Legislative Scrutiny: Children, Schools and Families Bill; other Bills - Human Rights Joint Committee Contents


Memorandum submitted by the Equality and Human Rights Commission

Legislative scrutiny priorities for 2010

  1.  The Equality and Human Rights Commission (the Commission), established on the 1 October 2007 is working to eliminate discrimination, reduce inequality, protect human rights and to build good relations, ensuring that everyone has a fair chance to participate in society.

  2.  Our approach to equality, opportunity and human rights builds on the achievements of our predecessors, the Equal Opportunities Commission (EOC), the Commission for Racial Equality (CRE) and the Disability Rights Commission (DRC). We are here for the 60 million people of Britain and Parliament has set us the task of:

    — Protecting and promoting equality

    — Protecting and promoting human rights

    — Ensuring good relations

  3.  The Commission welcomes the opportunity to provide evidence to the Joint Committee on Human Rights as part of its legislative scrutiny of Bills for compatibility with human rights. As a statutory body, the Commission has duties to promote equality and protect human rights, and encourage compliance with the Human Rights Act 1998 and other human rights obligations under international treaties.[111]

1.  CRIME AND SECURITY BILL

DNA and fingerprints

  4.  The Bill establishes various time limits for the retention of DNA samples, profiles and fingerprints taken under the Police and Crime Evidence Act 1984 (PACE) and anti-terror legislation. These provisions seek to address the European Court of Human Rights' (ECtHR) judgment in S and Marper v United Kingdom.

  5.  The Bill also introduces new powers to take samples and fingerprints from people convicted of crimes domestically and abroad, and powers to compel individuals to attend a police station to be sampled.

  6.  The Commission recognises the DNA database as an important crime-solving tool and acknowledges that the Government's proposals are more proportionate than the current system in that they:

    — aim to treat DNA samples differently from profiles and fingerprints;

    — take some account of the need to treat profiles and fingerprints of those convicted of offences differently from those who are acquitted (or not charged);

    — take some account of the seriousness of the offence;

    — take some account of the unique situation of children; and

    — take account of the unique situation of those who have given their DNA voluntarily.

  7.  However, the Commission still thinks that the Government has interpreted the judgment too narrowly and that the proposals do not go far enough to give full effect to the judgment. The Commission thinks that some aspects of the proposals lack the necessary level of proportion to be lawfully justified.

  8.  The ECtHR's ruling emphasised that the United Kingdom has a narrow margin of appreciation when it comes to determining permissible limits on the interference with private life in this sphere. In particular, it considered that any state claiming a pioneer role in the development of new technologies (as the UK does) bears special responsibility for striking the right balance.

  9.  The Commission believes that if some of the proposals become law the Government is likely to be in breach of Article 8 of the Convention and be acting unlawfully.

  10.  In particular, the proposal to retain DNA profiles taken from adults for 6 years when they are not convicted of a crime is likely to be unlawful according to advice obtained by the Commission from a leading counsel.

  11.  The Council of Europe's Committee of Ministers, which oversees implementation of the Court's judgments, has also questioned how this and other proposals take into account factors that the Court found to be relevant in determining the proportionality of the interference with private life. Key factors are the gravity of the offence that the individual was originally suspected of committing, and the interests deriving from the presumption of innocence.

  12.  The Commission is also concerned about the lack of a mechanism for independent review of the justification for retaining samples in individual cases. The Committee of Ministers shares this concern.[112]

  13.  In relation to retention periods for DNA profiles, the Commission's view is that the starting point ought to be that profiles are destroyed when a final decision has been made in a particular case, subject to limited exceptions. This aligns with the Council of Europe's guidance on the use of DNA within the framework of the criminal justice system[113] that the ECtHR relied on heavily. The limited circumstances can be summarised as follows:

    — there has been a conviction;

    — the conviction concerns a serious criminal offence against the life, integrity and security of a person;

    — the storage period is strictly limited;

    — the storage is defined and regulated by law; and

    — the storage is subject to control by parliament or an independent supervisory body.

  14.  Decisions taken about retaining DNA profiles should also be subject to independent review.

  15.  The Commission recognises that this presumption may be displaced in certain limited circumstances, but wishes to emphasise that the current proposals are too distant from these basic principles to be proportionate.

Domestic violence

  16.  The Commission broadly supports the Government's proposal to introduce Domestic Violence Protection Notices/Orders or "GO" notices/orders.

Domestic violence as a human rights issue

  17.  The Government has made progress in tackling domestic violence over the last 10 years, with a range of initiatives such as Specialist Domestic Violence Courts and Independent Domestic Violence Advisors. Although there is some evidence that the levels of domestic violence may have fallen,[114] it remains widespread and continues to have a significant impact on the lives of many victims.

  18.  It is a major cause of death and disability for women[115] and can lead to physical and mental health problems[116] and reduced economic potential.[117] Domestic violence also has an impact on children living in households where it is occurring including reduced educational attainment; increased involvement in anti-social behaviour and street and playground violence.[118] Domestic violence is a common feature in the households of children who die as a result of maltreatment.[119]

  19.  The Commission recognises domestic violence as a form of violence against women within the United Nations definition which is "gender-based violence directed against a woman because she is a woman or that affects women disproportionately". Although men are also victims of domestic violence, women are disproportionately affected in terms of overall numbers and in terms of the frequency, severity and consequences of violence.

  20.  Domestic violence is increasingly recognised as both an issue of gender inequality and a human rights abuse. The State's positive obligation to protect women and children from violence within the home was highlighted by a European Court of Human Rights ruling in June 2009. It ruled against Turkey in a domestic homicide case, finding that the State had failed to prosecute adequately a man who repeatedly attacked his wife, and eventually shot and killed his mother-in-law.[120]

"GO" orders

  21.  In June 2008, the House of Commons Home Affairs Committee published the report of its inquiry into Domestic Violence, Forced Marriage and "Honour"—Based Violence. It recommended the introduction of GO orders, which have been used in a number of European countries to give victims of domestic violence time and space to consider their options without pressure from the alleged perpetrator.

  22.  In its response to the report, the Government said it would keep GO orders under review as part of learning from good practice in other countries. The orders have now been brought forward as part of the Crime and Security Bill.

  23.  GO orders have already been introduced in Austria, Switzerland, Germany and Poland, all of which are signatories to the Convention for the Protection of Human Rights and Fundamental Freedoms. In all of these countries, the legislation enables the police to exclude the alleged perpetrator of domestic violence from the home although the length of the exclusion and the degree to which the victim can influence the decision varies.

  24.  There is a potential problem with perpetrators breaching the order although breach rates in Austria, which is considered by the Council of Europe as a model of best practice, are low at only 3%. The problem of breaching also applies to existing protective injunctions within Britain and requires a robust response from the police and courts.

  25.  An evaluation of GO orders in Austria found that they were generally supported by victims and were effective if linked to support and help for the victim. Most victims said that their situation had improved in follow up interviews a year later.

  26.  The introduction of GO orders in Britain would help the police to protect victims of domestic violence more effectively. They would ensure the immediate safety of victims and provide an opportunity for them to access specialist support to help them to plan their futures. This would address situations where the police believe that domestic violence has taken place and is at risk of being repeated but where the quality of evidence may not be sufficient to secure a conviction.

  27.  In these cases the onus is currently on victims to apply for an injunction but they may not have the emotional or financial resources to do so. In cases where the perpetrator is charged, a GO order would remove the reliance on bail conditions to prevent the perpetrator returning to the home. GO orders should reduce the number of victims forced to flee their homes because of domestic violence. This is often an extremely disruptive and expensive "solution" which can damage children's schooling, result in victims losing their homes, friends and communities and place unnecessary burdens on the voluntary sector and homelessness services.

Concerns about GO orders/notices

  28.  These potential benefits need to be set against the potential negative impact of GO orders on alleged perpetrators who would be deprived of access to their home, initially for 48 hours through a Domestic Violence Protection Notice (DVPN). This period could be extended from 2-4 weeks if a magistrate's court issues a Domestic Violence Protection Order (DVPO).

  29.  There are also concerns that GO orders would undermine the right to a fair hearing and leave alleged perpetrators exposed to false allegations. Concerns that false allegations are common are not supported by evidence. For example a US study of more than 2000 divorce cases found that less than 2% involved false allegations of abuse.[121] In reality, victims are more likely to under report domestic violence than they are to exaggerate.

  30.  The Commission is unclear as to the relationship between Domestic Violence Notices and Orders and other non molestation orders, in particular orders under Part 4 of the Family Law Act 1996 and the Domestic Violence, Crime and Victims Act 2004. In particular the Commission notes that under the current provisions there appear to be no penalties or provision for determination of breach of the DVPO or DVPN. The Commission would suggest to would be helpful to clarify these issues on the face of this legislation or in the explanatory notes.

Safeguards

  31.  The proposals in the Crime and Security Bill would enable the police to issue a DVPN where they have reasonable grounds for believing that domestic violence has taken place or been threatened and that a DVPN is needed to protect the victim. A DVPN could only be issued by an officer ranked superintendent or above.

  32.  A DVPN must be followed by a police application for a Domestic Violence Protection Order (DVPO). The application must be heard within 48 hours of the DVPN. The alleged perpetrator would be notified of the hearing and would have the opportunity to oppose the order.

  33.  In making a DVPO, the court would need to be satisfied that on the balance of probabilities domestic violence has been committed or threatened by the alleged perpetrator and that a DVPO would be needed to protect the victim.

  34.  The Commission believes that the relatively short length of the DVPN (48 hours), the requirement for the police to obtain a DVPO at court within 48 hours and the opportunity for the alleged perpetrator to make their case in court against a DVPO provide safeguards that limit the negative impact on alleged perpetrators.

  35.  The Commission considers that provision should be made to enable the police to accompany the person subject to a domestic violence notice or order to return to the premises for a short period for the purposes of collecting essential personal items. In addition in the pilot scheme the Commission would welcome consideration of support available to both the person subject to such a notice or order, and the person such a notice or order seeks to protect.

  36.  In addition, the Commission is reassured that the Government intends to pilot the new orders in two police force areas which will enable their impact on both victims and alleged perpetrators to be evaluated.

Stop and search

  37.  The Commission has a longstanding interest in stop and search. There are approximately a million stop and searches every year in England and Wales, mostly under the Policing and Crime Evidence Act 1984 (PACE) which requires "reasonable grounds for suspicion". This specifically must not be based on generalisations, for example, on grounds of race or appearance, or people's past record, but only on suspicious behaviour or matching a specific witness description.

  38.  In 2007-08, Asian people were 21/2 times more likely than White people to be stopped and searched, per head of population, and Black people 71/2 times, above the norm for the past 15 years.

  39.  The Bill contains provisions to reduce the reporting requirements on the police when they stop and search individuals.

  40.  The Commission broadly welcomes the proposals to remove the name, address and vehicle details from the stop and search record form. We understand this is being done to reduce bureaucracy following the Flanagan report, but we support this on the grounds of equality and human rights principles.

  41.  The original proposal in Lord Macpherson's report published in 1999 was that a record form should be completed as a means of accountability and a way of monitoring ethnicity against other factors in stop and search. Personal details of the individual stopped were not necessary to this purpose. These details have been added, with police officers routinely checking names against the Police National Computer, none of which is within the statutory purpose of stop and search.

  42.  Many in the police service have more recently cited the length of the form as a reason to reconsider record keeping. However, the Commission has pointed out that the extent of information gathered has been driven by the police and the Government. Statutory authority is only to ask for, but not require, provision of these personal details.

  43.  The Bill therefore appears to return information recording back to its originally recommended role and extent.

  44.  The Commission understands that the requirement to record ethnicity under Code A of the PACE Act 1984 has statutory authority equal to being enshrined in the Act itself. We do however welcome the new provision to strengthen this reporting requirement by including it on the face of the Bill.

  45.  Furthermore, we would welcome a commitment from the Government to give its continued support to the National Policing Improvement Agency's (NPIA) programme to roll out a "best practice" package progressively to forces through 2010. We are confident this will foster good relations between communities and the police and reduce race inequalities in the use of the power.

2.  PERSONAL CARE AT HOME BILL

Entitlement to personal care at home

  46.  The Commission broadly welcomes the Personal Care at Home Bill, which would require local authorities with responsibility for adult social services to provide free personal care in certain circumstances to adults with the highest needs. The Bill will have the effect of amending existing legislation to remove the six week restriction that currently applies to free social care at home, under the Community Care (Delayed Discharges) Act 2003.

  47.  The Commission agrees with the principle of helping more people with care needs to remain in their own homes. In our view, this social policy approach is supported by several human rights instruments.

    — Article 8 of the European Convention on Human Rights protects the right to respect for one's home and private life. Being able to remain in one's own home is very likely to support an individual's dignity and autonomy—both of which are principles underpinning rights under Article 8, according to the jurisprudence of the European Court of Human Rights.

    — Article 19 of the UN Convention on the Rights of Persons with Disabilities requires states parties to recognise the right of disabled persons to live in the community, ensuring that they have the opportunity to choose their place of residence with a range of support services including personal assistance.

    — The UN Principles for Older Persons, which have been adopted to guide national policies for older people, include the principle of independence. This principle specifies that "older persons should be able to reside at home for as long as possible".

  48.  The Commission understands that questions have been raised as to whether people living in residential care might allege that the Bill creates discrimination in the protection of rights; that is, under Article 14 of the Convention (freedom from discrimination in the enjoyment of Convention Rights) read with either Article 8 (the right to respect for one's home) or Article 1 Protocol 1 (right to peaceful enjoyment of one's possessions—given that those in care homes have to use their financial resources to pay for personal care).

  49.  The decision in the case of R (RJM) v Secretary of State for Work of Pensions [2008] UKHL 63 lends support to the contention that people living in residential care have a particular "other status" within the meaning of Article 14.

  50.  However, while the Commission accepts that it is appropriate to raise this question, we do not believe that the Bill is discriminatory in effect. The policy of providing free personal care at home appears to be reasonably and objectively justified as a proportionate means of achieving a legitimate aim, and thus complaint with Convention obligations.

  51.  The direction of travel in community care policy over the past two decades has been towards a greater recognition of the value of autonomy and independent living. This approach has been supported by a strong evidence base including the responses to the consultation on the government's Green Paper, "Independence, well-being and choice" (2005). These responses strongly underlined the wishes of people with social care needs to remain in their own homes as long as possible.

  52.  The Commission's own work on this issue also supports the principle that disabled and older people with social care needs should have the right to remain in their own homes for as long as they can. Our report, "From safety net to springboard" (2009) drew on a literature review and consultation with stakeholders, as well as examining evidence concerning the current performance of care and support in protecting and promoting human rights and equality. The report recommended that the reform of social care be based on the capability theory advanced by Amartya Sen and recommended by the Equalities Review. A person's standard of living, including being able to live with independence and security, is an element of the capabilities approach which is highly relevant here.

  53.  The Commission also notes that the Government's End of life care strategy (2008) presented evidence that most people's preference is to die in their own homes, whereas in practice only 18% are able to do so. The Commission believes that the Bill would have the effect of supporting more people in their choice to die at home, and thus enhance rights under Article 8 of the Convention relating to personal autonomy about decisions affecting one's own death. This dimension to Article 8 was recognised by the European Court of Human Rights in the case of Pretty v United Kingdom (2002).

  54.  The Joint Committee has raised the question of whether economic rights such as the right to personal care at home can be made the subject of individual entitlements with some means of redress falling short of full legal enforceability. The provisions of this Bill would be enforceable to the extent that they would be subject to the complaints procedure applying to all decisions on social care. If a complainant remains dissatisfied with the outcome of the complaints process, he or she can take up the matter with the Local Government Ombudsman. As an alternative—perhaps where the decision-making processes of the local authority fall a long way short of administrative law or human rights standards—it would be open to the complainant to make an application for judicial review.

  55.  Taking into account these systems of redress that would be available, the Commission believes that the measures introduced by the Bill would be sufficiently judiciable make them entitlements as opposed to discretionary social provisions.

  56.  The Commission has some concerns about the practical issues that might arise in relation to implementation of the bill. These concerns include the definition of personal care; the inherent inequalities in the Fair Access to Care Services system; and the prospect of these measures further reducing the funding available for people whose needs are below the "critical" threshold. We also recognise the importance of ensuring that the Bill does not undermine the options set out in the recent Green Paper on social care. However, we intend to raise these concerns in our response to the Department of Health consultation on the regulations under the Bill.

3.  DRAFT IMMIGRATION BILL

Asylum support and destitution

  57.  The Commission welcomes the JCHR's examination of the Draft Immigration Bill, particularly that aspect which is broadly equivalent to section 55 (s55) of the Nationality Immigration and Asylum Act 2002. The relevant clauses prohibit the Secretary of State from providing support to destitute asylum seekers where it considers that an asylum application was not made as soon as reasonably practicable on arrival in the UK. However, if a failure to provide such support would result in a breach of an asylum seeker's Convention rights, the Secretary of State would be obliged to provide it.

  58.  The approach set out in s55 and replicated in the Draft Immigration Bill has proved complex and controversial and has not delivered the results the Government says it intended.

  59.  Government representatives have argued that previous support arrangements for asylum seekers acted as "pull" factors in attracting economic migrants into the UK under the cover of asylum claims. However new research questions both the claim that such provision might pull asylum seekers into the UK and that the newer arrangements might discourage them.[122] In general, the evidence is that the arrangements set up under s55 encourage asylum seekers whose claims have been rejected to abscond.

  60.  Further, the Commission considers that the decision in the Limbuela case[123] renders the provisions of section 55 (to be replicated in the Draft Immigration Bill) of very little practical effect. Following the decision, the Secretary of State will rarely be prohibited from granting support to asylum seekers on the basis that their applications for asylum were not submitted as soon as reasonably practical. The House of Lords was clear in stating that not every case of destitution will constitute a breach of a person's Convention rights, but, in practice, it is hard to envisage circumstances in which destitute asylum seekers, who are excluded from making a living for themselves, would not face a breach of their right to be free from inhuman and degrading treatment. The case confirms that, in practice, once asylum seekers satisfy the definition of destitution under the Bill, in very many cases their Convention rights will be at risk, and the Secretary of State will be obliged to act to avoid a breach of those rights.

  61.  Immigration officials would be required to make a fine and implausible distinction under clause 211 of the Draft Immigration Bill to distinguish between destitute asylum seekers whose state is so severe that their Convention rights are threatened, and those destitute asylum seekers whose state is not so severe. The words of the House of Lords are pertinent:

    "The combination of s 55(1) and s 55(5) places the Secretary of State in a difficult and unenviable position. Subsection (1) makes it positively unlawful for him to provide support to any asylum seeker who has not made his asylum claim "as soon as reasonably practicable". But sub-s (5), in conjunction with s 6 of the 1998 Act, requires him to provide that support "to the extent necessary for the purpose of avoiding…" (our emphasis) a breach of the asylum seeker's art 3 right not to be subjected to inhuman or degrading treatment… A literal approach to sub-ss (1) and (5) would create for the Secretary of State an impossible tightrope to tread. He would be bound to fall off one side or the other in almost every case".

  62.  In practice, the provisions would either create a real risk of incorrect assessments being made in individual cases and a subsequent breach of individuals' Convention rights, or render the provision meaningless and without practical effect, since support would be granted in all cases. For these reasons, these provisions do not, in the Commission's view, provide a satisfactory mechanism for the protection of asylum seekers' Convention rights. This Bill should be seen as an important opportunity to remedy the problems created by section 55 of the 2002 Act, not to re-enact them.

22 January 2010


















111   Section 9 of the Equality Act 2006. Back

112   http://www.coe.int/t/DGHL/MONITORING/EXECUTION/Reports/Current/United<&lowbar;>Kingdom<&lowbar;>en.pdf Back

113   Committee of Ministers Recommendation No. R (92) 1, paragraph 8, and the related Explanatory Memorandum: referred to in paragraphs 43 and 44 of the Court's judgment in S and Marper v United KingdomBack

114   The Government's response to the Home Affairs Committee's report on Domestic Violence, Forced Marriage and "Honour"-Based Violence refers to a 65% decrease in the number of incidents of domestic violence reported in the British Crime Survey between 1995 and 2007-08 Back

115   WHO, 2005, Multi-country Study on Women's Health and Domestic Violence against women Back

116   Walby, S, 2004, The Cost of Domestic Violence, published by DTI Back

117   Ending Violence against women: from words to action, Study of the Secretary-General, 9 October 2006 http://www.un.org/womenwatch/daw/Violence against women/launch/english/v.a.w-exeEuse.pdf Back

118   London Safeguarding Children Board, 2008, Safeguarding Children Abused through Domestic Violence Back

119   Humphreys and Stanley, 2006, Domestic Violence and Child Protection: Directions for Good Practice Back

120   http://www.hrlrc.org.au/year/2009/opuz-v-turkey-2009-echr-3340102-9-june-2009/ Back

121   Thoennes and Tjaden 1991, from Mothering Through Domestic Violence, L Radford and M Hester, 2006 Back

122   Crawley H, Chance or choice? Understanding why asylum seekers come to the UK, Swansea University/Refugee Council, January 2010, available at http://www.refugeecouncil.org.uk/policy/briefings/2010/13012010<&lowbar;>x Back

123   Adam, Tesema and Limbuela v Secretary of State for the Home Department, [2004] Back


 
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