Joint Committee On Human Rights Sixth Report


72. Memorandum from Sarah Spencer, Institute for Public Policy Research

  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 fights 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. Nor was there sufficient agreement among stakeholders. Ministers intend to give the relationship between equality and human rights further thought before coming to a decision.

  This paper is intended to assist in that process. It considers the Governments vision for equality and parallel vision of a human rights culture, and the respective functions that have been proposed for a single equality commission and, by those outside of government, for a commission or commissioner 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, EOC and DRC 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 if it failed to do so the proposals would "likely be incoherent, incomplete and ineffective".[1]

  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 as well as race, gender and disability, the agenda can be protection for all, not a series of 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 policies and the practices of government and public bodies; and that there are a wide range of additional employment and social policies designed to address inequality such as New Deal, the Minimum Wage or the Scottish Childcare strategy.

  The role of the SEB is intended to fit within that wider matrix of initiatives to address inequality and social exclusion. 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 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 organizations

    —  promote good practice among business and other organisations, to a greater extent than by the current commissions

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

    —  undertake investigations where appropriate

    —  take enforcement action where needed

  It is also anticipated in the paper that, to a greater extent than happens at present, the new body will:

    —  foster strong local networks to help tackle barriers to inequality at source

    —  work in partnership with a wide range of stakeholders; and have

—  effective, streamlined arrangements making the best use of resources

  Although the new legislation on age, sexual orientation and religion 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 single statutory body whose role will complement the Government's wider economic and policy levers for promoting equality and social inclusion.

  Consultation among stakeholders has found that there is a difference of emphasis on where, within this agenda, the focus should lie. While some see the new body as primarily individual victim centred, assisting and empowering individuals to received redress, others focus on group justice, wanting the new body to give priority to combating systemic discrimination against disadvantaged groups. Finally, for many the priority is culture change in the 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), or safeguards for suspects in custody.

  Ministers stressed that, while the Human Rights Act does provide further remedies for individuals in the courts if their human rights are infringed, the intention was also that the Act should also have a significant 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. Not withstanding the transfer of responsibility for human rights from the Home Office to the Lord Chancellor's Department, and the continuing dominance of the human rights debate by lawyers, Ministerial and NGO interest in human rights as culture change remains a dominant theme.

  Thus Lord Irvine, the Lord Chancellor, said the Act "is going to operate as a very substantial culture change . . . We want a human rights culture to develop throughout society",[2] and Home Office Minister Lord Williams of Mostyn that: "Every public authority will know that its behaviour, its structures, its conclusions and its executive actions will be subject to this culture".[3] The then Home Secretary, Jack Straw, said:

    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. The Home Secretary said that 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 fit is to work together in unity and confidence . . . The Human Rights Act provides that formal shared understanding. [4]

  This role for human rights was reinforced in the recent White Paper on migration, Secure Borders, Safe Haven in which the current 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. [5]

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 HOC, said (prior to becoming a Minister):

    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 rights have 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. [6]

  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. [7]

  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. [8]

  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".[9]

  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% 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 taken 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 integrated human rights within existing training and procedures, for instance those relating to 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 HOC and a human rights consultant, has investigated the impact of the Human Rights Act on children, disabled people, older people and refugees and asylum seekers. [10]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 advocates 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 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 human rights within the employment relationship (for staff of public bodies), within the family, and on civic participation (freedom of assembly and 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

    —  Primarily addresses stakeholders who are government service providers but also public sector employers and, less directly, others exercising power over individuals

    —  Is underpinned by the domestic Human Rights Act, itself underpinned by the European Convention on Human Rights and 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 issues would appear to be these:

1.   Just how complementary are these two agendas? Do the differences outweigh the similarities?

  The answer depends on how we construct the equality and human rights agendas. If equality is primarily seen as about employment, and focuses on legal remedies for discrimination, the relevance of human rights is marginal. If, however, there s an equal focus on equality in public services—on which there are key issues for race, disability and age in particular, the relevance of the human rights agenda is much more apparent (right to life; privacy; avoidance degrading treatment; right to a fair hearing and so forth).

  Again, if we see human rights as in essence a civil and political rights agenda—focusing on freedom of speech, press freedom, surveillance or right to a fair trial—the overlap with equality may seem tenuous. Its focus is on limiting the power of the state, in contrast to the equality focus on employers. But human rights standards are not limited to traditional civil and political rights, nor to the powers of the state. They cover the power of employers over employees (whistle-blowing; surveillance of emails; religious freedom at work) and of parents over children (as in recent cases on physical punishment). More important for the Government's public service agenda, it covers conditions in residential institutions for the elderly, the young and mentally ill; bullying at school and at work; discrimination in healthcare, the effects of serious pollution on health care and family life; school exclusions, privacy and conditions for those in custody.

  Equally, the equality agenda does not only focus on private sector employers but on government and public bodies as employers and as service providers. That is, it is possible to construct narrow equality and narrow human rights agendas that are poles apart; or realistic agendas that overlap.

  There are some aspects of the different equality agendas that are specialised and have little resonance in the other equality areas: equal pay for women; reasonable accommodation for disabled people; pensions and compulsory retirement for older people; adoption for gays and lesbians. Equally, there could be aspects of the human rights agenda that would have little resonance for some or all of the equality groups. However, while human rights issues such as surveillance may have little resonance for older citizens, it does currently for Muslims, as do issues within the criminal justice system for Muslims and ethnic minorities. Privacy may not be a prime concern for ethnic minorities, but is for disabled people and older people. Right to family life is not a prime concern for most religious minorities, perhaps, but is for gays and lesbians, for ethnic minorities trying to secure family union through the immigration system, and older people faced with residential accommodation.

2.   Are there gaps which a human rights mandate would cover?

  Yes. The equality mandate only comes into play if the individual is part of a group that suffers unlawful discrimination on the basis of membership of that group. Ill treatment of white, able bodied, heterosexual men will thus not be covered (in any of the circumstances referred to above, for instance), unless that treatment is because of their gender. Those discriminated against on the basis of class, language or political opinion will not be covered, because they are not included within the six equality grounds—race, gender, age, religion, sexual orientation and disability—that the equality legislation in Britain covers.

  Moreover, human rights infringements of minority groups which do not amount to discrimination, would, as now, be outwith the mandate of an equality commission:

    —  domestic violence, forced marriages

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

    —  decisions by doctors not to resuscitate without consent

    —  denial of the right to vote because of lack of disability access

    —  permanent exclusions jeopardising right to education

    —  bullying of girls in schools by other girls

    —  separation of children in care from siblings in care too far away—and so forth.

  The more gaps that are identified, however, the greater the potential span of the new body were it to include human rights. Could the body end up dissipating its energy on too many issues? Only if its senior management failed to be strategic. The commission would identify those issues on which no strategic lead were being taken elsewhere, where a human rights approach could add value and lead to systemic change where other approaches have failed.

3.   Would an equality commission be weakened without a human rights mandate?

  Yes. There is wide agreement that the equality commission should at least be able to address the human rights dimension of individual cases. If the harassment an individual has suffered amounts to degrading treatment, or the treatment of a disabled person or elderly person threatened their right to life, the commission must be able to raise those arguments in the tribunal or court. But should this be the extent of the body's human rights mandate?

  In carrying out an investigation, for instance into a young offender institution or residential care, the commission would be looking for evidence of discrimination. The protection it provides will be inadequate if unable to inquire whether human rights had been infringed, such as degrading treatment, privacy or right to family life. There may have been no discrimination against any particular group if all inmates have experienced similar treatment?

4.   Could the equality and human rights agendas clash?

  Yes. The rights of one individual can often conflict with those of another, or those of a community as a whole: that is the nature of a human rights debate. Most rights are not absolute and have to be balanced with the rights of others. Thus, an absolute right to freedom of speech, allowing incitement to racial hatred, would conflict with the right of a black person to be free from harm and from discrimination—so it is accepted that freedom of speech has to be limited by the law on incitement to racial hatred. If the new body had responsibility for human rights, it can be argued that it would have expertise around the table on both of the competing rights to enable it to form a view on the balance that should be found between them. Others argue that managing such conflicts within the body could be divisive, but this applies equally to the six existing equality agendas.

  Even without direct 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 may conflict with the need to redress the disproportionate unemployment, or lack of promotion, of some ethnic minorities. The freedom which religious groups retain to discriminate against gay and lesbian employees will be a further tension, reflecting the conflict between religious freedom and non-discrimination.

  The new body, regardless of whether it has responsibility for human rights, will need a mechanism for resolving these tensions. Familiarity with a human rights framework that is used to reconciling conflicting rights would assist it in so doing. Human rights is the framework that would unite these disparate issues and enable them to resolve their differences.

5.   Is human rights too controversial?

  Some human rights issues are highly controversial. There are fears that reminding government and the public that even suspected terrorists or paedophiles have fundamental rights, for instance, would attract unwelcome opprobrium on a combined commission and weaken the authority of the body to promote equality. This perception is reinforced by the situation in Northern Ireland where the Human Rights Commission has found itself caught up in conflictual, community politics around civil and political rights while the Equality Commission has flourished with far greater political support.

  It is undoubtedly true that, where the commission protected the rights of unpopular individuals, it could be unpopular. But it would be a mistake to see this as applying to human rights alone. The CRE finds itself regularly in this position (in contrast to the Equality Commission in Northern Ireland where race is not the central issue). Moreover, issues of religious discrimination (not least in relation to Muslims and anti-terrorism measures) and relating to equality for gays and lesbians, will not be uncontroversial. Human rights would add to the controversial profile of the commission, but it would not be the sole cause. The leadership of the Commission would need to maintain a careful balance in addressing difficult issues in order to retain its credibility with the public and the confidence of the Government.

6.   Would a human rights remit make the body too legalistic?

  No. In the absence of a Human Rights Commission to promote human rights standards, the current focus is almost entirely on the law. Any profile for human rights issues is thus invariably on controversial court cases that hit the headlines. Not surprisingly, some fear that including human rights within an equality commission would give it a strongly legal focus at the very time that the equality agenda is shifting away from a preoccupation with cases to more promotional ways of achieving change.

  A human rights mandate could indeed focus on individual cases if the body were given a complaints adjudication function or mandate and resources to play a significant role in relation to supporting individual cases in public interest cases. But it seems likely that it would be given a mandate to parallel that on equality—a strong promotion, guidance on good practice function, with investigatory powers to use for cases of systemic abuse of human rights and equality standards; with a complementary power to assist individuals (or act as friend to the court—amicus) where in the public interest to do so.

7.   Would the body have too much to do? Could an equality issue, or human rights, be marginalised as a result?

  Each of the six equality issues already fears that it will be marginalised when brought within the single body. Each is concerned that its issue is the most controversial, least popular or that its importance is least recognised, and will have difficulty securing sufficient priority within a body where decision makers have competing concerns.

  Human rights would bring additional issues to compete for scarce time and resources. Managerial and accountability mechanisms would need to be in place to ensure that the body would be called to account from above (government, Parliament) and below (stakeholders, communities) on its priorities and resource allocation. In practice, however, while some issues would be clearly gender, age or human rights, many would be a combination—an age focus with a human rights dimension; a human rights inquiry with a strong focus on race and religion—and that should be the intention as issues do not separate neatly on the ground.

8.   Would the bureaucracy simply be too large?

  This is an understandable fear. The combined staff of the existing three commissions will be 590 (although many of those are not currently based in their head offices). If, hypothetically, an additional 150 staff were appointed to reflect the additional responsibility for age, sexual orientation and religion, the total staff would be 740 (of whom one third to one half might, on current form, be expected to be in the regions). This compares to the Audit Commission's 2,500, or 3,900 at the Health and Safety Executive, so the number in itself is clearly not too large for an effective statutory body. Would human rights add a significant number, relative to the whole? While those concerned to see the promotion of a human rights culture might hope that the number of human rights specialists would be significant, it seems unlikely. Moreover, compared to establishing a separate Human Rights Commission, combining these functions would save on duplication of core functions such as press, research and finance.

9.   Does the Government attach sufficient priority to promoting human rights to want to include it?

  This is difficult to know. On the one hand, the Government recognises that the promotion of a rights and responsibilities culture in which there is both more awareness of individual rights but also of the importance of protecting the rights of others, is a central part of its citizenship agenda. It wants citizens, not least young people, to show more respect for the rights of others and to understand the importance of so doing. It also wants vulnerable people, children, victims of domestic violence or those in institutional care, to be more aware of their rights and have access to adults in a position to protect them. It genuinely wants those providing public services equally to show more respect for those in their care, to avoid degrading treatment, accord people a fair hearing and so forth.

  On the other hand, the Government finds that its view on where the balance should be struck between the rights of individuals and those of society is not always accepted. It can find its decisions challenged in court by individuals, backed by NGOs, who believe that their rights have been unreasonably infringed. It may fear that a statutory body charged with promoting human rights would increase the risk of further challenge if the commission increased awareness of individual rights and supported contentious cases. It may think, nevertheless, that there would also be occasions when it could be helpful to government to be able to refer difficult issues to such a body for advice, if not into the long-grass, when an immediate solution to conflicting rights is not apparent.

10.   How might it work?

  Structure is a secondary issue but important if the body is to deliver its agenda strategically and effectively. Whether Commissioners should have designated responsibility for different strands, human rights included, and whether the organisation should be organised vertically according to issues (disability, age, human rights...) or horizontally by function (promotion, communications, legal...) is a question to be resolved with all of the issues in mind, not separately for human rights.

  The optimal structure for human rights would be one which ensured that humanrights questions were mainstreamed throughout the work of the commission—in its promotion, guidance, case-work, and investigations, not stuck on as an additional, marginal issue. As with all mainstreaming, however, there would need to be an accountability mechanism that would ensure that this approach did not lead to such a dilution of human rights that in practice they received little attention. My preference for Commissioners would be to take the approach of the NI Equality Commission—generic commissioners but each appointed with differing expertise and background, together comprising a team with the varied experience and background needed—in this case, including human rights.

11.   Are there pragmatic reasons why the Government might want to include human rights?

  Yes. Four reasons. First, it would reduce litigation costs. The Commission's role would primarily be promotion of good practice and hence prevention. As awareness of the Human Rights Act grows, so do the number of cases—some of which could have been avoided had the public bodies in question mainstreamed human rights thinking into their policies and procedures. Litigation is expensive and public bodies, and the central government that funds them, need to avoid that waste of public money.

  Second, a statutory body promoting human rights would help the Government deliver on some of its key priorities, in some cases supplementing the work of other agencies which are struggling to deliver on human rights related agendas. Promoting human rights and responsibilities as core values (through the human rights dimension of the national curriculum on citizenship education, for instance) would contribute to the Home Office agenda for cohesion in an increasingly diverse society—difficult to measure as an outcome but no less important for that. Promoting human rights within health and social care would help deliver the rise in care standards to which the Department of Health is committed and the desired increase in public confidence in the quality of care provided.

  Third, including human rights within the new body would remove the pressure on the Government to establish a separate body. It could respond positively to the forthcoming report of the parliamentary Joint Committee on Human Rights, which must be likely to recommend statutory provision for human rights in some form; would enable the FCO, which provides support to Human Rights Commissions abroad, to tell the UN and Council of Europe that the UK is now following their advice to establish such a body in the UK; and would be the Government's answer to NGO pressure for a commission and a repost to those critical of its human rights record. The Government could also consider specific inclusion of children's rights, there being a strong and consistent demand from NGOs responsible for children's welfare for a Children's Rights Commissioner. (A JCHR report on this will be published on 10 December). NGOs would only be satisfied, however, with a named commissioner responsible for children and arrangements that would ensure the accessibility of the commissioner to children in need.

  Fourth, it would result in less duplication of guidance to public bodies and employers who are snowed under with separate guidance on equality issues and, when available, on human rights. The guidance should be streamlined into user-friendly accessible good practice material that enables equality and human rights standards to be mainstreamed side by side.

12.   Is a merger feasible given the existing devolved institutions on human rights and equality?

  Scotland is to have its own, separate, Human Rights Commission. A single equality body in Scotland, whether part of a Britain wide body or autonomous, would therefore not need to take full responsibility for promoting human rights standards. It would be sufficient if it were able to address the human rights dimension of issues and cases as and when appropriate, and for it to liaise closely with the human rights body (which itself may not have the power to take cases or conduct investigations—though final decisions on its mandate have not been made).

  Does this cause logistical difficulties for a British equality commission, if it has full responsibility for human rights in England and Wales? Not if communication and coordination between the organisations is effective. If the SEB were addressing an issue with a human rights dimension, it would liaise with its own Scottish office (which is itself likely to be semi-autonomous) and with the separate Scottish Human Rights Commission, in the same way that the statutory equality bodies and the Human Rights Commission in Northern Ireland already do. It might have a joint initiative with the Scottish Human Rights Commission if that were the body dealing most directly with the issue at hand. The Scottish Executive is likely to welcome a supportive relationship for its human rights body from the larger SEB as it would increase the capacity of the Scottish body to address issues which have a Britain wide dimension.

  The Northern Ireland bodies will remain separate, but could be linked to the British bodies through a co-ordinating secretariat that provides for a greater level of communication and cooperation than current arrangements allow.

CONCLUSION

  The human rights and equality agendas are complementary and, in many cases, indivisible. Their broad goals—the promotion of respect for the dignity of each individual, protection from unfair decisions by those exercising power over others, and equal opportunity for all to participate in our democracy and civic society—is the same. It is possible to define the equality and human rights agendas so narrowly that they largely exclude the other; but the Government's vision for equality and its vision for human rights do significantly overlap.

  A single equality body that was unable to address human rights, or was able to address it only as a dimension of a discrimination case, would be seriously weakened. There would be gaps in the protection that it could offer—sections of the public left out and key issues which its mandate would not cover. There are financial, political and other pragmatic reasons why the inclusion of human rights makes sense. Concerns that human rights would make the agenda too broad, too controversial or too legalistic, or that devolution arrangements create logistical difficulties, can all be answered.

  A statutory body promoting human rights alongside the equality agenda would help Government departments achieve some of their central priorities for service delivery. The Human Rights Act was sold to the public as part of this modernisation of public services: a means to ensure fairness, fair treatment and respect for the dignity of each individual. The question is whether the Government still sees the promotion of human rights as contributing to that goal.

15 November 2002


1   JCHR, The Case for a Human Rights Commission: Interim Report, Twenty second Report, September 2002, HL Paper 160/HC1142 at p. 7 Back

2   Radio 4 Analysis, 6 November 1997 Back

3   Second Reading Human Rights Bill, HL, 3 November 1997. Hansard col 1308 Back

4   Building on a Human Rights Culture, address to Civil Service College, 9 December 1999 Back

5   Secure Borders, Safe Haven, Integration with Diversity in Modern Britain, (2002) CM 5387, paras. 2.2-2.3 Back

6   House of Lords, 24 November 1997, prior to Baroness Amos becoming a Government Minister Back

7   Forward to Spencer, S, and Bynoe, I, (1998) A Human Rights Commission, the Options for Britain and Northern Ireland, IPPR Back

8   Committee Stage Human Rights Bill, HL, 24 November 1997, cols 845 and 844 Back

9   Joint Committee on Human Rights, 22nd Report of Session 2001-02, The Case for a Human Rights Commission: Interim Report, Hl Paper 160/HC 1142, Minutes of Evidence p. 8, April 2002 Back

10   To be published on 10 December. Supported by Comic Relief Back


 
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