Parliamentary Liaison - Equality & Human Rights - July 2004
Submission to Department of Trade and Industry
In response to Government White Paper on Commission for Equality and Human Rights
1. Introduction
We warmly welcome the commitment of the Government to Equality and Human Rights and its proposals for the introduction of a Commission for Equality and Human Rights as set out in the White Paper: 'Fairness for All.' We value the commitment of the White Paper to the principles of "dignity, respect and protection for everyone regardless of our differences." (Para 1.11) We hope that the Commission will have the authority to educate public authorities and the voluntary sector and the capacity to empower those who are currently unable to make their rights a practical reality.
We particularly welcome a commitment to fostering a culture of human rights that goes beyond adversarial litigation to the promotion of the underlying culture and values of autonomy, fairness, dignity and equality. We recognise the positive impact that similar commissions have been able to have in Commonwealth jurisdictions including South Africa, Canada and New Zealand and hope that the UK Government will learn from that experience.
We hope that the Commission will have the capacity to address the rights of the most vulnerable in society including all those within the jurisdiction of the UK whatever their nationality or immigration status. We consider it vital that in providing equality for those who experience "discrimination and unfair treatment" (para 1.2) that the Commission will have the jurisdiction and authority to investigate all public authorities including those with responsibility for the detention and removal of asylum seekers.
We remain concerned about several specific aspects of the present proposals:
2. Constitution of the body
The constitution of the Commission for Equality as a non-departmental governmental body would lack the formal independence that is outlined in the United Nations` Paris Principles. [ Note one : Endorsed by UK in General Assembly Resolution 48/134 ] We unite with the views of the Law Society, the Bar Commission on Human Rights, of human rights NGOs and the specific recommendations of the Parliamentary Joint Committee on Human Rights. [ Note two : HL Paper 78 HC 536 ] in considering that a model of direct accountability to Parliament would be the most effective guarantee of long term independence in the Commission's role in the enhancement of equality and the protection of human rights.
We recognise that the independence and authority of the National Audit Office, the Parliamentary Ombudsman, and Electoral Commission would not have been possible within a framework of departmental accountability. We acknowledge that the proposed Commission may in the future be required to work with Governments that may have very different conceptions of human rights. We recognise the valuable work that has already been performed by the Joint Parliamentary Committee on Human Rights in their scrutiny of the implementation of the Human Rights Act 1998 and hope that it is possible to learn from their experience and advice and to build on their independence. We consider that it is vital that a body such as the proposed Commission, which is likely to be involved in the investigation of complaints against the state, is seen to be independent of the Government of the day.
While we understand and support the logic of a body that can address human rights and equality in a coherent and integrated way, we are concerned that by subsuming human rights within the scope of a wider equality agenda, rights such as the right to freedom of religion, conscience and belief [ Note three : Article 9 ECHR, Article 10 EU constitutional Treaty ] may be lost among other more dominant interests. We recognise that the violation of the right to 'freedom of religion, conscience and belief' may arise in contexts that do not necessarily engage an equality provision. Recent cases regarding prohibition of the wearing of Muslim dress in secondary education provide a practical illustration of this. We consider that there is a risk that freedom of religion conscience and belief could be seen as somehow coming lower in an implicit hierarchy of rights. The danger is particularly acute where the current interests regarding disability, gender and race - are already protected by their respective Commissions. We support and encourage the recognition of a free standing right to individual freedom of conscience as a concept that is wider than that of freedom of religion and belief.
4.Free-standing Equality Act
We recognise the present piece-meal regime for the protection of equality is both confusing and potentially discriminatory. While under the proposed statutory regime the proposed Commission would have the power to investigate discrimination regarding race and gender in relation to access to goods and services it would have more limited powers in relation to disability and no such power in relation to the new strands of equality including that of religion and belief. We would encourage the Government to consolidate the authority of the proposed Commission by introducing a single Equality Act that would harmonise equality legislation at the highest level and thereby give effect to the principle of equality as a fundamental principle of the rule of law. In the area of criminal justice for instance it is anomalous that a body with the name "Commission for Equality and Human Rights" would apparently have the competency to consider the violations of human rights of black male prisoners (where an equality provision is engaged) but not those of white male prisoners where no equality provision is engaged. [ Note four : HL Paper 78 HC 536, Memorandum form Liberty March 2004, Joint Committee on Human Rights, notes of evidence page 66 ]We consider that both alike need to be protected and that the human rights scope of the Commission needs to be expanded to include such investigations within its remit.
5.Conclusion
We support the commitment of the government to ensure that the safeguarding of human rights is central to its work and hope that it is possible to address specific concerns regarding the protection of the right to freedom of religion, conscience and belief. We welcome a philosophy that is committed to the achievement of fairness through equality and human rights and the commitment of the government to going beyond anti-discrimination to the respect and celebration of difference.
Michael Bartlet, Parliamentary Liaison Secretary, July 2004
