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

Memorandum submitted by the CAB


  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.


  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


  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]


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

    — The care 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.


  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]


  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.


  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.


  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.


  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.


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.


  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]


  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.


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 

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

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2009
Prepared 16 December 2009