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

Examination of Witnesses (Questions 284 - 299)



  Q284  Chairman: Thank you very much indeed for attending this afternoon. I would like to welcome Alan Christie, Peter Reading and Kavita Chetty. Before we start on the questions, is there anything you would like to say by way of introduction?

  Mr Christie: I do not think so. You have seen our submission. You know essentially what our views are. We would be more than happy to at least try to answer the questions that you have for us.

  Q285  Chairman: Is there anything you want to say?

  Ms Chetty: No, thank you. You have seen our submission. I have a bit of background about the Scottish Human Rights Commission and how business and human rights fit within our mandate, but I am sure I will be able to do that during the course of questioning.

  Q286  Chairman: We have read your submissions with interest. It seems to me that you have a slightly different approach to this inquiry. The Scottish Human Rights Commission is involved at an international level working on how national human rights institutions can contribute to the debate, but the Equality and Human Rights Commission considers that its mandate and resources limit the role it can play in looking at the work of UK companies outside the UK. What can you do and have you done with your existing mandates?

  Mr Christie: In general, we can certainly intervene in cases where we believe that to be appropriate. We will offer advice when it is asked for and sometimes when it is not asked for. We are not able to take individual cases in human rights issues, as I am sure you know, nor do we have the power to mediate in human rights issues. We do need to consider that a mandate is GB specific. That is not to say we are not involved in working internationally. We just recently, as indeed did our colleagues in Scotland, gave evidence to the UN Economic and Social Committee in Geneva, so we do engage and we certainly seek to be informed by international experiences, but, given the limitations of our resources and the breadth and the scope of our mandate, our priority is certainly very much focused internally in GB.

  Q287  Chairman: Is there anything you want to add?

  Mr Reading: I was going to give you a few practical examples of work we have done in this area. Our approach has really been multi-faceted. It is partly litigation strategy, partly policy work. The Human Rights inquiry has been important in this process. On our work around procurement and reporting of companies in relation to equalities issues and also enforcement action, just very briefly, to summarise, in terms of litigation in the aftermath of the YL decision, we undertook substantial work with the Government to secure an amendment to the Health and Social Care Bill which proved to be successful and we were very happy with. We have also recently intervened in the Weaver Court of Appeal decision which relates to housing associations and their coverage under the HRA. We understand that is likely to be appealed to the House of Lords and we would also seek to intervene. In that decision, we were very happy with the outcome, which was 2:1, in relation to the allocation, distribution and termination of social housing. That particular housing authority was covered by the HRA in terms of obligations. In terms of the HR inquiry there are a couple of very important outcomes, the most important of which I think links to this particular inquiry, and it is the need for guidance in terms of businesses being able to understand the circumstances in which they may be subject to the HRA in particular, but also, generally, why they should abide by the HRA in their work. There have been a number of recommendations which we have made which link to that. The need for a human rights duty. We have recommended that the Government consult on that, something similar to the equality duty. The need for the Commission, as Alan said, to have the power to represent individuals on human rights claims. And, also, the need for us to have the power to mediate in relation to human rights issues. Alan is going to talk more about procurement and equality issues and so on as we go through, because I am sure there will be questions. I have one final point on enforcement which is not in our written submission and is very important in relation to this inquiry. We are conducting a formal investigation into the poultry and meat processing industry. It is looking at the conditions of employment for migrant workers in that industry because we have indications that there are serious concerns in relation to employment conditions which also relate directly to issues of exploitation and potential human rights abuses. We are currently in the process of undertaking that inquiry.

  Q288  Chairman: And from your perspective?

  Ms Chetty: I will set out for you briefly how we would see business and human rights fitting within our mandate as the National Human Rights Institution for Scotland. By way of background, we were set up by statute in 2006 and we have been operational since December of last year. We have a duty to promote awareness, understanding and respect for human rights and, in particular, to encourage best practice. We fulfil this duty through education, training, awareness raising and research, as well as recommending changes to Scottish law policy practice as our work demands. Between December of last year and April of this year, the Commission held a national consultation on its strategic plan which is scheduled to go before the Scottish Parliament later this week. During that consultation we had feedback from business representatives and from Government who were keen for our support to implement the human rights based approach to the issue of business and human rights, and we identified a few key areas of focus within our strategic plan and operational plan which relate to the role of business in the field of human rights. I will run through those now. Firstly, we intend to look carefully at the issue of procurement. We have outlined in our operational plan our proposal to hold human rights interaction on the possibility that we may hold an inquiry into the issue of procurement. This means really that we intend to bring together all those with a stake in the issue of the procurement of public services, from the individuals affected to practitioners, policymakers, independent experts and others, to develop a shared understanding of the problem, the solution and responsibilities of each of those actors in this area. In this round table discussion we hope to explore the possibility and need for a future inquiry into this issue. Another area which touches upon the private sector is our dignity in care project. This is a key project area for the Commission in the coming months which looks to increase the ability and accountability of duty bearers in this area to fulfil rights. Part of this project will entail working directly with care providers, both in the public sector and in the private sector, to pilot a rights-based approach to the delivery of services I believe a preliminary meeting has already been had with the Scottish Care Association, which is an umbrella organisation for private care providers. We also intend to work directly with the private sector where appropriate. The chair of our Commission has already had discussions with representatives of both the Scottish Development International and the Scottish Enterprise to explore ways in which we might reach out to business and promote a rights-based approach. Finally at an international level we hope to work closely with other NHRIs around the world to develop a common international strategy in this area. In particular we represent the European group of national human rights institutions on two of the international co-ordinating committee steering groups, both of which are related to this area in human rights and business and human rights and climate change. The first meeting of the European NHRIs on this issue will be hosted by the Danish Institute, I believe next month. It is anticipated that a strategy and programme of work will be discussed there and we hope that this group will be an important platform for us ensuring our learning and our experiences.

  Q289  Chairman: This is a question for both organisations. Do you think your mandates are broad enough for you to engage with these issues?

  Mr Christie: The temptation is always to say of course we want an even broader mandate, but I think the truth of the matter is we are only somewhat less than two years old and still finding our way around the mandate that we have. We have found that we have a reasonable degree of flexibility and capacity, but as I tried to indicate earlier, we have specific areas where we come up short, where in order to deliver the breadth of service that we think needs to be delivered in, for example, our ability to support individual cases or to mediate, that we are sure and that that would be a valuable extension of the existing mandate.

  Ms Chetty: Yes, we do. While our powers specifically apply to Scottish public authorities, our general duty we believe provides us with a basis to work with Scottish companies operating at home and abroad in host states, as well as with the Scottish Government, to support them to comply with their duty to protect rights. We believe we play a crucial role as an NHRI in the promotion and monitoring in this area, and our mandate is broad enough to fully engage with these issues.

  Q290  Lord Bowness: We are told that the Danish Institute works with the Scottish Human Rights Commission on the International Co-ordinating Committee Working Group on Business and Human Rights and that they are very advanced in this area of work, both working directly with businesses on their human rights impacts, providing tools and consultancy services and advice for a fee. Perhaps I could ask both organisations for their view about that approach.

  Ms Chetty: The Danish Institute is in a fairly unique position of being an NHRI with a business human rights consultancy arm and they have contributed, as you say, greatly to the development of tools for large multinational business in particular. Where the Scottish Human Rights Commission sits differs, but we do believe that we are likely to engage directly with business where it fits within our broader work of the promotional rights-based approach or in relation to our identifying strategic priorities. Early indications are that there is a positive opportunity to integrate human rights into the business environment in Scotland, as it is seen to attract inward investment, the retention of a dedicated and skilled workforce, and it fits as well with the expansion of Scottish businesses into new markets. The core industries in Scotland of oil and gas, as well as the financial services sector, have a particular international focus and impact to be considered. We have already had, as I have said, some discussions with SDI and Scottish Enterprise to explore how we might work with them in promoting a human rights based approach. As I say, we also work with business where it fits within our other strategic priorities; for example, through our dignity in care project, and working directly with private care providers. While our approach varies from that with the Danish Institute, we hope to be working in close collaboration with them and to learn from them, for example, through the ICC working group.

  Mr Reading: I think their approach is admirable, having read their submission. Our approach I think has been two-fold, which links to their approach. First, we have been looking at how we can use equalities frameworks to apply human rights principles to businesses, whether it is through procurement, whether it is through the requirement on large companies to have indications of gender pay gaps, kite marks for businesses in relation to equality which could be expanded to human rights, but one aspect which I think we are doing which is similar to what they are doing is the development of equality and human rights indicators, which we are required to do under the Equality Act. As part of the State of the Nation report that we are going to be producing next year, that will include reference to an assessment of where public and private bodies are at in relation to those equality and human rights indictors.

  Q291  Lord Bowness: Do you think that your mandate extends to working as the Danes do, particularly providing consultancy services in return for a fee? Even if they do not, would it be appropriate in the UK?

  Mr Christie: I would be very surprised if we ever were allowed to go in that direction, never mind if we wanted to go in that direction. Clearly we have an advisory role but we also are very conscious of our regulatory role, and I think if we were to find ourselves as a commercial organisation the credibility of that regulatory role would be seriously undermined. I do not really think that is the direction we would aspire to go in.

  Q292  Lord Bowness: Is that the Scottish view as well?

  Ms Chetty: I would echo that. I think it is something that we have yet to consider and address.

  Q293  Lord Lester of Herne Hill: I should declare an interest, because I have appeared before the HRC in third party interventions but not in anything to do with this case. I should just say in relation to the last question—and Mr Christie may not know this—that I have advised in the past that it would be unlawful for the old Equality Commission to start accepting fees and putting themselves in a conflict situation with their law enforcement function Both organisations today have given very clear written evidence about the YL problem being a problem of the extent to which the Human Rights Act applies to bodies performing functions of a public nature. Both organisations have said that they fully agree with this Committee about the need to have a proper solution to that problem and the Ministry of Justice has suggested that the problem can be exaggerated. Could I ask you whether you think that this is a minor problem or a more serious problem?

  Mr Reading: From our perspective I think we consider this to be a very serious problem. The case law has demonstrated that it is a very complex area and that case law is not going to solve this issue. We were very surprised by the Government's written evidence on this point because the Government has agreed with us in the past that there was a need to consider the wider issue of the definition and that it would be done so by public consultation. In fact, when the amendment to the Health and Social Care Bill was being considered, they agreed that the wider issue would be considered by consultation. We have not received any such notification that there will be a consultation. There was going to be, they said, in the context of the Bill of Rights Green Paper, but there was nothing on it in there and so we are concerned that the Government has not fulfilled its commitment to consult on the wider issue.

  Q294  Lord Lester of Herne Hill: They have in answer to one of my questions said that they do still intend to consult but they do not say when. There is a commitment still to that.

  Mr Reading: Yes.

  Q295  Lord Lester of Herne Hill: Can you give some examples of why it is not just a trivial problem, other than, say, housing or detention? Do you have any further material you can give us?

  Mr Reading: In relation to work on the Human Rights Inquiry we interviewed the voluntary sector in terms of its understanding of human rights issues and we had clear evidence from the POPPY Project, for example, that they are not sure of situations in which they may have human rights obligations in terms of their housing and care of trafficked persons, for example. There is a reference to it in our final report. I think one big area that remains uncertain is the voluntary sector.

  Ms Chetty: I believe that the anecdotal evidence during consultation suggests that this is an area of concern where there is uncertainty in practice, if not legally, about this question of whether this is settled in a legal sense or that it is an area of marginal uncertainty. The key areas that we have picked up on would be other vulnerable groups, such as detainees in the broadest sense and those detained under the mental health legislation. We are currently commencing our mapping projects to identify gaps as well as good practice in Scotland, to then provide the evidence base for a national action plan for human rights in Scotland, and I believe that may assist us in identifying the gaps and loopholes of protection in this area.

  Q296  Lord Lester of Herne Hill: When Andrew Dismore introduced his private Member's bill on this last week, Bridget Prentice, the Justice Minister, was hostile to it in her reply, and of course it did not get anywhere. It was the bill essentially from this Committee. The Government have suggested that legislative change is unlikely to help. I myself do not understand that answer but perhaps you can give your own views about it, because the original intention was made clear by Lord Bingham and Baroness Hale in their judgments in YL. I do not understand, but maybe you can help me, why putting the situation back to where we thought it was in 1998 by means of a legislative amendment would not be a good idea. Could you try to explain what you think of the Government's notion that legislative change is not likely to help?

  Mr Reading: We think that legislative change would help in a number of ways. It would help in terms of clarifying the factors that are relevant to take into account. We do not see it as a silver bullet because obviously those factors must be applied to the particular facts of the case. We saw the proposal of the JCHR in relation to the Bill of Rights on this issue, that you could, for example, have a piece of legislation which provided guidance in terms of interpreting section 6(3) of the Human Rights Act. Our view, as we have said in our evidence, is that that would be a preferable approach, as to any amendment to the HRA, given concerns with constitutional issues and not wanting to make changes to the HRA unless they are absolutely necessary. We think that would help, but there would be further work that would be needed to be done in particular guidance, and I think that that would need to supplement any further legislation.

  Q297  Lord Lester of Herne Hill: What would be wrong with a simple amendment to the Human Rights Act to put it back to where we thought it was originally when it was passed? What is the problem about doing that?

  Mr Reading: From our perspective it is a concern at amending the HRA in general. That is something that we are thinking about I the context of the work on the Bill of Rights as well. We are concerned with indications from the Conservative party that if they came into power they would, for example, repeal the HRA. That is where our concerns are coming from with an amendment directly to the HRA. For example, the Health and Social Care Bill, it being a deeming provision on the effect of the HRA, we thought was helpful, as opposed to a direct amendment.

  Q298  Mr Sharma: You are thinking about producing guidance on the 1998 Act for the private sector, particularly focusing on private bodies who might be covered by the Act. Have you liaised with the Government on whether this is your job or theirs?

  Mr Christie: I think it is everybody's job. I can certainly see a role for the Commission in providing guidance. That is clearly one of the functions that we were established to fulfil, and a function that we are very happy to undertake. Equally, though, I think there is a role and responsibility of the Government to be engaged in that process. This should be something that all parties are involved in. I think it would be a mistake simply to say, "That is your responsibility and push it off to one side." We much prefer an engaging process that would demonstrate also to those who were subject to the advice and guidance that it is fully understood across the spectrum, as it were, because this was something that was important.

  Q299  Mr Sharma: I am sure you are aware that the Government is conducting a survey to consider whether business want this kind of guidance. Do you have any evidence that this guidance is wanted by the business community?

  Mr Christie: No. It is a short, one-word answer, in effect. We talk to business and business representative organisations regularly and constantly, and I have to say that there is no evidence that we have seen of a particular demand to focus in on specific human rights issues from within the business community. There are human rights issues that are important to the business community but they do not categorise them in that way, so the idea that there was an expectation for a suite of guidance and guidelines characterised as human rights and business or human rights issues for business I think would be a stretch from where we are, where the business community is thinking about these issues.

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