Letter to the Chair of the Committee from
Baroness Andrews OBE, Parliamentary Under Secretary of State,
Department for Communities and Local Government, dated 23 March
2009
LOCAL DEMOCRACY, ECONOMIC DEVELOPMENT AND
CONSTRUCTION BILL
Thank you for your letter of 10 February
2009 in relation to the above Bill. I am extremely sorry
for the delay in responding.
You asked about the equality and human rights
duties placed upon local authorities. This is in the context of
your Committee's suggestion that there should be "an express
positive duty on public authorities to promote respect for human
rights, where the European Convention on Human Rights imposes
a positive obligation on the State".
A positive obligation under human rights law
denotes an obligation on the State to take positive steps actively
to protect human rights; these steps may include the creation
of legal or institutional structures, for example, or the allocation
of resources. By way of a specific example, the European Court
of Human Rights has held that States are under a positive obligation
under Article 2 (the right to life) to put in place and enforce
criminal law to deter the commission of offences against the person.
Similarly, the Court has found that States are under a duty under
Article 6 (the right to a fair trial) to provide free legal
assistance in criminal trials to impecunious people.
By virtue of section 6 of the Human Rights
Act, it is unlawful for a public authority to act in a way which
is incompatible with a Convention right. Section 6(6) clarifies
that "an act" includes a failure to act. Therefore,
where the Convention rights incorporate the imposition of a positive
obligation upon the United Kingdom, that positive obligation is
also placed upon public authorities that are subject to the Act.
Any further provision making reference to specific positive obligations
under the Convention would therefore be otiose.
Positive obligations should not however be confused
with the idea of a general obligation upon public authorities
to promote respect for the Convention rights, which your Committee
has also previously advocated. However, as the Government has
previously explained, it is of course only public authorities
themselves that have an obligation under the Human Rights Act
to respect the Convention rights. Such a general obligation could
therefore only require public authorities to promote respect for
the Convention rights to other public authorities. In any case,
it would seem unlikely that such a general duty would be within
the scope of the Local Democracy, Economic Development and Construction
Bill.
This proposal for a general duty to promote
respect for the Convention rights can of course be distinguished
from the duties already contained in the Bill to promote democracy.
These aim to make citizens more aware of the democratic process,
enabling them to understand better who makes decisions about their
local services, how to influence and take part in making those
decisions, and how to stand for or seek appointment to civic roles
such as councillor, school governor and magistrate. Although the
duties are placed on local authorities, their policy aim is to
increase awareness amongst citizens, not among public authorities
themselves.
Since the passage of the Human Rights Act in
1998, the Government's aim has been to encourage a culture in
public authorities in which fundamental human rights principles
are seen as integral to the design and delivery of policy, legislation
and public services. Following the Review of the Implementation
of the Human Rights Act completed in July 2006 by the former
Department for Constitutional Affairs (DCA), the Ministry of Justice—the
successor to the DCA—has led a programme of work to implement
the recommendations of the Review.
The Ministry of Justice produced generic guidance
for public authorities, which they encouraged public authorities
to adopt and adapt to suit their own requirements. As of March
2009, over 115,000 copies have been distributed of the suite
of guidance, which comprises the handbook Human Rights: Human
Lives and the summary booklet and DVD Making Sense of Human
Rights; these have been distributed within central Government,
to departments' sponsored bodies, and to other public sector organisations.
This guidance discusses all the obligations, including positive
obligations, that arise from the Convention rights.
One local authority that has taken particularly
proactive steps in relation to its human rights obligations is
the London Borough of Southwark. It has integrated human rights
into its decision-making process as part of the Equality Impact
Assessment. It has established an Equalities and Human Rights
Scheme, and has identified a lead Member to champion equalities
and human rights, currently Councillor Adele Morris, the executive
member for communities, equalities and citizenship.
The Council's starting point was to audit two
key service areas (housing and social services, as they were then
called) to see if their policies and procedures were compliant
with human rights.
The Council also identified training needs and
commissioned the services of the British Institute of Human Rights
(BIHR) as their training provider. The training was piloted in
their social services and housing departments before developing
a rolling programme of training. Over 600 staff and some
councillors have received the training. The Council has now added
an action planning section to the training, which assists staff
to think about how they can embed human rights approaches into
the way that they work and provide services. Feedback from the
training is very positive and staff have continued their development
through the application of a human rights framework to their day-to-day
activities.
The Council has an ongoing partnership arrangement
with the BIHR, building on the training they have provided, to
promote best practice within Southwark and other organisations.
For example, their local Primary Care Trust is taking part in
the Department of Health project "Human rights in health
care: a framework for local action". Risk assessment processes
have also been improved within the Council so that staff take
into account human rights considerations when implementing new
legislation, policies, practices and procedures.
I note in conclusion that you copied your letter
to Trevor Phillips, Chair of the Equality and Human Rights Commission
(EHRC). It is of course part of the duties of the EHRC, as set
out in section 9(1) of the Equality Act 2006, that they should
encourage public authorities to comply with section 6 of
the Human Rights Act 1998. As noted above, this would include
promoting compliance with the positive obligations that arise
from the Convention rights.
I am copying this letter to Trevor Philips.
| 
