
SECTOR
Articles 12 and Article 1 (Protocol
1) of the European Convention refer to the protection of home
and family life—rights which can be clearly affected by
practices and the legal framework across the whole housing sector,
not just local authority housing departments which can be held
liable as public bodies under the existing framework of the Human
Rights Act. And whilst the Government have responded to mitigate
the crisis over rising home repossessions from unsustainable mortgage
debt, we are concerned as are many housing charities, that private
tenants are now the forgotten victims of the repossessions crisis—especially
tenants who risk losing their homes when their landlords are repossessed.[456]
Landlords and businesses in the private letting businesses
have significant power over peoples housing rights, and tenants
often lack legal protection. So for example, the current legal
framework in the private rented sector (Housing Act 1988) means
that the majority of lettings are made on an assured shorthold
basis. This type of tenancy gives the tenant very little security
of tenure after the initial six months fixed term. A consequence
of this lack of security is that tenants fear to exercise their
statutory rights or to complain about issues such as disrepair,
in case the landlord retaliates by serving a Section 21 notice.
Tenants are therefore effectively disempowered, and are often
reluctant to exercise the few legal rights which they do have
(for example the right to a gas safety check, or the right to
have their deposit protected) for fear of loss of their home through
"retaliatory eviction".[457]
Around 3 million households live in the
private rented sector and the majority (60%) of private rented
homes are now let via an agent rather than directly from landlords;
we have concerns about practices in this largely unregulated market
also.[458]
A further problem arises in the private rented sector in circumstances
where the landlord has fallen into mortgage arrears and is being
repossessed by the lender. This has become more common in the
current economic climate and bureaux dealt with around 1000 such
cases in 2008/9. In these circumstances, the property rights of
the lender to regain possession "trump" even the minimal
rights of the tenant (whose home it is), to a two months notice
period and separate court action before being evicted. Instead,
all the tenant is entitled to receive is a letter from the lender
addressed to "the occupier" providing information about
the date of the lender's court hearing again the landlord/borrower.
This can apply even where the tenant is fully up to date with
their rent and/or is in the fixed period of a tenancy. Bureaux
regularly report cases where the tenant never gets to see the
notice letter and the first they know that anything is wrong is
when the bailiffs arrive to evict them. For example
A CAB client living in Staffordshire and suffering
from cancer who first heard of his landlady's repossession when
he received a Notice of Eviction from the Bailiffs. He was assured
by his landlady not to worry as it was all being sorted out. This
was untrue as the bailiffs then came in, evicted the client and
changed the locks before he could even remove his possessions
and essential medication.
Citizens Advice therefore welcomed the independent
review of the private rented sectors whose terms of reference
are "to consider what barriers exist in ensuring the sector
consistently offers a fit for purpose product, what role it has
into the future and what actions could be taken to influence and
support that role." We hope that the review will provide
an opportunity to take forward these issues, and we have also
called for the complete removal of Ground 8 eviction route
from all housing suppliers.[459]
THE LEGAL
AND FINANCIAL
SECTORS
Article 6 of the European Convention recognises
that access to justice and fair treatment from the justice system
is fundamental right, and is closely allied to all the other convention
rights. Businesses which operate as private agencies within the
civil justice system therefore need to be mindful that the purpose
of the justice system is to protect basic rights, however contentious
or difficult the process can be for some people. So profit motives
should never be used to override basic human rights standards
in the administration of justice or apportionment of contractual
and tortious responsibilities.
In this context, Citizens Advice have raised
several concerns about the activities of many intermediaries in
the legal services market, especially claims management companies,
and some industries connected with civil law enforcement such
as private bailiffs. It is axiomatic to the success of the Human
Rights Act that the legal system is used appropriately and proportionately.
Where Citizens Advice have found evidence of systemic consumer
problems with accessing personal injury redress for example, with
widespread misselling of conditional fee agreements to PI claimants,
who have often incurred more costs than the compensation to which
they are entitled, we have campaigned for better regulation of
this sector on the basis of human rights principles.[460]
Another example, is that in recent years Citizens
Advice has received a steady stream of reports from Citizens Advice
Bureaux about the use of the 'civil recovery' process against
both (dismissed) employees alleged to have committed theft during
the course of their employment, and alleged shoplifters. The vast
majority of these cases involved the same self-proclaimed "civil
recovery specialists" which claim to have recovered more
than £3 million on behalf of many well-known companies
since starting operations in 1998. This company works on a 'no
win no fee' basis for its clients which includes many household
names such as Argos, Boots, Iceland, Ikea, Lidl, Morrisons, Tesco,
TK Maxx, and Waitrose. It does so by sending demands for "redress
for the loss and damage caused by your wrongful actions",
and threatening "use of all civil law remedies", including
county court proceedings, if payment is not made. Total amount
demanded vary considerably—from as little as £87.50 to
several thousand pounds—according to the circumstances of
the case, but is usually made up of separate amounts for each
of: "the value of the goods or cash stolen, if not recovered
or unfit for resale" (which in some cases is given as "nil");
"staff and management time"; "administration costs";
and "apportioned security and surveillance costs". Some
of their letters also state that "the personal information
we hold [on you]" will "now be held on a national database
of incidents of dishonesty" and "may be used in the
prevention of crime and detection of offenders including verifying
details on financial and employment application forms". The
company's website claims that it has "the largest database
of dishonest people, outside the Police Force".
However, from the cases reported by CABx, it
would appear that, notwithstanding this company's self-description
as "dedicated civil litigators", it has successfully
pursued few if any demands in the civil courts since three cases
in the late 1990s, all in the same Court. The company appears
to play the percentage game, thus making its income from the majority
who are sufficiently ashamed and/or intimidated by the mere threat
of legal action to pay the amount demanded, and quietly dropping
most—if not all—of those demands that are challenged
robustly, or simply ignored. These intimidatory practices are
surely incompatible with human rights standards for the justice
system.
The bailiff and debt collection industry and
practices is another area within the legal and financial sector
where we have serious concerns about the appropriate use of the
legal powers and the regulation of actual debt recovery practices.
Some of these practices can also engage other rights such as respect
for property and private life, and sometimes which see behaviour
in the industry which is so intimidatory to clients that it could
reasonably understood as degrading treatment.
WELFARE SERVICES,
EMPLOYMENT PROTECTION
AND WWELFARE
TO WORK
In recent years we have seen the development
of many new businesses and enterprises working with people who
have been unemployed, sometimes lacking appropriate skills and
struggling on low incomes, and who need to access either benefits
or basic employment. This business sector plays an increasingly
important role in social policy, from the direct delivery of public
services and public service outcomes, as intermediaries and also
as providers of employment, training and other services.
Our evidence raises particular concerns on the
conduct of medical and other assessments undertaken for the purposes
of determining incapacity and disability benefit entitlement,
and work capacity under the Government's various "welfare
to work" programmes.[461]
These assessment schemes are largely operated from the private
sector on a contacted out basis, and within a policy framework
that is increasingly moving towards conditionality and compulsion.
The Government's "Welfare to Work"
strategy places considerable emphasis on the value of low paid,
low skilled work as a subsistence alternative to living on benefits.
However, hundreds of thousands of the most vulnerable and low
paid workers in the UK economy, many of them performing unglamorous
but essential tasks, are exposed to persistent inequality and
unfair treatment by businesses as employers. This workforce are
non-unionised, and are working from home or in small workplaces
such as care homes, hairdressers, bars, restaurants and hotels,
shops and other retail centres, food processing factories, cleaning
companies, and other low-skilled or "service" jobs in
which, according to many economic analysts is the sector of the
economy in which there has been significant growth in recent years,
and it is entrenching inequality and social immobility into our
society. In some cases, this lack of social and employment rights
protection and entrenchment of socio-economic disadvantage can
undermine our culture of respect for basic human rights, perhaps
for example most graphically illustrated by the tragic events
of Morcambe Bay. CAB evidence points to the difficulties of enforcing
rights in these sectors—despite regulatory interventions
such as gangmaster licensing ;[462]
for example:—
East Lindsey reported the case of a Polish couple
who had both been working through a GLA-licensed gangmaster. The
husband had been employed as a driver of one of the gangmaster's
minibuses, and both he and his wife had been summarily dismissed
when he refused to drive an unsafe minibus.
CARE SERVICES
It is in the care system that people are at
their most vulnerable, so we have argued that it should be completely
unambiguous that human rights laws and standards must apply directly
to all health and care service providers, quite regardless of
their sectoral affiliation/classification, profession etc. Moreover,
regulators and healthcare authorities must ensure that these standards
are adhered to; failure to deal with abuses in the care market
is as much an issue for human rights. Bureaux often come across
situations in which poor decisions, care standards or inadequately
trained personnel can endanger people's life quality, and seriously
compromise personal dignity and family relationships or even their
right to life.
ESSENTIAL SERVICES,
SELLING AND
GENERAL CONSUMER
MARKETS.
There are many services that could be described
as "public goods" only accessible through consumer interactions
with markets. Some systemic unfairnesses can arise in these markets,
where there is too greater an imbalance of power between providers
and consumers—for example where low income consumers have
to pay a "poverty premium." In addition, individual
cases reported by Citizens Advice Bureaux in the last few months
reveal the detrimental impact that dubious sales and marketing
activities can continue to have on individual CAB clients, many
of whom are vulnerable in some way:
A CAB in Cambridgeshire reported a case involving
a client who has ongoing mental health problems and suffers from
depression. The client was alone in his girlfriend's house when
he was cold-called on the doorstep by a representative acting
on behalf of a fuel supplier about changing the electricity supplier
for the house. The client told them that it was not his house
and he could not make any decisions about switching supplier without
seeing examples of their charges. The sales representative then
persuaded the client to sign a piece of paper so they could show
him their charges. The client did not check what he was signing
but now accepts he must have unwittingly signed for a change in
supplier. He has now received a demand for £706.17 from
a debt collection company acting on behalf of the supplier.
The use of pressure selling itself raises human
rights issues, and can often be the basis of fraudulent activity
which can hurt consumers in ways which extend beyond pure economic
loss. Sometimes vulnerable people can be persuaded into purchases
in order to get rid of the salesman, or find themselves trapped
in their homes in receipt of silent calls from firms engaged in
distance selling. These practices are illegal under consumer protection
law and the enforcement community and regulators have powers to
investigate, but they cannot re-instate the individual's sense
of security and well-being.
3. Are there any gaps in the current legal
and regulatory framework for UK business which need to be addressed,
and if so, how?
From the above evidence we can identify significant
regulatory gaps where vulnerable consumers can be adversely impacted
by poor business and sales practices. For example
— Housing—we have argued for much
stronger regulation of the private sector, including letting agents,
— Legal and Financial—although there
have been considerable regulatory developments across these sectors—but
it has not been a high enough political priority to make regulatory
change happen. An obvious example is the regulation of Bailiffs,
a matter that has been under discussion since and a review was
initiated in 1998, but with few discernable regulatory outcomes.
— Employment—We have seen much exploitation
of vulnerable workers (who have limited legal protection rights)
through unethical "rogue" business practices and have
called for the establishment of a Fair Employment Commission.
We have also argued for better regulation of some types of employment
agencies and labour providers (Eg gangmasters licensing).
— General consumer and essential services—the
key gaps are around the enforcement capacity of regulators and
the availability of redress rights.
Some of the above raises wider questions about
regulatory policy/design and business conduct. Much has been said
about the link between the causes of the current economic downturn
to regulatory failures in the financial services market, Citizens
Advice dies not have the expertise to comment on this directly,
but we believe that this link raises a key issue that should be
the starting point for any consideration about regulation and
its relationship too consumer/human rights. Namely that there
can be significant negative consequences resulting from regulatory
failure.
Finally, in respect of consumer rights, we have called
fort the introduction of a general duty to trade fairly in both
EU and domestic law.
4. Does the UK Government give adequate guidance
to UK businesses to allow them to understand and support the human
rights obligations of the UK? If not, who should provide this
guidance?
5. What role, if any, should be played by
individual Government departments or the National Human Rights
Institutions of the UK?
We shall answer questions 4 and 5 together.
Human rights institutions/NGOs, trade bodies, regulators and inspectorates
all have extremely important strategic roles in disseminating
good practice in respect of customer service and human rights.
In order to build human rights cultures into customer service
delivery practices, the job of giving adequate guidance should
not be the responsibility of one agency alone, but rather requires
a "co-regulation" approach.
This "co-regulation" approach is particularly
importance in the development
and dissemination of guidance and good practice
standards. The key questions are around how guidance gets implemented,
and secondly how relevant information that gets passed on to consumers.
In order UK businesses to understand and support human rights
obligations, human rights issues should be incorporated in EHRC
guidance on statutory equality duties and also in guidance provided
by inspectorates such as the Health and Safety Commission.
Guidance on good practice in customer service
standards should also have a strong consumer focus about the need
for clear communication between providers and consumers, including
explanations around contractual rights and responsibilities as
well as price. It is clear that there is a desire among consumers
for quality of service information about rights and market choice.
For example, our own research shows that substantial numbers of
people would make use of customer service information to help
them choose utility suppliers; this research found that if customers
could get clear and independent information about the quality
of customer service offered by utility companies, including information
about how they deal with customer calls, then many consumers would
make fundamentally different choices.
6. How should UK businesses take into account
the human rights impact of their activities (and are there any
examples of good or bad practice which the Committee should consider)?
How can a culture of respect for human rights in business be encouraged?
— Should UK businesses' responsibility
to respect human rights vary according to:
— Whether or not they are performing public
functions or providing services which have been contracted out
by public authorities; Is it clear when the Human Rights Act 1998 does
and does not apply directly to businesses?
— Whether they are operating inside or
outside the UK;
— the size, type or nature of their business?
— How, if at all, should the current economic
climate affect the relationship between business and human rights?
These questions appear to be at the heart of
this inquiry, whether Human Rights can be extended from the public
law to the private law field. We would argue strongly that the
basis of human rights liability should not just be whether business
is performing a "public function" or operating under
public sector procurement rules. But also where business may be
supplying "p but also whether business is supplying public
goods (such as utilities). In our view, this means going beyond
the public authority framework in the Human Rights Act.
Secondly, the question of extending human rights
into business obligations also raises the juridical issue of under
what circumstances should human rights "trump" contractual
or property obligations. In our view, there is a case for introducing
vulnerability criteria—informed by human rights standards—into
consumer protection and the regulation and mitigation of informed
choice in contract law. Obvious examples would include diminished
capacity or mental health issues.
Ensuring that business acknowledges human rights
as a basis for good customer services standards should be a key
priority for regulatory policy. There is of course, an inevitable
and obvious tension between ensuring good standards of business
practice across markets and the costs that this would entail for
business. We are conscious of the need for regulation to be proportionate
and not place any unnecessary burden on business, not least because
these costs tend to get passed on to consumers in one way or another.
However we believe that the "light touch" discourse
that prevailed in the recent past has tended to go too far in
prioritising concerns over regulatory costs.
EFFECTIVE ACCESS
TO REMEDIES
7. Does the existing legal, regulatory and
voluntary framework in the UK provide adequate opportunity to
seek an appropriate remedy for individuals who allege that their
human rights have been breached as a result of the activities
of UK businesses?
8. If changes are necessary, should these
include:
— Judicial remedies (If so, are legislative
changes necessary to create a cause of action, or to clarify that
a cause of action exists; or to enable claims to proceed efficiently
and in a manner that is fair to both claimants and respondents)
— Non-judicial remedies (for example, through
the operation of ombudsmen, complaints mechanisms, mediation or
other non-judicial means). If non-judicial remedies are appropriate,
are there any examples of good or bad practice which the Committee
should consider?
— Government initiatives, whether by legislation,
statutory or other guidance or changes in policy;
— Initiatives by business or other non-Government
actors.
We shall answer questions 7 and 8 together.
For many CAB clients making a complaint or seeking a remedy, this
will be the first time they have come into contact with the legal
redress system in any shape or form. They are not repeat players
and tend to approach the idea of pursuing a complaint with caution
and trepidation. Apprehension of officialdom and authority is
the norm, so it is vital that redress systems have a user focus
and high standards of fairness in decision-making.
ACCESS TO
JUSTICE, INFORMATION
AND ADVICE
In our experience, effective remedies can only
be made meaningful and realisable where consumers have appropriate
and effective channels of access to justice, information, advice
and advocacy, Better public information is important, as is widening
access to the advice sector, As Citizens Advice research on unmet
demand, and the civil justice surveys of the Legal Services Research
Centre amply demonstrate, there is considerable "unmet demand"
amongst the general population for information and advice relation
to rights,. Current capacity within the advice sector cannot meet
this demand. And the Human Rights Act project research showed
that where respondents had indicated that they felt their treatment
fell short if that identified HRA principles or customer service
factors, only 3% said that they had sought advice from a CAB,
and a further 3% that they had complained under the HRA.[463]
JUDICIAL REMEDIES
In the consumer field, it is extremely difficult
for those who have left out of pocket and feel humiliated as a
result scams and bad business practices to use the legal system
to gain redress. And in low value claims, under the small claims
procedure there is little support available in bringing forward
a case—and under existing codes Judges are now allowed to
lower the evidential bars to help claimants get their issues resolves.
One way to enhance access to justice is take forward proposals
mooted by the Civil Justice Council and others on developing a
"collective redress regime" in the UK.
The JCHR may want to consider what more could
be done to enhance private law redress rights. This issue is currently
being investigated by the Law Commission, and is particularly
important at the moment as the proposed Consumer Rights Directive
which will replace much of our existing domestic consumer protection
law whilst strengthening legal duties, does not contain the distinct
rights of private law redress currently available within the existing
consumer protection regime.
Finally, we also need to look at the legal aid
system. Expenditure on legal aid is concentrated on criminal cases
and defence rights; however, it is important to note that human
rights also cut across civil issues. It should therefore be a
matter of concern to the JCHR that civil legal aid us now increasingly
restricted in terms of scope, eligibility and supplier availability.'
For example, legal aid no longer funds consumer cases. This situation
needs to be rebalanced in order to achieve meaningful access to
justice.
NON-JUDICIAL
REMEDIES
In Citizens Advice's experience, non-judicial remedies
are often more appropriate in helping vulnerable consumers to
access their rights. Citizens Advice have therefore called for
the establishment if a general consumer Ombudsman post with enhanced
powers across key market sectors.
452 " JCHR-Sixth Report: The Work of the Committee
in 2007 and the State of Human Rights in the UK Back
453
Public Legal Education and Support (PLEAS) Taskforce Report,
Ministry of Justice 2007 Back
454
Discrimination on grounds of poverty, JRT briefing 2007 Back
455
Human Rights, Who needs them IPPR 2004 Back
456
A Private Affair-Private tenants: the forgotten victims of the
repossessions
crisis. Shelter and CAB joint briefing 2009 Back
457
The tenant's dilemma-warning: your home is at risk if you dare
complain. Seft9on CAB (2006) Back
458
CAB report on Letting Agents (forthcoming) Back
459
Unfinished business Housing associations' compliance with the
rent arrears pre-action protocol and use of Ground 8 Citizens
Advice (2008) Back
460
No Win, No Fee No Chance-CAB evidence on access to personal
injury compensation Citizens Advice (2004) Back
461
What the Doctor Ordered: CAB evidence on medical assessments
for incapacity and disability benefits, Citizens Advice (2006) Back
462
Why vulnerable workers and good employers need a 'fair employment
commission', Citizens Advice 2007 Back
463
Human Rights Insight Report. Ministry of Justice 2008 Back
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