Examination of Witnesses (Questions 300
- 319)
TUESDAY 7 JULY 2009
MR ALAN
CHRISTIE, MR
PETER READING
AND MS
KAVITA CHETTY
Q300 Lord Dubs: This is where we
turn to Kavita Chetty and the Scottish Human Rights Commission.
You have told us that over and beyond the legal obligations under
the Human Rights Act and other instruments on business, business
should be encouraged to take a human rights approach in a wider
sense to its activities. What would this involve? Can you or the
Government do anything positive to support business to follow
your guidance and recommendations?
Ms Chetty: We believe in what
we call a rights-based approach to business, and that approach
would go beyond the due diligence recommendations that Professor
Ruggie made in his last Protect, Respect and Remedy Framework
to look at how business can more deeply embed a human rights approach.
This can give concrete expression to the notion of accountability
of business. It means that business must see human rights not
just as an end but also as a means of doing things, as part of
business processes. It means they need to take an approach which
first recognises the rights or rights-holders as the starting
point. They need to take an approach which then identifies where
the responsibility lies for the protection of certain rights and
an approach which looks to further the protection and realisation
of those rights through certain actions, all of this being underpinned
by some of the core rights-based principles of participation,
accountability, non-discrimination empowerment and the legal framework
of rights protection. We think that that approach has resonance
beyond the business sector. It is an approach where there are
many synergies and lessons to be learned from the public sector
experience. We are currently evaluating a project which saw the
integration of this rights-based approach into The State Hospital
of Carstairs in Scotland, to learn lessons about how this approach
can be applied and works in practice. We will also be working
with business to promote this rights-based approach. There are
many tools and guidance documents already in the public domain
which allow business to begin to engage with what a rights-based
approach might mean in practice. For example, the Danish Institute
compliance toolkit, the work of the Business Leaders Initiative
on Human Rights or the International Business Leaders Forum Guide
to Human Rights Impact Assessment. We believe that ourselves,
other actors and government can contribute to this promotion of
human rights in business, so we are encouraged to see action being
taken by the Foreign and Commonwealth Office and Department for
Business Enterprise and Regulatory Reform to produce a toolkit
on business and human rights, and government can play a role in
supporting these initiatives. We think that a multi-stakeholder
approach to developing the role of business and establishing guidance
for business can be the most appropriate way forward in building
a shared understanding of what a business's approach to human
rights should be.
Q301 Lord Dubs: At one point early
on in the answer you referred to a hospital example. I wonder
if you could elaborate on that example, please.
Ms Chetty: The State Hospital
of Carstairs in Scotland many years ago looked to change their
culture and the way that they approached human rights from being
a defensive approach and an approach which saw detainees come
in and relinquish their rights to then become one based on a human
rights based approach. Our Chair, Professor Alan Miller, assisted
in that process of integrating human rights into the culture at
the hospital. Now, many years down the line, the Commission wants
to go back and assess that project and learn lessons from that
project, both good and bad, and hope to use that as an example
to promote human rights based approach throughout the public sector
in Scotland.
Q302 John Austin: This is a question
for the EHRC. Government developments have differing objectives,
different priorities. In your experience does the Government have
a joined-up strategy in relation to its work with business on
human rights issue?
Mr Christie: A tricky question.
Q303 John Austin: The question is
easy. It is the answer that is tricky.
Mr Christie: Yes, the answer is
the tricky one. I need to be careful, I am being recorded! I think
we should all be modest enough to admit that we can do better,
that often there are inconsistencies or even divergences in approach.
I have to say I think in our experience there is increasingly
an effort of will to try to find comprehensive joined-up approaches
to these issues. It is a work in progress. I am sure we could
find lots of examples where the commonality of thinking has not
been good enough but I would want to give credit to colleagues
across government. I think there is evidence that they have taken
these issues much more seriously than was the case in the past
and that there is an effort being made to try to find synergies
and commonalities in working together effectively.
Q304 John Austin: Do you think it
would be unfair to suggest that the Government might drop its
positive measures at the first sign of resistance from the CBI?
Mr Christie: Let me give you the
example of the Equalities Bill which is very large in our world
at the moment. I think it is fair to say that there were a number
of ideas that we wanted to see explored in that bill that many
others wanted to see explored in that bill that have not seen
the light of day in the face of concerns being expressed by a
variety of lobbies, including business lobbies. I do not think
it is for us to judge how resistant the Government was to lobbying
from any particular quarter, but there is certainly a hesitation
and a reluctance to take on strong opinion on this issue.
Q305 John Austin: We have heard from
Ms Chetty earlier. Would you say from the Scottish experience
that the Scottish Government has taken a more joined-up approach?
Ms Chetty: Any strategy in this
area is clearly in the early stages, but our experience in Scotland
has been that there is an openness by government to engage in
this area. As I said, it fits with priorities in Scotland of attracting
inward investment and the expansion of Scottish business. I believe
the Chair of our Commission has had at least one meeting with
a senior Scottish minister to discuss issues around the importance
of human rights around trade and investment.
Q306 Earl of Onslow: First of all,
I must apologise for being late. I got very badly held up in traffic.
We have seen on this issue that people are saying there is this
lack of joined-up thinking. You said you thought possibly there
was. It is really examples which one would like to know. Both
these bits of paper are riddled with allegations but I would really
like an example—
Mr Christie: Of where we are joined
up?
Q307 Earl of Onslow: Of what is joined
up, yes. It is much easier to deal with if you know what you are
talking about and I certainly do not at this stage.
Mr Christie: Let me give an example
of public procurement which for many years has been seen as an
area in which the use of public resources could be used to leverage
significant improvements in the delivery of social priorities,
reducing employment gaps, improving working conditions and so
on and so forth by setting standards of behaviour and performance
for private companies hoping to gain public sector contracts.
There has been a feeling that there was a lot of unrealised potential
there, that somehow the application of the idea was not rigorous
enough, that we were not really nailing the steps that we could
take to make a difference. I think there is visible change in
that area. I think the quality and the focus of the guidance coming
from, for example, the Office of Government Commerce has taken
much more on board those social policy concerns and clearly issues
that deal with equality of human rights. That is not to say there
still is not a long way to go, and one of the commitment and one
of the things that I think is emerging through the debate on this
issue within the context of the Equality Bill is an expectation,
indeed a requirement, that ourselves, the Government Equalities
Office and the Office of Government Commerce are joined at the
hip and coming up with clear guidance that will help everybody
on both sides of the equation to better understand not only what
it is that we are trying to achieve but how the Government expects
and will support the achievement of those objectives.
Chairman: One brief question and then
we need to move on.
Q308 Earl of Onslow: You say that
you think government procurement policy should be used to improve
employment conditions, is that right?
Mr Christie: Yes.
Earl of Onslow: Thank you.
Q309 John Austin: If the Equalities
Bill goes through, there is going to be a specific requirement
in this field. This Committee in its earlier reports criticised
the ODPM for the confusing nature of the public procurement policy.
Clearly there is an agreement between us and you that there needs
to be clear guidance, but should this guidance be coming from
the Government or is the EHRC in a position to provide this?
Mr Christie: I think there is
a role for both. There is provision on the face of the bill that
is before Parliament at the moment that there will be a procurement
requirement and an equalities requirement in the public duty.
The specific duty that will flow from that and the regulations
that would flow from that from ministers of course has yet to
be specified. We will be working with others, I am sure, to make
sure that that would meet the need. Whatever is agreed in the
bill, we have a statutory responsibility to provide guidance and
we will do that. We also acknowledge that if you are a procurement
officer working for a public authority, of which there are 44,
000, the Equality and Human Rights Commission is not going necessarily
the first number you call if you are faced with a problem. You
are much more likely to go to the Office of Government and Commerce
or some other central government department than to us. We certainly
have a role to play and we will play that role. We will make sure
that we consult extensively and we construct guidance that is
appropriate and, to use that horrible phrase, fit for purpose
and delivers on the expectations, but to make that truly successful,
we need to do that work in very close co-operation with those
central government departments, in this case particularly OGC,
because that would add enormously to the weight and to the efficacy
of whatever guidance we were going to publish.
Q310 Lord Dubs: This is for the Scottish
Human Rights Commission again. You have suggested that some changes
in company law might be made to minimise the harmful impact of
businesses on human rights, including by changing enlightened
shareholder value. Could you expand on that, please?
Ms Chetty: We mentioned in our
written evidence that the Companies Act takes an enlightened shareholder
value approach, placing an obligation on directors to have regard
to social and environmental factors. It is clear that the duty
there is owed to the company itself rather than to society at
large and there is also nothing regarding the duties of employees.
It is understood that there is a potential for a more progressive
approach to be taken in the future where the company owes broader
obligations to society. As a Commission it is not one of our focus
areas and we are probably not at the stage of giving any further
consideration to how those changes could be implemented.
Q311 Lord Dubs: Nonetheless, you
have raised it as an issue and we all know the Government was
resistant to amendments to expand the provision for social and
community impacts in the Companies Act 2006. Do you think there
is any political will to make changes to company law so soon after
the previous Act was passed?
Ms Chetty: Probably not, but as
a Commission we would hope that you would push for that progressive
change.
Q312 Chairman: Can we really recommend
that businesses should be required to conduct human rights impact
assessments when public bodies do not? Can we have two approaches
for businesses and public bodies?
Mr Christie: We think impact assessments
are useful tools that ought to be used much more extensively than
they are. There is a certain cynicism almost, because our experience
tell us that the use of impact assessments tends to be less than
consistent, less than universal, and often there is what one would
describe as a tick-box approach to the exercise. What we need,
what we would advocate very strongly, are very effective comprehensive
impact assessments used much more extensively than they are currently.
We would support and we would argue for that. How we get to from
where we are to where we want to be and whether the inclusion
of specific human rights impact assessment should settle alongside
an equality impact assessment or whether we find a way of broadening
what currently exists to be more all-encompassing I think are
questions open for discussion. Effective impact assessments we
are absolutely in favour of. How we make them effective is the
challenge, I believe.
Q313 Lord Dubs: There is an onus
on businesses, in your view, to do that, but public bodies do
not have to do it. The general argument for impact assessments
is clear, but should there be a distinction between businesses
and public bodies?
Mr Christie: I think it would
be our view that it is not realistic to expect the private sector
to do something in this area that the public sector is not required
to do.
Q314 Lord Dubs: Following on from
that, can you tell us why a general duty to conduct a human rights
impact assessment would not place an onerous burden on either
a business or a public authority? Are there any lessons to be
learned from the equality duty?
Mr Reading: We have had a look
at some of the work that is being done by other organisations
and I think a good example is the pilot project by the Department
of Health in the VIHR which has looked at how you can embed human
rights considerations into the processes of public authorities,
including issues such as impact assessments. We do not see it
as something that is going to be particularly onerous because
you would undergo the same processes that would be required in
relation to the equality duties. We think that it would be good
practice for such organisations, including where private bodies
are carrying out public functions, for them to do so. We do not
suggest that all private bodies would be required to conduct such
assessments; it would be private bodies carrying out public functions.
Just on that point, we have said that the Government should consult
on introducing a human rights duty. We believe that that is important
because we do think it is important to take on board the views
of businesses and other sectors to consider these issues in more
detail, because it would be an important step.
Q315 Chairman: Would you like to
say anything from the Scottish perspective?
Ms Chetty: Yes. We would promote
a joined-up approach to both equality and human rights impact
assessments in both the public and the private sector. We are
exploring this issue further with public authorities who are already
taking a joined-up approach to equality and human rights in piloting
their impact assessments. We are contributing to the consultation
of the Scottish Government on the implementation of the specific
duties under the Equality Bill and there we would also hope to
promote an approach which looks at equality and human rights impact
assessments in a joined-up coherent, comprehensive framework.
We would also support Professor Ruggie's recommendation that all
businesses in all sectors can carry out human rights impact assessments.
Q316 Lord Bowness: A question for
the EHRC, if I may: your remit allows you to support strategic
equality cases. In your evidence you have said that you think
the remit should be broadened to allow you to support more individuals
to take cases under the Human Rights Act and that you should be
able to support conciliation and mediation services. How do you
see those extended powers helping individuals who wish to allege
that practices in the private sector are having a negative impact
on their human rights?
Mr Reading: The first point is
that we have recommended that the Government should consult on
extending our powers in those respects.
Q317 Lord Bowness: Forgive me interrupting
you, but you may have recommended that the Government consult
but presumably you are in favour of it.
Mr Reading: I think we are in
favour of the need for these issues to be discussed. The evidence
that we had was that most organisations that considered this issue
in our evidence were supportive of it and I think our view is
that we would be supportive of it, but we do think it is important
that we have an opportunity to discuss these issues in more detail.
In terms of why we think it would be important, the problem at
the moment in relation to interventions is that often we do not
know about these cases until we hear about them through various
sources, so we do not have the same opportunity to be as strategic
as we would like to be. We would have that opportunity if we could
support individuals in terms of human rights cases. A good example
may be this detention case that we became aware about. If the
individuals had had an opportunity to come to us, then it may
have been a different result in this case. Strategic litigation
is the key benefit. Interventions do not provide the same focus.
Q318 Lord Lester of Herne Hill: Could
I challenge you on this. The Commission is overwhelmed with various
powers, functions, duties and has a limited budget. When the Equality
Bill was going through, I successfully persuaded the Government,
as you probably know, that you should be allowed to bring judicial
review proceedings in human rights cases against public bodies.
That enables you to deal with any case where individuals or groups
or anyone else comes and says in relation to detention or any
other aspect, "Here is a practice rule or procedure which
is contrary to the European Human Rights Convention" and
you can then seek judicial review. If you start to suggest that
we must be able also to deal with all individual complaints of
human rights violations, that is the very thing which the Government,
with my support, ruled out because they were worried that you
would be completely overwhelmed. You have to deal with all the
quality cases, which of course are cases where you assist individual
proceedings. If you then had to deal with the whole mandate of
the human rights catalogue of rights, you would be completely
overwhelmed and your cutting edge would be seriously blunted.
I know you say you asked the Government to consult, but your own
view is what really counts and it seems to me that working within
the Commission you would be well advised not to pursue the idea
that you would have the power to pursue every individual case,
if that is what you are saying, whether against a government body,
a public body or a private body. I really think that is not a
sensible thing to be putting forward.
Mr Reading: Perhaps I could explain
in a bit more detail. We would not be considering a proposal that
we support all human rights actions in terms of individuals. We
would very much take the same approach as we have on equalities
issues, which is to consider what are the strategic issues and
whether or not we should provide support to the individual. We
do think there potentially is an issue about access to justice
here, because the sources for which persons can obtain justice
in relation to human rights cases is in our view diminishing.
Q319 Lord Lester of Herne Hill: I
am talking about legal aid.
Mr Reading: Yes.
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