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

Memorandum submitted by the Equality and Human Rights Commission


  The Commission was established on 1 October 2007 under the Equality Act 2006. It promotes equality and human rights for all, works to eliminate discrimination, reduce inequality, protect human rights and build good relations, and to ensure that everyone is treated with dignity and respect and has a fair chance to participate in society.

  The new Commission brings together the work of the three previous equality commissions, the Commission for Racial Equality (CRE), the Disability Rights Commission (DRC) and the Equal Opportunities Commission (EOC). The Commission's remit now covers race, disability, gender, gender reassignment, age, sexual orientation, religion or belief and human rights.[536]

  In relation to human rights, the Commission has duties to promote and protect human rights, and encourage compliance with the Human Rights Act (HRA) and other human rights obligations under international treaties.[537] The Commission does not currently have the power to give legal assistance to individuals claiming a breach of the HRA unless there is also a claim of a breach of equality legislation. However, it can take judicial review proceedings in its own name in relation to alleged breaches of the Human Rights Act and it can intervene in proceedings domestically and in the European Court of Human Rights to provide independent submissions to the courts on claims relating to the HRA and European Convention of Human Rights.

  In addition, one of the Commission's key roles is to provide authoritative advice and guidance across its remit, including to business.

  The Commission welcomes the opportunity to provide evidence on the issue of business and human rights. The private sector is very important for the Commission's human rights and equalities agenda in a number of key respects: firstly in relation to the issue of the circumstances in which private bodies are carrying out public functions and therefore subject to human rights obligations under the HRA; secondly in relation to procurement as it is a key function covered by the Equality Duties; and thirdly in relation to the employment policies and practices of private bodies as employers which links to requirements on employers not to discriminate in employment.

  The Commission also welcomes the United Nations report proposing a framework for businesses and human rights which contain three core principles: the State duty to protect against human rights violations by businesses, corporate responsibility to respect human rights, and the need for individuals to have effective access to remedies for breaches of their human rights by businesses.[538] The Commission believes this is a useful conceptual basis for work relating to businesses, including transnational businesses. We note however that the focus of the Commission's work to date has been on the activities of businesses within the jurisdiction of Britain, not overseas given that the jurisdiction of the Commission is limited to Britain and the need to be strategic with our powers and resources.

  Our response addresses several questions asked by the Committee, in particular questions 3, 5, 6 and 7.


Question 3:  Are there any gaps in the current legal and regulatory framework for UK business which need to be addressed, and if so how?

  This question relates to the fundamental issue under section 6(3) of the HRA as to the circumstances in which a private body is considered to be carrying out public functions, and therefore, the extent of human rights protection for individuals in the UK. The question also links to question 7 in relation to effective access to remedies for breaches of human rights by UK businesses.

  The Commission has done a considerable amount of work on this issue with interventions in relevant human rights claims and policy work to influence changes in legislation. The Commission agrees generally with the conclusions of the JCHR's report on the meaning of a public authority under the HRA.[539] In particular the Commission has been concerned with the narrow interpretation by the courts on the issue and the need to address the issue comprehensively rather than merely on a case by case basis. This is of even greater significance given the increasing levels of procurement by public authorities and the potential gaps in human rights protection.

Private Care Homes

  The House of Lords in YL v Birmingham City Council [2007] UKHL considered the issue of the circumstances in which a private care homes will be considered to be carrying out public functions.

  The Commission believes that the majority took an overly narrow approach in distinguishing between the local authorities arranging of the care of person in private care homes (public function) and the actual provision of that care by private care homes (private function).[540] This Given the outcome of the judgment, the Commission subsequently undertook substantial work using its powers under section 11 of the Equality Act 2006 to call on and advise the government on introducing legislation to ensure that private care homes would be deemed to be carrying out public functions for the purposes of the HRA. The Commission welcomed the legislative amendment which became section 145 of the Health and Social Care Act 2008 to provide that private care homes providing care under public arrangement are deemed to be caring out public functions for the purposes of section 6 of the HRA.

  Although this amendment was very welcome, it falls short of bringing all publicly arranged care within the scope of the Human Rights Act. We would like to draw attention to three further categories of care that is publicly arranged or authorised which were omitted from the list of "relevant statutory provisions" under Section 145 of the 2008 Act:

    — Section 117 Mental Health Act 1983 places a duty on health and social services to provide aftercare services to certain patients who have been detained under the Act. Aftercare services must be provided free of charge and can include residential accommodation as part of the package—sometimes provided by the independent sector.

    — Sections 4A and 4B Mental Capacity Act 2005, together with relevant schedules, establish safeguards for people lacking mental capacity who are deprived of their liberty without their consent. Deprivation will only be lawful if it is formally authorised. Many people affected are self-funding residents in independent care homes.

    — NHS continuing healthcare is a package of long-term care funded by the NHS to meet someone's medical needs, which is often provided by an independent care home. The legal authority for this arrangement is found in NHS Directions, which are binding instructions issued by the Secretary of State using powers under primary legislation.

  The Health Bill, currently going through Parliament, presents a potential opportunity to amend Section 145 Health and Social Care Act 1998 to extend the meaning of "public function" under Section 6(3) (b) Human Rights Act to these types of care that are publicly arranged or authorised. The Commission will consider whether to support an amendment to include these areas as being public functions.

  In relation to all other persons that are in private care homes but not under public arrangement, the Commission recognises that such persons are not currently protected under the HRA. Our approach to that category of persons is to focus on the role of the regulator (the newly created Care Quality Commission) given that they have inspection responsibilities for all care homes. Under section 4(1)(d) of the Health and Social Care Act the CQC must have due regard in performing its functions to the need to protect the human rights of those using its health and social care services. The Commission has submitted to the CQC the importance of this provision in monitoring for all private care homes (and other health and social care providers) compliance with human rights obligations. The Commission will work with the CQC to develop this role.

Registered Social Landlords

  The Commission also recently intervened in the Court of Appeal claim relating to whether or not RSLs are carrying out public functions for the purposes of the HRA in the allocation management and termination of social housing.[541] This is an important issue for the Commission as social housing links to both issues under the article 8 right to private life and the right to housing under article 11(1) of the UN Convention on Economic Social and Cultural Rights. The Commission also submitted applications for anti-social behaviour orders and parenting orders by RSLs, and the operation of contracted out homelessness functions by local authorities should also all be considered to public functions for the purpose of the HRA.

  On 18 June 2009 the Court of Appeal held (by a 2 to 1 majority) that the RSL was exercising public functions in the allocation, management and termination of social housing.[542] This decision will have important implications for all RSLs with similar arrangements to the London and Quadrant Housing Trust, confirming the need for a "broad and generous" application of section 6(3) of the HRA. As a result RSLs will need to take a human rights approach to the provision of social housing, considering possible breaches of human rights particularly in the termination of social housing.

The need for a comprehensive solution

  The Commission agrees with the JCHR report from 2007 that case law on the issue is in itself unsatisfactory without a more comprehensive approach. The Commission is concerned that despite the government's commitment during the passage of the amendment to the Health and Social Care Bill to consulting the public on the effect of section 6(3) of the HRA generally, to date no such consultation has been produced.

  The Commission has considered this issue in the context of the submission to the government on the need for an Equality Guarantee in the Equality Bill in which we included in our draft clause a list of relevant factors in determining whether a private body was carrying out public functions.

  The Commission has also had sight of the Private Members Bill tabled by Andrew Dismore MP regarding the meaning of public functions under the HRA.[543] We agree that it would be better to have an interpretative statute regarding the effect of section 6 of the HRA rather than an amendment to the HRA itself which would have concerning constitutional implications. We also agree with Clause 1 of the Private Members Bill regarding the factors to be taken into account when determining whether functions are public. Such an interpretative statute would help to provide greater clarity for businesses and the general public as to the factors that need to be weighed up in assessing the facts in any particular situation.

The provisions in the Equality Duties

  The Commission has also been considering the implications of section 6(3)(b) of the HRA on the Gender and Disability General Equality Duties and the General Equality Duty proposed under Clauses 143 and 144 of the Equality Bill. The Equality Duties confirm that private bodies exercising public functions will be subject to the General Equality Duties and use a similar definition as under the HRA. Clause 144(5) states in particular that a public function is a function "that is a function of a public nature for the purposes of the Human Rights Act 1998".

  However the Commission is considering whether this provision should not be restricted to its meaning under the HRA and whether or not it should seek an amendment to the Bill. This is because the nature of the Equality Duty is different from the nature of section 6 of the HRA. The Equality Duty is intended to mainstream the promotion of equality in all the functions of public authorities whereas the HRA provides that public authorities and those exercising public functions must not breach human rights. In our view the approach under the General Equality Duty may need to reflect the broader aims of the duty.

Question 5:  What role, if any, should be played by individual Government departments or the National Human Rights Institutions of the UK (in providing guidance on their human rights obligations)?

  The Commission recognises that it has a vital role to play as a National Human Rights Institution to provide guidance on the effect of the Human Rights Act, including where private bodies may be exercising public functions and therefore have human rights obligations. This will be vital to ensure that all such organisations adopt a human rights based approach to their decision making, strategies and policies and practices.

  The Commission launched its report of its Human Rights Inquiry on 15 June 2009.[544] The inquiry had two main terms of reference:

    — to assess progress towards the effectiveness and enjoyment of a culture of respect for human rights in Great Britain;

    — to consider how the current human rights framework might best be developed and used to realise the vision of a society built on fairness and respect, confident in all aspects of its diversity.

  One of the key findings of the inquiry was the there was a need for accessible and relevant guidance and advice available about human rights. The Commission indicated in its report that has a vital leadership role regarding raising awareness of human rights and that will provide guidance (such as on its website) on human rights and the HRA. The Commission will consider as part of its human rights strategy following up the inquiry the best means by which the Commission could provide guidance relevant to private bodies that may or do exercises public functions such as private detention and deportation facilities, private care homes and Registered Social Landlords.


Question 6:  How should UK businesses take into account the human rights impact of their activities? How can a culture of respect for human rights in businesses be encouraged?

  There are three issues that the Commission wishes to highlight relating to encouraging businesses to respect human rights: firstly the role of procurement and an equality standard being used as a lever to promote equality in the context of the Equality Duties; secondly a requirement in the Equality Bill for large private bodies to report on the gender pay gap; and thirdly the proposal by the Commission that the government consult on introducing a human rights duty similar to the Equality Duties.

3.1  The role of procurement and an equality standard


  The Equality Bill proposes a new single Equality Duty on public authorities, which consolidates the three existing public duties on race, disability and gender and additionally covers age, sexual orientation, religion or belief, pregnancy and maternity and gender-reassignment. The Commission strongly supports the extension of the duty to the other grounds.

  Procurement is a key function of public authorities. Under the existing equality duties public authorities are required to have due regard to the need to eliminate discrimination, harassment, and promote equality of opportunity in carrying out all their functions, including procurement.

  The public sector spends over £175 billion per year on contracts with private sector organisations for goods, works and services. This is around one-third of total public expenditure and 13% of GDP. However, many public sector organisations have told us that they are not sure how to apply equality to procurement decisions—or whether they are even legally permitted to do so. For example, in 2005, only 40% of local authorities in England specifically addressed equality and diversity in their procurement strategies by using examples or targets.[545] This evidence reflects a lack of clarity in the Equality Duties as to how and when procurement can be used to advance equality. Non-statutory guidance on the use of procurement to advance equality has not been particularly effective.

  Under Clause 149 of the Equality Bill, the connection between the use of procurement and the new single Equality Duty is made more explicit. It contains a new power to impose specific duties on public authorities in relation to public procurement functions under the EU Public Sector Directive 2004/18/EC. The Commission supports this new power to impose specific duties relating to procurement. The Government Equalities Office (GEO) is currently consulting on the content of the specific duties on procurement.[546] Among other things, it is proposing that public authorities be required to:

    — set out how they will ensure that equality factors are considered as part of their public procurement activities when setting out their equality objectives;

    — consider the use of equality-related award criteria where they relate to the subject matter of the contract and are proportionate;

    — consider incorporating equality-related contract conditions where they relate to the performance of the contract and are proportionate.

  Business is broadly supportive of using public procurement to promote equality. For example, the CBI have stated that employers believe public procurement is a highly effective lever for increasing diversity and share the position of the National Employment Panel that there must be more systematic use of public purchasing power to achieve this aim. However, small business representatives have expressed concerns that the practice adversely affects small and medium-sized enterprises (SMEs).

  The Commission believes that a common and streamlined approach to equality in public procurement would provide greater clarity and actually help to reduce burdens on business, especially SMEs.

National equality standard

  In its response to the Discrimination Law Review, the Government announced that it would develop an equality "kite mark" for business which would allow companies to demonstrate that they are equal opportunity employers. The Commission is currently working with the Government to explore the feasibility of creating such a standard.

  It has been suggested that an equality standard could eventually be used to streamline the procurement process, for example by allowing accredited companies to bypass the Pre-qualification Questionnaire (PQQ) stage. Research has shown that existing standards tied to procurement are particularly popular with small businesses. However, in order to maximise its effectiveness, the new standard would have to be recognised by all public authorities. The GEO is currently consulting on the desirability of a new equality standard linked to procurement in its consultation on the specific duties under the Equality Bill.

3.2  Reporting on the gender pay gap

  Discrimination against women on grounds of pay in both the public and private sectors remains one of the key areas of the discrimination faced by women in society. This also an issue that relates to the right to work and non-discrimination in the enjoyment of that right under the UN Convention on Economic Social and Cultural Rights. The Commission submitted a detailed report to the UN Committee on Economic Social and Cultural Rights on the UK government's performance under the Convention in April 2009. The report highlighted the continuing significant pay gap for women particularly in the private sector, such as the finance industry. The Commission is also conducting a formal inquiry into the pay gap in the finance industry and what solutions are necessary.

  There is currently no obligation on the private sector to report equality and employment data, which makes monitoring progress towards equality goals very difficult. Often companies choose not to monitor equality issues in order to avoid perceived risks associated with the holding of such data. Where information is held, it may be unpublished or inaccessible.

  Under Clause 73 of the Equality Bill there is a new power to permitting the government to introduce regulations to require companies with 250 or more employees to publish information about the differences in pay between their male and female employees. The Commission supports this provision as an important tool to force businesses to eliminate pay inequalities. The Government's aim is for employers regularly to publish information on a voluntary basis. If sufficient progress on reporting has not been made over the next four years it will use the power from 2013. It has asked the Commission to develop a set of metrics for reporting on the gender pay gap, and over the summer of 2009 the Commission will be consulting with stakeholders—including business—on the most appropriate way to do this.

3.3  A human rights duty

  In the Human Rights Inquiry a number of witnesses recommended that there should be a new statutory duty to promote human rights similar to the Equality Duties to create an integrated approach to equality and human rights.[547] If such a duty was created and similar to the Equality Duties it could also provide for private bodies carrying out public functions to be subject to the duty and help to mainstream the consideration of human rights obligations by private bodies exercising public functions. The Commission recommended that the government should consult as to whether or not a statutory duty should be developed.


Question 7:  Does the existing legal regulatory and voluntary framework in the UK provide adequate opportunity to seek an appropriate remedy for individuals who allege breaches of human rights as a result of businesses?

  The existing framework under the Human Rights Act is that a person will only have a judicial remedy against a business where the business is exercising public functions. This has proved a complicated legal issue.

  The JCHR asks what changes may be needed regarding judicial and non-judicial remedies or mechanisms to achieve those remedies. Witnesses to the Human Rights Inquiry gave evidence of the lack of capacity in the advice giving sectors making it difficult to determine whether a human rights violation had occurred and regretted the fact that the Commission has no power to assist members of the public wishing to take claims based solely on human rights. The Commission has recommended in the report that the government should review its decision not to give the Commission the power to assist individuals in strategic cases. It also recommended that the Commission should be empowered to provide conciliation or mediation services.

June 2009

536   It is to be noted that in relation to human rights issues in Scotland, the Commission has jurisdiction over matters reserved to the Westminster Parliament. In relation to matters devolved to the Scottish Parliament the Scottish Human Rights Commission has jurisdiction although the two Commissions can co-operate and do consult each other on human rights issues in Scotland. Back

537   Section 9 of the Equality Act 2006. Back

538   Protect, Respect and Remedy: a Framework for Business and Human Rights, Special Representative of the Secretary General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie 7 April 2008, A/HRC/8/5 Back

539   "The meaning of a public authority under the Human Rights Act", JCHR, Ninth report of session 2006-07, 19 March 2007 Back

540   The Commission considers the approach of the minority preferable. For example Baroness Hale stated:
"….there is no doubt that the state has taken the responsibility of securing that the assessed community care needs of the people to whom section 21…applies are met…it is artificial and legalistic to draw a distinction between meeting those needs and the task of assessing and arranging them, when the State has assumed responsibility for seeing that both are done." (para 66) 

541   Weaver v London and Quadrant Housing Trust [2009] Back

542   The Court also held unanimously and confirmed that where RSLs are exercising powers relating to ASBOs, parenting orders and similar powers they would be considered to be exercising public function under the HRA. Back

543   Human Rights Act 1998 (Meaning of Public Function) Bill, 18 December 2007. Back


545   Department for Communities and Local Government, The National Procurement Strategy for Local Government Two Years On, August 2006. Back

546   See Government Equalities Office, Equality Bill: Making it work-Policy proposals for specific duties: A consultation, June 2009. Back

547   Human Rights Inquiry Report, Equality and Human Rights Commission, page 148. Back

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