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

Examination of Witnesses (Questions 300 - 319)



  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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