Joint Committee On Human Rights Minutes of Evidence


Examination of Witnesses (Questions 360 - 379)

MONDAY 1 JULY 2002

MR GURBUX SINGH, MR BERT MASSIE, MS JULIE MELLOR AND MS JENNY WATSON

  360. That is what I am asking about.
  (Mr Singh) There is that view, but what is equally fascinating is that the Human Rights Commission in Northern Ireland perceive themselves, if I may say so, as a Cinderella organisation, and the people who run that Commission would be very much happier being within the equalities domain, i.e., within a single institutional structure, whereas the Equalities Commission does not believe that that is helpful. Your point about resources is fundamental. If we are going to have a revised organisation and revised institutional structure, whether it is human rights or a single equalities organisation, we need to be adequately resourced in order to deliver.
  (Mr Massie) If you talk to people, as I do, from the Equality Commission in Northern Ireland, they will tell you it is all wonderful, and I respect what they are saying. That is not what I hear from disabled people.

  361. This is what I am asking about.
  (Mr Massie) I always take my line from what disabled people tell me, because they are the experts on it. I understand they did have a staff of about twenty people, but that has now been reduced to five. You could argue that this is a good sign as far as integration is concerned, but you can also argue that this loses some of the focus—and you can take it either way. I will just make a number of points that are not really disputed. There are more disabled people in Great Britain than there are people in both Ireland and Northern Ireland. The dimensions of the problem are probably even more diverse in some ways. If you join all the Commissions in this country, as in Northern Ireland, it would certainly need to be resourced properly. Whenever bringing bodies together is raised, it would be surprising if somebody in the Treasury was not thinking that there might be some cost savings. For this to work with the new strands and the new rights coming into effect in 2004 anyway, you are probably talking about a much larger budget. If this is going to work, you should be piling more money in. This will not work as a cost-saving exercise. If it does, it will be a disaster. Even if the Government is minded to resource this proposed organisation properly—and we have no guarantee they will—the provisions in the Act of Parliament that establishes it are critical. We have already found with the DRC Act that there are areas where we know disabled people are experiencing a pretty appalling time. We cannot do anything; we have to sit back and say: "Sure, we know it is rough and abysmal, but, alas, Parliament has so decreed." Let me give you two examples to show the problem. We know of a director of her own company with spinal atrophy. She is a qualified solicitor. She went into hospital with a chest infection. To her horror, she found that a doctor had placed on her notes, "do not resuscitate". Perhaps he could not imagine that a woman as profoundly disabled as this women is could make a valuable contribution to society and enjoy life. We cannot act on that as an issue of human rights. We have another case of a lady who needs to do what we all do, to go to the lavatory. She cannot get upstairs to the lavatory. We have the technology. You put in a stair lift. It ain't that tough, but her local authority said: "No, you must use a commode in your living room and somebody else can carry the container upstairs later." That is undignified and distressing. There is another example of a care agency: because they want to make sure the woman is spending the money correctly, when she has a wash—and her neighbours do that for her—they insist on standing and watching. It is undignified, and we cannot do anything about it. This is everyday life for disabled people in this country. It is not just about ramps into buildings; it is about the dignity that we, as a society, believe disabled people should be afforded. In many cases, we are not doing it. We are not resourcing it. The DRC cannot do anything about it. There is a danger that the new body will be launched with a great fanfare of trumpets, like the launching of a ship, and it will sink as soon as it gets into the sea because the powers will not be there. It is critical that the Act of Parliament is written extremely carefully to include powers that will give people a decent life.
  (Ms Mellor) I should like to pick up on the resource aspect of your question. One of the seven principles that we have suggested to Barbara Roche should be used in her project, in testing the visibility of the single equality body, is around resources. The resources for the six strands on equality should be at a level that supports the current level of activity that is currently followed on three strands, for all six. The Equal Opportunities Commission would argue that it needs to be additional because one of the reasons we have not used our enforcement powers to do investigations over recent years is because we have not had funds. I do not know if you have the comparative situation. We have 7 million; Bert has about 11-12. We do not have the flexibility within the year to launch an expensive investigation, as the CRE had to do recently with the prison service, which was up to £1 million. On a £7 million budget, we do not have that flexibility. We think that is one of the seven principles that should be applied in development of a single equality body. There might be something similar if you are looking at a human rights commission, or an integrated human rights commission. I am happy to send on the letter that we sent to Barbara Roche, which describes the seven principles and elaborates on their importance.

Baroness Prashar

  362. My question is about how you see your role. To what extent do the human rights principles inform the equality agenda for you; or are human rights and equalities in separate boxes? Do you see the Human Rights Act as just about civil and political rights, or do you see the "culture of rights and responsibilities" which was supposed to follow from the Act as creating a new framework within which measures to promote equality and diversity have to be evaluated?
  (Mr Massie) The DRC see it as integral. We have just brought a case to judicial review, and this was about lifting policies—that people could be lifted who were no more than six stone, and that catches out most people. We tried to change that. Had we had the human rights power, we would not have spent so long using some rather clever lawyers to find a way of using the powers we did have. It is not just about the life-and-death issues; it is about the right to participate. Some of the areas where disabled people's human rights are limited are literally Victorian in many cases. We do see there is a whole agenda there which we would very much like to be promoting. We do link it very much with the equality/human rights agenda.

  363. How far do you take into account your international obligations which are not covered?
  (Mr Massie) We obviously have obligations as an organisation, but we have not really contributed much to the international arena—we are two years old, as I say. In the disability movement there is a growing movement for a UN convention on the rights of disabled people. Through DRC membership which links with the European Disability and Rehabilitation International Forum, we are very much supporting that initiative. It would not have a devastating effect on this country because most of the rights that would be introduced by that convention are already in domestic legislation—not all, but most. Nonetheless, it would help people in this country if they go abroad. There is a huge range of things that would be very helpful. We think that anyway we should be promoting issues about which we are concerned in relation to the world-wide disability movement as far afield as we can, given our limited resources.

  364. Do you find comment on the Government's reports to the UN under these or other instruments?
  (Mr Massie) We have not so far. We would like to build on our capacity; it is simply a case of building up. We are just a young organisation so we put our efforts where we think we can make an immediate impact on disabled people.
  (Mr Singh) The view we take is that there is a significant degree of overlap between equalities and human rights matters, but there are also some important and significant differences, and we need to acknowledge both. Clearly, the Race Relations Act as amended and the Human Rights Act impose obligations on public authorities as well. Compliance with both Acts can call for similar approaches. There are also differences because human rights is more than just about equality and concerns fair trials, privacy, freedom of expression and those sorts of matters. Human rights govern the relationship between the state and the individual whereas in terms of race that is not necessarily the case. There are issues about the state and individuals but much of it is about individuals as individuals or against private sector organisations. There is actually a difference. We attempt to try and pick it up, but it is difficult, frankly, given the agenda of the Commission, which is principally about an amended Act, where the major positive duty is perhaps the single principal focus of the organisation. That is the key driver for real change. Perhaps we are failing in that respect. Certainly, our focus has been about new legislation and the extent to which we discharge new responsibilities. That has been the principal focus of our work. I do think that if we are to get this right in future, then we need a much more rational and consistent approach.

  365. Do you take account of international instruments that are not covered by the Race Relations Act?
  (Mr Singh) We do not take it into account in a systematic way—it would be false of me to say otherwise. There are some efforts to look at this. Generally, we do not. That is very much an honest view and I would not want to try to mislead this Committee.

  366. You do not even comment on the Government's reports to the UN. You have never done that.
  (Mr Singh) Not in the way that we should. We have been involved in debate and discussion, but not to the extent that we should.
  (Ms Mellor) Taking the first part of your question as to whether we take human rights principles into account, we do absolutely. We think they form a great part of our work because equality is part of human rights; it is an aspect of the overall human rights agenda. In terms of what account we take of the international conventions, I, like Gurbux, would say that we do not take a huge account of it, partly because CEDAW, for example, does not create enforceable individual rights in the UK and partly because the issues that we currently focus on are generally fully addressed under the Sex Discrimination Act without EU law, and CEDAW adds very relatively little. However, having said that, CEDAW plays a big part in our consideration of our work on getting more women into political life recently because it informed the work to argue for and then support the changes in the law to allow political parties to use special measures to boost the number of women candidates, and CEDAW came into that.

Lord Lester of Herne Hill

  367. I need to declare one or two interests. The one that has been mentioned is my special interest in the CRE and EOC as counsel and also, as I am sure the witnesses know, with Bob Hepple in work in the Single Equality Bill. I should like to summarise what I think is the highest common factor of your evidence, rather than the lowest common denominator—the architecture problem about an equality commission and a human rights commission—and then see if I have got it right. All three bodies gave evidence last July that they were in favour of a human rights commission with compliance powers. I assume that that still stands. As I hear you today, the EOC and the CRE, with the strong dissent of DRC, are broadly speaking in favour of an equality commission, provided that the specialist non-discrimination sections would be properly reinforced and preserved without a hierarchy of rights. Thirdly, all bodies are in favour of being able to deal with the wider human rights dimension of your work whether or not there were a human rights and equality commission, or a single equality commission, or lots of separate equality commissions. If I can summarise the position, you are less sure, and perhaps less keen, on having a human rights and equality commission than you are on having a Northern Ireland or Republic of Ireland solution of having an equality commission side by side with a human rights commission. Can I just see whether I have got that right or wrong before asking you the other question?
  (Mr Singh) There may be some confusion about what I said. Most certainly, we are very comfortable with an equalities commission, but we are also very comfortable with sitting alongside a human rights commission. In fact, we would go further than that; we believe that a human rights commission is essential if we are to have a serious impact in this country on human rights. Will it create the sort of human rights framework and culture that we all want to see? That will not happen unless an institution is in place. We would see them side by side. The only point that I would add to that is that if it were the case that that human rights commission was not a runner or was not on the agenda, but that a human rights component within a single equalities body was, then in that context the CRE would be persuaded to re-visit its view about supporting that line.
  (Ms Mellor) On the point about a human rights commission and being in favour of it having enforcement powers, there is the question of what is meant by "enforcement powers".

  368. Similar to the EOC's powers.
  (Ms Mellor) We would need to look at what is actually necessary within the range of what we have and the range of what we would like, and within that range there may be some that are more appropriate for a human rights commission, so I would not just say "move that across and have it exactly the same". I would like to stress that one of the things we have learnt from 25 years' experience in the Equal Opportunities Commission is the necessity to have both enforcement and promotion, because one without the other limits you. On your last point about which models we are keen on, I would say something different to what you suggested. We see three models around at the moment: one is the separate human rights and equality commissions; another is an integrated equality and human rights—and what was underneath that would have to be looked at in some detail; and the third is the umbrella model. The Equal Opportunities Commission is less keen on the third, but think that both of the first two models could be made to work.
  (Mr Massie) The DRC would prefer to see a separate human rights commission with a full range of powers. If the Government is not minded to do that, then we would rather see it brought into whatever body they create. I gave you examples earlier of disabled people who probably have a case under the Human Rights Act, but because they do not have the resources to bring a case, you have a piece of legislation which is meaningless—it is about as much use as a ton of whipped cream at a Weightwatchers Convention. It needs somebody to support it. Most disabled people are on state benefits and do not have access to the law. That is why, as a nation, we need to say we believe our citizens will be protected; and by that we mean by some sort of agency with resources.
  (Ms Watson) Can I elaborate on something that Julie said about enforcement and promotion of powers. Probably for all of us, but certainly for the EOC, there is a limit to how much you can change the culture of institutions if you do not have promotional powers because you cannot get across a proper understanding of the principles that lie behind your legislation. Enforcement powers are important, but promotional powers are as important because without them you cannot communicate to the people to whom you want to say in the first place, "these are your rights; take advantage of them", and in the second place to say, "and also you have responsibility to respect others' rights". The two go hand-in-hand, and I would not want to say that enforcement is more important.

  369. Unlike most countries we do not have a general constitutional guarantee of equality, a free-standing one. We do have Article 26 of the International Covenant on Civil and Political Rights, which is not part of our law, and we have the proposal for Protocol 12 of the European Convention on Human Rights, which would be the same—a free-standing guarantee of equality—which the Government is unwilling to adhere to. If you had a single equality commission, or, for that matter, some variant of that, would you be in favour of it dealing only with the specific text of the anti-discrimination law, read with European Community law, or would you like it to be able to deal with a more free-standing guarantee of equality that went beyond the specific kind of unlawful discrimination that is there already, which would be the effect of using Article 26 of the ICCPR, or, if we ratified it, the 12th Protocol? I hope that my question is not too legalistic and that you understand it. Are you in favour, in short, of going beyond the highly prescriptive technical language of your own mandates in your own anti-discrimination legislation, read with EC law, to a free-standing guarantee of equality; or would you prefer the equality commission or commissions to have a—
  (Ms Watson) We would look at it in the light of the changes that were proposed but specifically in relation to Protocol 12, if the Government ratified it, it would be a useful thing to have. It would mean that you had a free-standing right that would enable you to challenge discrimination, and that would be very helpful in enabling organisations to understand the changes in their culture that they need to make, and it would be possible to take a case using that. It would make it very clear to everybody the kind of systemic change that we need to see for those services to be delivered in a way that meets people's obligations.
  (Mr Massie) I would support that answer. Article 26 has the advantage that it covers a number of grounds not currently covered by British law. It does not deal with disability explicitly of course, but we assume it would do—it is another example of being sidelined, but it happens all the time. If we had Protocol 12 my gut feeling is that we should concentrate on that but that it could go much wider in its first years. That would be open, obviously, to consideration later.
  (Mr Singh) The CRE's position is different from that. We regret that the Government has not implemented Article 12 and we most certainly support and welcome ratification of Article 12 and the wider agenda.

Baroness Whitaker

  370. I should like to declare an interest. I carried out a consultancy with CRE some years ago. Jenny Watson mentioned promotional powers but it is only in the Race Relations Act that there is a statutory duty to promote—a positive duty. I would like to ask Gurbux Singh, first of all, what has been the effect, if any, so far on public bodies. How have the public authorities reacted to this new duty? In answering that, can you turn your mind to saying whether this is the way to create a culture—through a positive legal duty?
  (Mr Singh) Ultimately, we are trying to change the behaviour, the culture, of organisations to deliver genuine equality to all. I think that the positive duty is one of the most significant things which Parliament has delivered. It has the potential to deliver a step-change in which the public accept responsibility. For the first time there is now a duty. Whilst we may have some disagreements about the rather mechanistic nature of that duty, the duty is most certainly there and that duty is enforceable. Those are the two most significant things: there is a formal duty and it is enforceable by the CRE, if necessary in the courts. I believe it has the potential to deliver some fundamental change across public institutions, whether Whitehall, the National Health sector, education authorities or local authorities.

  371. A change in culture?
  (Mr Singh) Yes, but what we are concerned about ultimately is outcomes. What actually happens as a result of the huge amount of activity which public bodies now have to engage in? It is not about the production of nice little glossy reports by 44,000 public bodies in this country; it is ultimately about the outcomes that those processes deliver for a fairer workforce; services that are more fairly and equally delivered to all sections of the community; policies that are understood across the whole of the public sector; whether we get a much more reflective and more genuinely reflective public sector reflecting modern Britain. I think that this Act has the potential to deliver that. It will require some serious leadership on the part of the public sector and it will require those agencies and inspection bodies across the public sector to build into their inspection activities, race and equality. The CRE is certainly not in a position to effectively police the public sector. Inspection bodies police the prisons, the probation service for example. The Audit Commission has a very important role to play. My view is that whilst it is early days, we can learn lessons from Northern Ireland, and those lessons are very much that the new duty is beginning to have a real impact. It is manageable and is beginning to have an impact. It is beginning to change the hearts and minds of people.

  372. Can you give me examples of public bodies that have reacted?

  (Mr Singh) The Crown Prosecution Service—they are looking at employment practices, at how the organisation looks in a race/ethnicity context and then looking to see how to change that, because it is one thing to establish the facts but it is another thing to change the inconsistencies. There are some real examples of that. I have looked at race equality schemes that are incredibly impressive, which have led to targets being set in terms of employment and delivery. That is the way of the future. It is vitally important that the promotional aspects of equality work is not de-coupled from law enforcement. There is a debate going on, which you can pick up in certain quarters, and there are intentions to de-couple promotional aspects. That, from my perspective, would be a disaster. It is vitally important that the two remain together. If you want to see a sustainable change across the disabilities area and gender issues, it is crucial that that duty is extended to those areas. There is no doubt in my mind that that must be the case.

  373. You have almost answered my next question. I was going to ask Ms Mellor and Mr Massie: you have not got a positive duty in your own field of responsibility and there is not a single equalities act, so will you be coping less well in the absence of both of those?
  (Mr Massie) The Government has said that it will introduce new laws for disabled people, and one that places a positive duty on public authorities to promote disability equality. We look forward to receiving that timetable. We do not know when that will happen, and there is a range of other recommendations from the Disability Rights Task Force which the Government also said it would introduce. When it comes to a single equality commission, we have this basic problem: with disabled people, it is not a case of saying, "we have the rights"; all we need now is a body to educate and enforce. We are nowhere near that stage yet. We are still at the stage that some of the bodies were at 20 years ago, saying, "we still do not have the rights".If the single equality commission is formed on the current basis, disabled people will step back quite a number of years in influence and in pushing this agenda. Lord Lester referred to Professor Hepple and the Professor produced a report two and a half years ago, I think, to which Lord Lester wrote the foreword, and that report did raise the issue of a single equality commission. Now that was not a throwaway line—it was quite well worked out—but it said, first of all, that there should be a single equality act and once you have that then the single equality commission makes sense because you have equalised the rights. Now, in another place I have said having the single equality commission without the single equality act is like having a cart with no horse, and I think there is a real danger there. I think also, if you do not have that, then there will inevitably be a hierarchy of rights within the new commission. We can talk about identities, etc, but people want to choose the identity which gets them round a particular bit of the law and it would be totally disruptive. If the government would bring forward the legislation, first of all, on rights, bring forward the single equality act, then a lot of DRC's anxieties about a single commission would evaporate.
  (Ms Mellor) I would reinforce absolutely what Mr Massie said: it would obviously be a profoundly serious limitation on the potential effectiveness of the single equality body not to have that public sector duty applying—not just to gender and disability but the three new strands as well. The government is committed to introducing that duty when legislative time permits and we look forward to them taking prompt action in doing so, and the reason is that we have learnt from our 25 years of experience that individual rights stick with individuals, and to promote the systemic change that will deliver equality and the culture of equality and human rights takes a more systemic legal tool, which we think that duty is. In terms of the form the duty takes, I think we now have three different models to look at experience of: one is the Northern Ireland model; another is the Race Relations Act model and the third is the very general duty to promote equality that the Welsh Assembly has under its constitution, and certainly on gender that is where we found that duty combined with political commitment has led already in its short life to a significant impact on issues like equal pay.

Chairman

  374. Perhaps I could ask you whether you consider that any Human Rights Commission should be primarily concerned with compliance or with pre-emption?
  (Mr Massie) The experience we have had, and we have seen it with others, is that it is essential they have both. If you can promote what a law means and you inform people of what rights and obligations that law imposes then, firstly, you reduce the likelihood of people breaking it but secondly, if they do, it means you can at least talk common language in the enforcement so I think the two go together in harmony and persuasion without enforcement simply will not work, as we discovered with seat belt legislation. Law alone without bringing people on board will also fail.
  (Mr Singh) I think the same; essentially it is both. The law has an important role to play but promotional work equally balanced out has a fundamental role to play. If we are to deliver sustainable change then promotional work is profoundly important.
  (Ms Mellor) Perhaps I could build on our experience of the impact of our promotional responsibilities in our recent work on equal pay because there I think, while enforcement is an important lever, what our promotional work has done has got equal pay back on the agenda of politicians and employers, and although it has not come off the agenda of trade unions, it is actually much more fundamentally a part of their bargaining agenda, and we have done that through promotion, getting people aware of the problem, engaging leaders in committing to solve it, capacity building, producing tool kits, working with people to use those tool kits and doing research to measure progress and making people aware of the problems as we go. On pay, at this stage in time, if we only had the enforcement role we would not have succeeded in getting it back on the agenda in that way.
  (Ms Watson) I think there may be a parallel there with the idea of the Human Rights Act and positive obligations where public authorities do need to understand the positive obligations they have and so the range of tools that we and others have developed working with, whether it is employers or public sector, would have relevance there because that does engage people in understanding it and seeing how they can comply it within their organisation.

Lord Lester of Herne Hill

  375. In approximate terms, what proportion of the budgets of each of the commissions is devoted to assisting individual cases or compliance in the sense of formal investigations as distinct from the wider promotional activities? What does that tell us about the priority attached to the enforcement activities in each commission?
  (Mr Massie) When you say it is an enforcement, it has to be put in context because our helpline handles 80,000 calls a year, and then we have case workers behind that and we have set up a conciliation service to keep things away from courts, if we can, but we bring about 70 legal cases a year. In the promotion, we have already produced a code of practice for the access duties in 2004, and next week we will produce two codes of practice for education and quite a lot of work is going on at the moment in leaflets and talking to the teachers' unions, etc, about the new duties that will come in from September of this year. So the two lines do need to go together; it is the only way we can really get progress. What we have found with the education codes of practice is that, from where we started doing this last year, by working with all the stakeholders in the education field including disabled people and disabled young people, we know they will be welcomed because all the stakeholders have been involved in writing them. That is very important because, when they come to be used in tribunals or boardrooms, we know people will be on board with the basic messages.

  376. I was really asking a factual question with the judgment at the end of it. It may be the best way would be to answer in writing but it would be helpful to know, roughly out of a budget of X, how much is spent on existing cases and on formal investigations and what it says about priorities.
  (Mr Singh) We are just reconfiguring the budget and the figures break down as follows: 15 per cent complaint aid, 25 per cent law enforcement and formal investigations, and 45 per cent promotional work. The rest would be support service costs for the organisation.
  (Ms Mellor) In terms of staff employed in our legal and advice section plus non pay elements of budget devoted to that work, like outhouse solicitors and barristers, it is roughly £1.25 million out of a £7 million budget. On top of that, in terms of making people aware of their rights and transferring our expertise to other lawyers who may be providing advice and representation to individuals, we use our helpline and our website. We are developing a specific website for lawyers, and we are running a campaign this year, for example, on rights and responsibilities for both employees and employers to understand the framework of rights, so there is additional expenditure that relates to our enforcement activity but those are the specific figures for the legal teams.
  (Mr Massie) We spend twice as much on promotion as we do on enforcement.

  377. Before leaving that, is it not really correct that, looking back over quarter of a century's experience, none of the commissions ever have taken strategic law enforcement in the way the original White Papers envisaged? That there has been a general reluctance to use all the powers and to do it in other ways? This may be right or wrong, but would that be fair?
  (Mr Singh) I think you may be being slightly harsh—

  378. I was not being harsh.
  (Mr Singh) Sorry. It was a question. I think if you look at the CRE's work you could look at over 100 formal investigations, some of which have been hugely strategic. I remember one investigation into the London borough of Hackney's allocation policies in the early 80s—hugely strategic; a major issue which I think led to serious change across the public sector and there were many investigations like that, so I would say that we have used law enforcement powers at a strategic level to secure real change. At times it does not appear to be that systematic but most certainly, in the early days of the 25 years, it was the case that we used law enforcement very effectively.

Mr Woodward

  379. I would like to pick up on some of the gaps in human rights' protection at the moment. When the Human Rights Act was introduced the government talked about wanting to create a culture, and one of the things we have become aware of are some of the gaps; we are really mindful of what you all do at the moment but equally mindful of the opportunity that may come through the enlargement of a big commission, just to test really where these gaps sit. The first one I want to ask about is based on the Equal Opportunities Commission having told us that it does not deal with domestic violence issues, is that right—broadly?
  (Ms Watson) Yes.


 
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