Joint Committee On Human Rights Sixth Report


THE STRUCTURE OF A COMMISSION

Human Rights and Equality

168. The first structural issue we consider is the impact of the decision to establish a new single equality body in Great Britain on proposals for institutional arrangements for the promotion and protection of human rights.

169. The right to equality of treatment without discrimination is a fundamental human right. Unjustifiable discrimination—indirect as well as direct —needs to be tackled by detailed measures. The Treaty of Amsterdam inserted a new Article 13 into the Treaty Establishing the European Community which allows the Council of the European Union to "take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation". Two Directives were made under Article 13 in 2000, relating to race and employment.[113] The Government has decided to implement them by regulations made under the European Communities Act 1972.

170. In response to these new legislative requirements, the Government has decided in principle to establish a single equality commission in Great Britain in place of the three existing equality agencies. When the new single equality body is established, it (and the Northern Ireland Equality Commission) will have duties, functions and powers in relation to the new Directives, in addition to those of the present equality agencies relating to race, disability and gender. One important issue we have had to consider is whether any such commission should be given responsibility for human rights beyond the right to equality itself, and how the new single equality body should relate to the human rights commission we propose.

The Single Equalities Body Project

171. In December 2001, the consultation paper Towards Equality and Diversity: Implementing the Employment and Race Directives was published.[114] In it the Government commented—

We think there are good arguments to move, in the longer term, towards a single Equality Commission. Such a commission could offer support to individuals and business covering discrimination on all aspects of equality.

We took evidence from the Minister responsible for the cross-cutting equality issues, Barbara Roche MP, on 20 May 2002.[115] Shortly before she appeared before us, the Minister had announced the Government's decision that it would move towards the establishment of a single equalities body, and that a project team had been established to work up further proposals. Its terms of reference included a requirement to—

... consider the relationship between possible new arrangements for promoting equality and those for promoting and protecting human rights more widely.[116]

172. In our interim report we noted that the case for a human rights commission and the question of arrangements for the promotion of equality being addressed by the Government were closely linked. In October 2002, the next consultation paper from the Single Equalities Project was published.[117] It noted the "complementary nature of equality and human rights" which was—

... reflected in the government's vision of a society based on fair and equal treatment for all and respect for the dignity and value of each person.[118]

It also noted the distinction that has historically been made between the focus of human rights on fundamental civil and political rights, designed to safeguard the individual in their relationship with the state, and the focus of equality legislation on social and economic protection, in particular protection from discrimination in employment and in the provision of education, goods and services. But it also recognised that—

... discrimination law is beginning to go beyond regulating relationships between individuals: for example the Race Relations Amendment Act 2000 placed obligations on public authorities to promote equality of opportunity for all races across the breadth of their activities ... Similarly, one of the Human Rights Act's aims is to drive cultural change, placing obligations on public authorities but also increasingly on individuals.[119]

The document did not propose any specific questions for those consulted to respond to. The Government has indicated that it will publish a further consultation paper on the way forward in the Spring of this year. It has also indicated that no actual institutional changes will be made before 2006.

173. This report constitutes our formal input into the Government's consultation on the structure of a single equality body for Great Britain.

Promoting Equality and protecting Human Rights

174. The original call for evidence issued by our predecessors pre-dated the decision to move in the longer term towards a single equalities body. The majority of respondents at that stage supported the retention of the existing equality commissions as independent bodies, and argued that the relationship between a human rights commission and the equality commissions should be formally defined by way of a protocol or memorandum of understanding. Charter 88 proposed that the work of the existing equality commissions could ultimately be brought within the remit of the human rights commission, although as a discrete area of its jurisdiction. However, they all recognised that a human rights commission would have to work closely with the equality bodies—

We would wish to see cross-fertilisation in law, policy and promotional work.[120]

... the overriding consideration should be comprehensive coverage of human rights issues.[121]

The Equal Opportunities Commission, however, suggested that a re-examination of the equality commissions' remits and relationship with a human rights commission would be necessary in the future.[122]

175. The Government's decision to establish a new single equality body in Great Britain[123] has forced a reconsideration of these positions. The Equal Opportunities Commission, its Chair thought—

... would support institutional arrangements that ensured that human rights can be dealt with in the way we envisaged when we supported the creation of a human rights commission; that there is a body that can handle the promotion and some enforcement activity around the broader human rights agenda.[124]

The Chair of the Disability Rights Commission then held the view that—

When it comes to human rights and a human rights commission, we would prefer to see a separate body working very closely with whatever body or bodies emerges from the current debate. Failing that, we do see some value in the approach of having an overriding human rights commission with equality strands within it.[125]

All agreed that human rights issues were increasingly relevant to their equality work—

The Human Rights Act is of tremendous importance to disabled people and to DRC's work. We see the Human Rights Act and equality as being linked. You cannot enjoy many civil rights unless you have human rights ... for many disabled people it really is a matter of life and death[126] ...

Our difficulty ... is that we are constrained by what we can do to promote a culture of human rights.[127]

... it has got us to examine carefully how to use the Human Rights Act to extend the types of cases and the arguments that we use, for example strengthening claims around hours of work; and combining the Sex Discrimination Act and the Human Rights Act article around the right to family life.[128]

176. We asked a number of interested parties what the implications for their work were of the proposal to create a single equality body, and the implications of that for the case to establish a human rights commission. We were told—

We know from our own experience that the public are much more persuaded to support the rights of lesbians and gay men if the claim for such rights is situated in the context of the more universal values of human rights and equality ... At present in this country there is no public body that can act as an advocate for human rights. In our view this seriously weakens the government's attempts to challenge discrimination against minorities. The principle of equality can only have real effect in our society if it can be demonstrated that it is the right of every citizen, not a series of special measures to protect certain groups.[129]

¼ the HRA is not just important because it provides a framework in which mental health professionals can make decisions which impinge upon an individual's rights and freedoms, by balancing the rights of the individuals involved. It also has a crucial role in ensuring that individuals who happen to have mental health problems are central to any decision making about their care and treatment and are treated with the same respect and dignity as other members of the care team.[130]

¼ we should be thinking pro-actively and positively in terms of the Human Rights Act and embedding the ethos into everyday practice and work. In other words, assessments for community care should be incorporating values which give a person respect and dignity in their choice of way of living, family life, privacy, etc.[131]

The evidence ¼ demonstrates that a Human Rights culture does not yet exist in those fields where older people's rights are most at risk. Some of the circumstances ¼ relate not to individual actions but to an abuse of human rights which is 'built in to the system' ... those responsible for operating the system—devising the policies, managing the services and training and managing staff—do not as yet appear to take the principles of the Human Rights Act fully into account.[132]

The unique need of Gypsies and Travellers are often over looked by public bodies ... Travellers have: the highest infant mortality rates, the lowest life expectancy, appalling accommodation provisions, the highest illiteracy rates, the most racist press coverage ...[133]

... even the most extensive application of equality measures will not impact on most situations where older people's human rights are at risk. [For example] lack of access to medical care and suitably qualified staff in residential and nursing homes can put the lives of older people at serious risk.[134]

The trafficking of women for the sex industry is clearly a violation of those women's human rights. There is not a lot [the EOC] could do about that ¼ There may be issues around the provision of services to people who are carers looking after vulnerable or older dependants ¼ it is clearly an Article 8 issue because it is around family life. There are issues ... around protection of vulnerable witnesses in court, particularly in cases of rape and sexual assault ... Those are human rights issues ... which, again, we might not be able to take on. Without a human rights component those things will fall into a gap.[135]

Clearly the Race Relations Act would cover deaths in custody ¼ if there was a race or an ethnicity characteristic attached to it ... but most certainly we would not be able to pick it up if that was not the case and therefore that would be the gap. In the same way as with bullying in a school environment, or exclusion is another example, if we were talking about exclusions within schools then clearly we would pick up the disproportionate nature of African-Caribbean boys being excluded but not the principle per se ...[136]

177. Few would argue then that the agenda of the new equalities body and that of any human rights body would overlap. In Equality and Diversity: Making it happen, the Government has set out a 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. It notes that now equality legislation is to cover age, sexual orientation and religion and belief, as well as race, gender and disability, the vision can be protection for all rather than 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.[137]

178. This does not sound so very different from the hopes expressed for the Human Rights Act before and after it was passed. Although the proposed new legislation on age, sexual orientation and belief is directed at equality in employment and vocational training, the existing equality commissions have developed an equally strong focus on equality in the provision of services, particularly by public authorities.

179. The differences and similarities between the agenda of any proposed human rights commission and the proposed single equality body could be tabulated as follows.

The work of a human rights commission would be:

The work of the proposed single equalities body will be:

u inclusive of the whole population, while recognising that particular groups are especially vulnerable to violations of their rights.

u inclusive of the whole population, while focussed on the need to address the specific discrimination experienced by particular groups.

u focussed on Convention rights, but also taking into account a wider range of rights including those embodied in other international human rights instruments., some of which will have a stronger association with equality than others.

u focussed on rights under domestic discrimination legislation and European law, but also taking into account the discriminatory violation of the human rights of particular groups, and international human rights instruments relating to the elimination of discrimination.

u focussed on the power of public authorities over, and their obligations towards, the individual, and on discrimination in access to civil and political rights, but also taking into account the rights of those employed by public authorities, and the protection of individuals or vulnerable groups in the enjoyment of their rights.

u focussed on the duties of private and public employers towards individuals and groups and on the obligations of private and public service providers to individuals and groups, but also taking into account the opportunities for individuals and groups to exercise their civil and political rights without discrimination.

ufocussed on promoting cultural change and the mainstreaming of human rights principles into policy and service delivery to forestall infringements of individual rights , but also on protecting individuals' rights through raising awareness and giving guidance on seeking redress.

u focussed on protecting individuals' rights and the enforcement of detailed legislative provisions, but also on promoting systemic change and the mainstreaming of equality principles into policy and service delivery to forestall discriminatory practices.

ufocussed on promoting the idea of positive obligations under the Human Rights Act.

ufocussed on enforcing the general statutory duty under the Race Relations (Amendment) Act.

ufocussed on government and other public authorities as service providers, but also as employers.

u focussed on employers and service providers, but also on government and other public bodies as employers and as policy makers.

180. There is a considerable degree of congruence between the work required for the promotion of equality and that required for the promotion and protection of human rights. There are also divergences. As the then Chair of the Commission for Racial Equality commented—

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 ... 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 ... much of it is about individuals as individuals or against private sector organisations.[138]

If the promotion of equality is focussed on legal remedies for discrimination in employment and the advancement of the economic status of disadvantaged groups, the relevance of human rights may be marginal. If, however, there is an equal focus on access to public services, the relevance of human rights is much more apparent (for example the right to life, the right to education, the right of access to information, the right to privacy, the right to be free from degrading treatment).[139]

181. To the extent that human rights are seen as essentially confined to civil and political rights— focussing on such areas as the protection of freedom of speech, the right to liberty and to a fair trial, the right to peaceful assembly, the right to property, and so on—the overlap with the concerns of the equality agenda may seem slight. But, for example, conditions in residential institutions for the elderly, the young and mentally ill, bullying at school and at work, school exclusions, discrimination in the provision of healthcare, differential access to the right to marry and found a family and the conditions in which people in custody are held all also engage human rights questions as embodied in the core civil and political rights.

182. In short, it is possible to construct agenda that put the priorities of the equality bodies and those of a potential human rights commission at different ends of a spectrum which has group rights and economic rights at one end and individual rights and civil and political rights at the other. Or it is possible to construct agenda in which the priorities of each are intermeshed. Just as there are some aspects of equality that are particular to one group and have little resonance with other disadvantaged groups—for example equal pay for women or reasonable accommodation to the needs of people with disabilities—there are some aspects of human rights that have little resonance for some or all of the groups covered by equality legislation. However, while for example privacy issues may not be a particular concern for ethnic minority communities, it may be for disabled people and older people among them. And while the right to family life may not be a prime concern for most religious minorities, it could be for gays and lesbians, or for members of ethnic minorities trying to secure family union through the immigration system, or for older people in residential accommodation.

183. The most obvious gap in the protection offered under the proposed legislation implementing the European directives is that discrimination on grounds of age, sexual orientation and religion will only be prohibited in relation to training and employment, and will not cover (at least in the initial stage) discrimination in provision of goods and services. The most effective way to tackle the majority of these gaps would be through the introduction of a comprehensive single equality Act.[140] But the Human Rights Act could also help to close this gap, providing protection for example in relation to health care (right to life, degrading treatment) and in relation to education where discrimination is not the issue. It also provides protection from discrimination in the criminal justice system.

184. The Disability Rights Commission has been the most active of the three commissions in pursuing these "gap" issues. Two thirds of disabled people are not in employment. A report published in September 2000 sought to identify some of the key human rights issues for disabled people—

The Human Rights Act ... has particular significance for disabled people. As this Report says, the fact that disabled people have the same human rights as other people is not something that society has historically been able to take for granted. The withdrawal or restriction of medical services, the abuse and degrading treatment of disabled people in institutional care, and prejudiced judgements about the parenting ability of disabled people are just some of the areas where the Human Rights Act may help disabled people live fully and freely, on equal terms with non-disabled people ... Article 2, which guarantees the right to life, will have a direct impact on the service disabled people can expect in the health system ... Article 3 protects disabled people against inhuman or degrading treatment ... Article 5 provides for the right to liberty. It is relevant to people with mental health problems who are compulsorily detained and to other disabled people in institutional or community care ... Article 6 provides rights of due process in criminal and civil cases ... For example, if someone who is deaf is a witness, or is arrested, it could ensure better police training in communication and more consistent access to interpreters ... Article 8 protects the right to private and family life and Article 12 the right to marry and found a family. These articles will have the most widespread implications for disabled people and will challenge current policies and practices of local authorities, which have the effect of making it virtually impossible for some disabled people to have and raise children. Rights to fertility treatment, the sterilisation of young women with learning disabilities, the rights of severely disabled people to live independently, and rights of adoption are among relevant issues. Article 8 should help protect disabled people from invasion of their privacy and from intrusive and insensitive treatment. It should assist claims to live at home rather than in residential care: for example many people with physical or multiple impairments are living in nursing homes when they could, with support, live independently ...[141]

185. The BIHR report, Something for Everyone, looked at the experiences of children, older people, disabled people and refugees. On disabled people, the report records some systemic problems of rights violations for disabled people—

There are long time delays in carrying out their assessments, drawing up appropriate care plans and agreeing service provision. The failure to provide appropriate and timely care and support could in some cases amount to a violation of the client's personal integrity—both physical and psychological integrity ... In relation to care homes, people have their time organised for them. The sort of things you want to do in your own home can't happen. Things like transport provision are usually for the convenience of the provider, not the user. We know of cases [in residential settings] where people have been left in their own excrement, where they are put to bed at five o'clock in the evening, where they are not allowed to watch TV in the evenings ... In relation to benefits appeal tribunals, I'd question whether people get a fair trial ... deaf people in prison, who rarely get parole, these prisoners tend to serve a longer sentence than hearing prisoners. When they come up for parole review, people say, "well, you haven't made any attempt to improve yourself while you've been in prison, you've done no courses, you've done no training". Well they haven't because there's no interpreter provided, and they're stuck in that vicious circle, and they end up staying in prison longer.[142]

The report's section on disabled people concluded—

... there is a gap which the Human Rights Act should fill, which may in part be caused by the inability of the Disability Rights Commission to take cases under the Human Rights Act ... The failure of equality legislation to tackle discrimination in the provision of statutory services means that there is little that the Disability Rights Commission can do to tackle entrenched attitudes within the criminal justice system.[143]

186. On older people, the BIHR report cited some quite extraordinary examples of treatment by public authorities which violated people's right to privacy, to be protected from degrading treatment, and even their right to life. It concluded—

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.[144]

187. Both the new European Directives acknowledge in their preambles that the right to equality before the law, and protection against discrimination for all persons, is a fundamental human right. Additionally, all UK equality law has to be applied subject to the Human Rights Act. The courts must take into account the Strasbourg jurisprudence, and all legislation must be interpreted and given effect to in a way that is compatible with Convention rights so far as possible. For example the Employment Directive makes provisions in respect of "religion and belief" will have to be interpreted by the courts in the light of Article 9 jurisprudence. Like the courts, a single equality body, also subject to the Human Rights Act as a public authority, will have to balance different interests and to make a proportional judgement, for example between conflicting rights in the area of religion and belief and issues of gender and sexual orientation. These will involve judgements about freedom of belief, freedom of expression and the right to family life.

188. This human rights dimension is an unavoidable element of the debate on the single equality body. There is wide agreement that the equality commission should at least be able to address the human rights dimension of individual discrimination cases. The relationship between human rights and equality in the new institutional structures has to be resolved. It is clear, as we said in our interim report, that any attempt to determine the future of the structure in the UK for the promotion and protection of equality which does not also address how to promote and protect human rights would be "incomplete, incoherent and ineffective". The question now is not whether there should be arrangements for the promotion and protection of human rights sitting alongside those for the promotion of equality, but how those arrangements should be designed. What are the options?

Options for the Institutional Arrangements for Equality and Human Rights

189. The Government has announced that it has come to a settled view on the establishment of a single equality body. We take that as our starting point, without expressing any view on whether that was the correct decision. In that context, we have concentrated upon four main options for equality and human rights institutional architecture—

  • an Equality Commission that also has regard to other human rights relevant to its work in tackling unjustifiable discrimination and promoting equality of opportunity, but no separate human rights commission;

  • two separate Equality and a Human Rights Commissions, however configured in relation to the two models for an equality body outlined above; and

  • a single Human Rights and Equality Commission.

We consider the advantages and disadvantages of each model in turn.

An Equality Commission alone

190. The minimum outcome of the single equality body project would be single equality commission with minimal, largely inferential, human rights responsibilities, and no separate human rights commission. The Human Rights Act would be enforced solely through existing mechanisms such as the courts, and the culture of human rights would be promoted only through the efforts of the Government's Human Rights Unit, NGOs and this Committee. From the human rights perspective this model, without any additional arrangements for the promotion and protection of human rights, clearly offers no answer to the need for better promotion and protection of human rights. The commission would be confined to tackling unjustifiable discrimination and promoting equality of opportunity, without having regard to human rights beyond the scope of the highly specific provisions of equality legislation. It would be unable to deal with human rights infringements in situations which do not amount to discrimination, for example—

  • forced marriages;

  • children's right to be heard in decisions about their health care;

  • decisions by doctors not to resuscitate without consent;

  • permanent exclusions jeopardising the right to education;

  • bullying of girls in schools by other girls in the same ethnic group;

No-one who has given evidence to us appears to support such a model. It does not provide an answer to the pressing needs we have identified above for a body to help create a culture of human rights.

An Equality Commission with a Human Rights Remit

191. The next option in terms of coverage of the range of human rights including equality would be an equality commission with express functions in relation to human rights so far as they related to discrimination. Otherwise, the Human Rights Act would be enforced solely through existing mechanisms. This option would remedy some of the disadvantages that made the first option unviable. The equality legislation underpinning such a commission could specifically require it, for the purpose of discharging its functions, to have regard to the international obligations of the United Kingdom in the field of human rights, and perhaps give the commission powers in relation to enforcement of Convention rights in respect of discriminatory treatment.[146] However, this option would not meet the pressing need that we have identified for a commission able effectively to protect and promote the wide range of civil and political, and economic and social, rights, beyond the right to equality. It could answer the stated needs of the current commissions for powers to tackle human rights violations in relation to the groups with which they are concerned. It would not, of itself, answer the need for a human rights commission—substantial areas of human rights would still have no independent body other than the courts and Parliament to promote and protect them. It is likely that the impact on the delivery of public services would be minimal.

Separate Equality and Human Rights Commissions

192. Either of the above models could in theory be combined with a separate human rights commission, with responsibility for those areas that would still lie outside the remit of the single equality body.

193. The main practical advantage we perceive in either of these arrangements is that it would free the two new bodies from the danger of being overwhelmed by the extent of their remits. The main practical disadvantage is really just the reverse of the same coin. We have noted above the very large degree of overlap in real life between the work of an anti-discrimination body and that of a human rights body. The degree of overlap between the missions of the two new bodies would mean there would have to be arrangements put in place in order to avoid inefficient duplication of effort or institutional rivalry, and to provide shared access to expertise and experience useful to both institutions. Such a model could also restrict or preclude shared use of services which could well be cost-effective, particularly in outreach and education, but also in legal advice and administrative support. Perhaps most importantly, there would not be a single gateway to help for citizens and other bodies (including employers and service providers) seeking advice and assistance with real life problems. We have no doubt that arrangements could be designed to overcome this divide, but it is not at all obvious to us that the practical advantages which might come from this institutional arrangement would outweigh the practical disadvantages it could produce.

194. Combining a separate human rights commission focussing on Convention rights and other human rights but not expressly focussing on freestanding equality issues, with an equality body focussing on the equality issues including the new grounds, but which had no human rights remit, would have the theoretical advantage of clarity of mission for each. This is closest to the Northern Ireland model. We are not at all persuaded by the experience of that body that the division works in the interests of human rights. Nor are we convinced it would meet the stated needs of the anti-discrimination commissions for functions in relation to the Human Rights Act. If we were starting from the position where there were still to be three or more separate anti-discrimination commissions, or even a pre-existing single equality body, this would have appeared to be the neatest and simplest answer. But that is not our starting point any longer. It does not appear necessarily to be the most efficient answer to designing a human rights commission at the same time as one is designing a new equality body—indeed it could be open to accusations of creating a wasteful duplication of resources.

195. The alternative dual institution model is one in which an equality body with express human rights functions has alongside it a human rights commission dealing with the residual human rights functions. The liaison arrangements described above would still, however, be required, and the potential for unnecessary duplication of resources is likely to be exacerbated. There might also be disparities (not necessarily indefensible) in the protection offered against breaches of the human rights of particular groups and that available more widely. But our main disquiet is that this arrangement would leave the human rights body divorced from many of the mainstream concerns of citizens. We do not believe this would be to the advantage of either the priorities of the equality agenda or of a human rights culture. The greatest risk, we fear, is that the human rights body would be in danger of being depicted (not only outside Government circles) as the champion largely of the criminal, subversive, alien or just plain eccentric, and standing in opposition to the state and the interests of the majority of its citizens. People such as these share the human rights that protect us all, but there is a view, given vivid expression by a tabloid newspaper, that the Human Rights Act is—

¼ a charter for terrorists, violent criminals, drug dealers, nonces, assorted troublemakers and chancers.[147]

That perception is wrong. Human rights are for everyone.

196. The resulting equality body might in theory benefit from such an arrangement, being able to tackle the human rights violations suffered by the most vulnerable groups in society while being able to divest itself of some of the more challenging and controversial problems in reconciling conflicts and balancing rights. But under this arrangement the new equality body would relinquish much of the benefit of being able to claim that the rights it was promoting were the concern of all rather than the expression of sectoral interests.

197. The resulting human rights body could, in our view, also be quite seriously disadvantaged. Our case for a human rights commission depends on the need we have identified for the promotion of a culture of respect for human rights in public authorities and in society more generally. A human rights commission would be hampered in this mission if it was cut off from involvement in many of the day-to-day concerns of citizens going about their lives—concerns about, for example, their equal treatment at work, the care of their elderly parents or disabled children, their equal right to observe their religious practices and express their beliefs at work or at school, their equal access to education, and so forth.

A Human Rights and Equality Commission

198. At the highest level of institutional integration would be a single human rights and equality commission, with comprehensive responsibilities for promoting and enforcing equality and human rights. This would overcome the disadvantages we identify above but, on the other hand, it would risk saddling a single commission with too wide a range of duties, functions and powers, and of blunting the cutting edge of a more specialised and focussed equality body.

199. Those who are sceptical of this integrated model fear it would lead to tension within the institution. It almost certainly would. But there will in any event be tensions between the six equality "strands" within a single equality body, with or without human rights responsibilities. Even without responsibility for human rights protection, the single equality body will find that the rights of the minorities it protects can conflict. Promoting the right of older people to hold on to their jobs, for example, could conflict with the need to redress the disproportionate unemployment, or lack of promotion, amongst ethnic minorities, or the need to break through the "glass ceilings" which block women in their career progression. The freedom which religious groups retain to discriminate against gay and lesbian employees may bring the principles of religious freedom into conflict with those of non-discrimination. In relation to one particular disadvantaged group, we were for example told—

There are many ¼ situations where the balance of one right against [an]other and the boundaries between them cause misunderstandings for individuals and difficulties for mental health professionals - for instance the right to confidentiality and the right to receive information; the rights of mental health service users and rights of carers, the limits to the right to control correspondence. In all these instances the expertise and guidance from a human rights commission would give much needed help with day-to-day problems.[148]

The new equality body, regardless of whether it has responsibility for human rights, will need to develop a culture in which these tensions can be resolved. On the positive side, with the human rights responsibilities conjoined with the equality functions, using a human rights framework could help provide a methodology to enable the differences to be reconciled.

200. It might reasonably be feared that an integrated body would simply have too much to do. Any new single equality body certainly faces a formidable challenge, though one which we should note that the Northern Ireland Equality Commission appears to have risen to (on a smaller scale) with some success. But we should also recognise that putting human rights in the mix will be a reconfiguration of, rather than a multiplication of, the challenge. The champions of each of the six equality "strands" express fears that their concerns will be the most controversial, least recognised or least popular. There are also concerns that the priorities of the human rights agenda could swamp or marginalise those of the equality agenda within an integrated institution. In our view, reinforced by our study of integrated commissions elsewhere in the Commonwealth, the risk lies the other way—it is more likely that human rights will receive less attention and resources. However, it is undeniable that a broad human rights remit would bring with it additional competing concerns to be reconciled with scarce resources. At the same time we should recognise that in practice, while some issues would clearly engage discrimination issues and others would clearly engage human rights questions, many would engage both—for example, an inquiry with an age focus with a human rights dimension or a human rights inquiry with a strong focus on race and religion and belief. The integrated commission may have the ability to adopt a more holistic approach than two separate bodies could, for example to a situation engaging discrimination on grounds of age, systemic failure in services to people with a disability, and deprivations of fundamental rights—

Another much neglected issue is that of the mental health of children and young people. Specialist services are inadequate and legislation to protect their rights not in place. Attempts to have this attended to in the Mental Health Bill are unlikely to succeed partly because of lack of expertise in government. Children's rights and mental health are ¼ linked directly to policies and practice on homelessness. A human rights commission would be well placed to take a holistic approach to this issue.[149]

One Commission or Two?

201. To some extent then, the choice of institutional arrangements is a practical one. Whether it would be better to have separate institutions for equality and human rights depends upon the nature and extent of the additional duties, functions and powers that would be given to a single human rights and equality commission over and above those of a single equality body and on an assessment of the likely impact of locating those in one body, since it is essential that the focus on the very demanding and specialised tasks required of an effective equality commission should remain. On this question, the arguments for one or two institutions are finely balanced, though ultimately they can only be hypothetical.

202. The main disadvantage of creating two separate commissions, one dealing with equality and the other with the rest of the human rights agenda, is that it would create an institutional divide weakening the interdependence and indissolubility of human rights.

203. A powerful argument for bringing all strands of the human rights agenda into a single body is that this would strengthen the ability to promote a culture that respects the dignity, worth and human rights of everyone. Provided that this were done in a way that did not blunt the cutting edge of the specialised compliance work in tackling unjustifiable discrimination by means of monitoring and law enforcement, we consider that, on balance a single body would be the more desirable of the two options. However, the option of creating two separate bodies that has been used both in Northern Ireland and in the Republic of Ireland, would be a viable alternative, provided that they were closely linked in their work.

204. The Government's consultation on a single equality body proposes essentially three options—a fully integrated commission, a "single gateway" in front of the existing bodies, or an "overarching" body. The promotion and protection of human rights could be integrated into any of these models in principle—although the latter two would require the establishment of structures to accommodate specific human rights personnel and expertise (as it would for the three new "strands").

205. Whichever model is chosen, we recognise that some thought will be needed to integrate it into the UK-wide context. We now consider these problems.

Devolution Issues

206. The original title given to this inquiry by our predecessors was A Human Rights Commission for the UK? Devolution, and its attendant institutional changes, presents a complicated challenge in designing the institutions for the protection and promotion of human rights within the UK. The Human Rights Act applies throughout the UK, and it is the UK Government that is bound by the European Convention on Human Rights and the other international human rights instruments. We consider some of the problems raised by the division of responsibilities, and some potential solutions, in this section.


113   2000/43/EC and 2000/78/EC. These must be implemented by 19th July 2003 and 2nd December 2006, respectively. Back

114   Cabinet Office, Department of Trade & Industry, Home Office and Department for Work and Pensions, December 2001. Back

115   Twenty-second Report, Session 2001-02, op cit, QQ 182 to 243 Back

116   See www.womenandequalityunit.gov.uk/equality Back

117   Equality and Diversity: Making it happen, Cabinet Office, Department of Trade & Industry, Home Office and Department for Work and Pensions, October 2002 Back

118   ibid., para 9.3 Back

119   ibid., paras 9.5 and 9.6 Back

120   Commission for Racial Equality, Twenty-second Report, Session 2001-02, op cit, Ev 95 Back

121   Equal Opportunities Commission, Twenty-second Report, Session 2001-02, op cit, Ev 104 Back

122   Protocol 12 establishes a free-standing right not to be discriminated against on a wide range of grounds and Article 13 provides the legal base for EU legislation to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. Back

123   In Northern Ireland, there is already an Equality Commission with responsibility for all areas of discrimination legislation. We visited the Commission in February 2002. Back

124   Twenty-second Report, Session 2001-02, op cit, Q 357 Back

125   Twenty-second Report, Session 2001-02, op cit, Q 358 Back

126   Twenty-second Report, Session 2001-02, op cit, Q 353, Chair of the Disability Rights Commission Back

127   Twenty-second Report, Session 2001-02, op cit, Q 353, Chair of the Commission for Racial Equality Back

128   Twenty-second Report, Session 2001-02, op cit, Q 353, Chair of the Equal Opportunities Commission Back

129   Stonewall, Twenty-second Report, Session 2001-02, op cit, Ev 218 Back

130   Camilla Parker, Ev 306 Back

131   Emily Holzhausen, Carers UK, 24 January 2003 Back

132   Help the Aged, Ev 316 Back

133   Friends, Families and Travellers Information Unit, Ev 300 Back

134   Help the Aged, Ev 311 Back

135   Equal Opportunities Commission, Twenty-second Report, Session 2001-02, op cit, Q 385 Back

136   Commission for Racial Equality, Twenty-second Report, Session 2001-02, op cit, Q 381 Back

137   Equality and Diversity: Making it happen, op cit, para 1.2 Back

138   Twenty-second Report, Session 2001-02, op cit, Q 364 Back

139   The focus of the anti-discrimination bodies on public authorities has been recently reinforced in relation to race where the Race Relations (Amendment) Act 2000 placed a positive duty on public bodies to promote race equality in their services as well as in employment. The Act inserts a new section 71(1) in the 1976 Race Relations Act as follows: "Every body or other person specified in Schedule 1A or of a description falling within that Schedule [public bodies] shall, in carrying out its functions, have due regard to the need-(a) to eliminate unlawful racial discrimination; and (b) to promote equality of opportunity and good relations between persons of different racial groups". The other commissions are seeking a broadening of the scope of the statutory duty. Back

140   A Private member's bill introduced by Lord Lester of Herne Hill, a member of this Committee, was given a Second Reading in the House of Lord on 28th February 2003. Back

141   The Impact of the Human Rights Act on Disabled People, Rowena Daw for the Disability Rights Commission and the Royal National Institute for Deaf People, September 2000, p i, pp 1 to 3 Back

142   Something for Everyone, op cit, p 37 Back

143   ibid., p 44 Back

144   ibid., p 56 Back

145   Sarah Spencer, Ev 289 Back

146   See clause 39 (2) (a) of the Equality Bill, HL Bill 19 of Session 2002-03 Back

147   Richard Littlejohn, The Sun, 18 October 2002 Back

148   Mind, Ev 341 Back

149   Mind, Ev 340-1 Back


 
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