Memorandum submitted by the Equality and
Human Rights Commission
1. INTRODUCTION
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.
2. THE DUTY
OF THE
STATE TO
PROTECT HUMAN
RIGHTS
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.
3. THE RESPONSIBILITY
OF BUSINESSES
TO RESPECT
HUMAN RIGHTS
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
Procurement
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.
4. EFFECTIVE
ACCESS TO
REMEDIES
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) Back
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
544
http://www.equalityhumanrights.com/fairer-britain/human-rights/human-rights-inquiry/. 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. http://www.equalityhumanrights.com/uploaded_files/hri_report.pdf Back
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