Examination of Witnesses (Questions 284
- 299)
TUESDAY 7 JULY 2009
MR ALAN
CHRISTIE, MR
PETER READING
AND MS
KAVITA CHETTY
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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