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 autonomyboth 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 possessionsgiven 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 alternativeperhaps
where the decision-making processes of the local authority fall
a long way short of administrative law or human rights standardsit
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<_>Kingdom<_>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 Kingdom. Back
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<_>x Back
123
Adam, Tesema and Limbuela v Secretary of State for the Home
Department, [2004] Back
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