Should the Single Equality Commission be able to protect human rights?

Sarah Spencer

Institute for Public Policy Research and

Visiting Professor, Human Rights Centre, University of Essex

December 2002

Submitted as evidence to the Joint Committee on Human Rights

An earlier version of this paper was presented at a seminar organised by Justice on 27 November 2002. It reflects work on equality and human rights issues supported

by the Nuffield Foundation and by the Joseph Rowntree Charitable Trust.

Should the Single Equality Commission be able

to protect human rights?

The consultation paper Equality and Diversity: making it happen (October 2002), which considers options for establishing a single equality body (SEB), notes that the government’s vision for equality and human rights are complementary and that this has implications for any institutional support arrangements relating to these two areas. The terms of reference for the feasibility study for the SEB had committed the Government to considering ‘the relationship between possible new arrangements for promoting equality and those for promoting and protecting human rights more widely’, but thinking on these issues was not sufficiently well developed across government to be reflected in the consultation paper. Ministers intend to give the relationship further thought before coming to a decision.

This paper is intended to assist in that process. It considers the Government’s visions for equality and for a human rights culture, and the respective functions proposed for a single equality commission and (by those outside of government) for a statutory body on human rights. It explores the differences and similarities in these agendas and considers the advantages and disadvantages of housing responsibility for their promotion within a single statutory body.

Context

Prior to the SEB feasibility study being launched in May 2002, thought had been given to the parallel issue of whether a Human Rights Commission should be established. That issue arose in the context of the Human Rights Act 1998. During the passage of the Bill parliamentarians proposed that a Commission be set up to promote human rights, in the same way that the CRE and EOC had been established to ensure the success of the earlier anti-discrimination legislation. The Government was not convinced of the need for a Human Rights Commission and referred the matter to Parliament’s Joint Committee on Human Rights (JCHR), which commenced its inquiry in 2001. That inquiry is ongoing and expected to report early in 2003. Meanwhile, the Committee urged the Government to ‘give full weight to the element of the [single equality] project’s terms of reference relating to the promotion and protection of human rights’ and said that, if it failed to do so, the proposals would ‘likely be incoherent, incomplete and ineffective’. [i]

In Commonwealth countries, statutory bodies to promote equality standards do include human rights, but in Northern Ireland and the Republic of Ireland the Human Rights Commission is separate from statutory bodies to promote equality. In Scotland, where the Scottish Executive proposes to establish a Human Rights Commission, there exist the Scottish offices of the CRE, EOC and DRC, the head quarters of which are in England. Any new machinery for promoting equality and human rights will need to take account of the prior existence of these statutory equality and human rights bodies in parts of the United Kingdom.

Government’s new vision for equality

Equality and Diversity: making it happen sets out a powerful vision of a society founded on equality principles, ‘an inclusive society where everyone is treated with respect and where there is opportunity for all’ and in which everyone can play their full part in social and economic life. With equality legislation now to cover age, sexual orientation and religion and belief as well as race, gender and disability, the agenda can be protection for all, not separate agendas for different minority groups:

‘We want to see a Britain where there is increasing empowerment of all groups, with economic empowerment a key goal; where attitudes and biases that hinder the progress of individuals and groups are tackled; where cultural, racial and social diversity is respected and celebrated; where communities live together in mutual respect and tolerance; and where discrimination against individuals is tackled robustly’.

Role of a single equality body

The consultation paper considers the contribution that the equality machinery could make to achieving that vision. It notes that the Government also wants to make the equality legislation easier to use; to mainstream equality objectives into the development of the policies and practices of government and public bodies; and that there are a wide range of additional employment and social policies designed to address inequality and social exclusion such as New Deal and the Minimum Wage.

The role of the SEB is intended to fit within that wider matrix of initiatives. The challenge is not only to provide redress to individuals who have been discriminated against but actively to promote equality in employment, service delivery and participation in civic society, using all available policy levers: an integrated, comprehensive approach.

The functions of the SEB are thus anticipated in the consultation paper to be to:

-spread awareness of equality rights to individuals, business and the public

-give advice and information to individuals

-give advice and guidance to business and advice giving organisations

-promote good practice among business and other organisations

-support individuals with complaints of discrimination, including cases of multiple discrimination; with greater emphasis than before on alternative dispute resolution

-undertake investigations

-take enforcement action

Although the new legislation on age, sexual orientation and religion and belief has given the consultation paper a strong focus on equality in employment, the existing equality commissions have an equally strong focus on equality in services, particularly public services. This is not least in relation to race where there is a positive duty on public bodies to promote race equality in their services as well as in employment and the CRE’s first priority is currently to promote good practice within the public sector – particularly in health and social care, education, housing and the criminal justice system. The importance of equality within public services is expected to be retained within the single equality body.

The distinguishing features of this equality agenda are thus that it:

  • Is inclusive of the whole population, while recognising the need to address the specific discrimination experienced by particular groups
  • Covers employment, services and civic participation
  • Enforces individual rights but also increasingly promotes systemic change: the mainstreaming of equality principles into policy and service delivery to prevent infringements of rights
  • Addresses stakeholders who are employers and service providers but also government and public bodies as employers and as policy makers
  • Is underpinned by domestic equality legislation, itself underpinned by recent European directives and earlier international human rights agreements
  • Will be promoted by a statutory body that will complement the Government’s wider economic and policy levers for promoting equality and inclusion.

Consultation among stakeholders has found that there is a difference of emphasis on where, within this agenda, the focus should lie[ii]. While some see the new body as primarily individual victim centred, assisting and empowering individuals to received redress, others want the new body to give priority to combating systemic discrimination against disadvantaged groups. For others, the priority is culture change in society as a whole, seeking through promotion and strategic use of enforcement to change the practices and attitudes which give rise to discrimination. As we shall see below, these differing emphases are also found in the wider human rights agenda.

Government vision for human rights

The Government’s vision for human rights was most clearly enunciated by Ministers during the passage of the Human Rights Bill and subsequent implementation of the Act which, in 2000, brought into domestic law the wide range of rights in the European Convention on Human Rights: rights to life, to privacy, to family life, to a fair hearing and to freedom of expression, for instance; and to freedom from degrading treatment and from discrimination in the enjoyment of these rights.

The rights it protects thus go far wider than those in the equality legislation. Moreover, while the European Convention is the only international human rights instrument that has been brought into domestic law, the UK has undertaken to uphold broader international human rights conventions, such as the UN Convention on the Rights of the Child. Within domestic law, there is also legislation and common law protection for specific human rights, for instance on data protection (privacy).

Ministers stressed that, while the Human Rights Act does provide further remedies for individuals in the courts, the intention was primarily that the Act should have a preventive function, ensuring that the culture within government and public bodies is one which respects people’s rights, so that such remedies are rarely necessary. As such, it was part of the public service modernisation agenda.

Thus the then Home Office Minister Lord Williams of Mostyn said that: ‘Every public authority will know that its behaviour, its structures, its conclusions and its executive actions will be subject to this culture’ [iii] and the then Home Secretary that:

‘The Act points to an ethical bottom line for public authorities. It’s what you call a fairness guarantee for the citizen… This new bottom line, the fairness guarantee, should help build greater public confidence in our public authorities. And that’s a vital part of our strategy for getting more public participation. For building the society we want to see’.

With rare exceptions, the rights the Act protects are not absolute and a culture of rights within public bodies was thus not intended to give priority to individual rights above all other considerations. Rather, the Act provides a framework in which the rights of the individual, for instance to privacy, can be balanced against the rights of others or of society as a whole, for instance to protection from crime.

The intention was not only that the Act should contribute in this way to the public service reform agenda. It was also intended to influence the culture of wider society:

‘Consider the nature of modern British society. It’s a society enriched by different cultures and different faiths. It needs a formal shared understanding of what is fundamentally right and fundamentally wrong if it is to work together in unity and confidence…..The Human Rights Act provides that formal shared understanding’.[iv]

This role for human rights was reinforced in the recent White Paper on migration, Secure Borders, Safe Haven in which the Home Secretary, David Blunkett, stressed the importance of human rights in uniting a diverse society:

‘We want British citizenship positively to embrace the diversity of background, culture and faiths that is one of the hallmarks of Britain in the 21st Century. The Human Rights Act can be viewed as a key source of values that British citizens should share. The laws, rules and practices which govern our democracy uphold our commitment to the equal worth and dignity of all our citizens’.[v]

Role of a Commission in achieving that vision

Ministers have said that they have an open mind on whether a Commission is needed to promote this vision and have not therefore spelt out what it might do. Others have. Labour Peer Baroness Amos, former chief executive of the EOC, told Peers:

‘We need a body which will raise public awareness, promote good practice, scrutinise legislation, monitor policy developments and their impact, provide independent advice to Parliament and advise those who feel that their rightshave been infringed. I am particularly keen to see the promotion of an inclusive human rights culture which builds on the diversity of British society. That would be a key role for any human rights body to play.’ [vi]

The Lord Woolf, then Master of the Rolls, said:

‘The most important benefit of a Commission is that it will assist in creating a culture in which human rights are routinely observed without the need for continuous intervention by the courts. Human rights will only be a reality when this is the situation.’ [vii]

And Baroness Shirley Williams, a former Secretary of State for Education:

‘The great advantage of a Human Rights Commission or Commissioner is that it would make human rights open to the public, it would encourage the public to own human rights in a way that would not be exclusive either to Parliament or to the legal profession but should be the beginning of a real and profound change in the democratic ethos and sense of freedom in this country’.

‘I (also) believe the training and education of public bodies is just as important as the establishment of case law….I fear that, for failure to train them in what the Bill means, we shall see a great deal of litigation that is unnecessary, expensive, slow, tedious and repetitive.’ [viii]

In April 2002, when appearing before the JCHR, the Lord Chancellor was asked whether he thought that public authorities outside of Whitehall have injected human rights thinking into their service delivery. He replied that he had not sensed any reluctance to embrace human rights but added ‘Really, there is a limit to what the centre can do to encourage such a culture’.[ix]

In the two years that has passed since the Human Rights Act came into force, it is debatable whether a human rights culture has yet begun to shift practice in public bodies or take hold in the public at large. A survey by District Audit found that, contrary to government advice, the majority of local authorities and NHS Trusts had not reviewed their policies and procedures for compliance with the Human Rights Act and 42% of health bodies had not even taken action to raise staff awareness. Few had mainstreamed human rights considerations into decision making, were monitoring compliance on an ongoing basis, nor acted to ensure that contractors providing services for them were taking reasonable steps to comply. Authorities complained of a lack of guidance and ‘staff felt that they were operating in a vacuum’. Good practice local authorities had embedded human rights within their Best Value process and within existing training and procedures, for instance training on implementation of the new positive duty to promote race equality.

Research for the British Institute of Human Rights by Jenny Watson, Deputy Chair of the EOC and a human rights consultant, investigated the impact of the Act on children, disabled people, older people and refugees and asylum seekers[x]. While she found examples of good practice, the Act had generally had a low impact on the service received by these groups. There were varying levels of awareness of the Act by service providers and, where awareness was high, it was generally being used to challenge treatment through individual cases rather than to achieve systemic changes in policy and practice. In relation to older people, she records ‘Participants from this sector presented overwhelming evidence that older people are routinely treated with a lack of dignity and respect that would simply not be accepted in relation to other social groups’. Whereas the equality legislation is accepted in the care field as a standard that has to be met, this was not the case with the Human Rights Act. It had not been used as a lever to generate systemic change.

The distinguishing features of this human rights agenda are thus that it:

  • Is inclusive of the whole population, while recognising that particular groups, such as the elderly or children, are particularly vulnerable
  • Embraces a wide range of rights, some of which have a stronger association with equality than others
  • Focuses on the power which government and service providers have over the individual, but also on rights within employment (for staff of public bodies), within the family, and on civic participation (freedom of speech, right to vote)
  • Enforces individual rights but is primarily intended to promote culture change / the mainstreaming of human rights principles to prevent infringements of rights
  • Addresses government and public sector as service providers but also as employers
  • Is underpinned by the Human Rights Act, itself underpinned by the European Convention on Human Rights, and by international human rights agreements
  • Has as yet no statutory body to promote this culture change

Should equality and human rights be promoted by the same statutory body?

There are arguments for and against a single statutory body taking responsibility for equality and broader human rights protection. The key questions are these: