Issue 38 August 2007 - The Commission for Equality and Human Rights-A Foundation of Values
As October comes closer the new single body Commission for Equality and Human Rights ("CEHR") must rise to the challenge of finding its feet in absorbing the existing anti-discrimination commissions, integrating human rights, and giving itself a clear strategic focus and ethos. This will require a solid grounding in the relationship and interplay between human rights and equality to tackle its full remit in a coherent way. Having established this new joined up culture to equality and human rights issues, the Commission will then take on the important role in progressing a single common framework of values and law, requiring those in the public sector and service delivery to follow suit and look to a revised approach in developing respect and tolerance in society.
Together with the CEHR's specific human rights duties, such as encouraging good practice in relation to human rights, the Equality Act provides that "the CEHR shall take account of any relevant human rights when fulfilling its equality and diversity and good relations duties". This means the CEHR must take into account human rights in discharging its duties and exercising its powers across its whole remit, including equalities and ensure human rights are embedded as a set of overarching values that the public can understand and relate to.
This presents many challenges. The Human Rights Act "culture of rights"-putting the needs of the individual at the core of service provision has not gone as far as hoped, as human rights values have struggled to root themselves in everyday public authority culture. The CEHR is also faced with the difficulty of promoting human rights where they are often misunderstood by the public and derided by the press. The Lord Chancellor's Review of the Implementation of the Human Rights Act last summer highlighted the myths surrounding human rights and pushed for a more consistent approach to human rights within public authorities.
To begin this process the CEHR must first ensure the underpinning values of the Commission are solidly understood by the organisation itself from both bottom up in its day-to-day work and top down in its strategic aims and objectives. As the current Commission for Racial Equality, Disability Commission and Equal Opportunities Commission ("EOC") come together with the other "equality strands" of age, sexual orientation and religion and belief, the CEHR will require a coordinated approach to ensure there is an appreciation at all levels within the organisation of the underpinning human rights values of equality, dignity, fairness, respect, autonomy, pluralism and community.
This awareness raising requires some reflection of the synergies between human rights and equality in order to integrate two distinct bodies of law and best practice which, despite their common foundations, have developed separately and have traditionally been treated as such within the legislative framework. There are significant overlaps, and indeed shared foundations, between human rights and equality in both principle and practice which are only now, with the inception of the Commission being fully explored, related and realised. It is these connections, which are examined below, that shape how the Commission can best effectively implement its remit.
A foundation of values between equality and human rights comes from the Universal Declaration on Human Rights ("UDHR") where the principles of non-discrimination and universal human rights are at the core-the preamble states, "whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is a foundation of freedom, justice and peace in the world ... " The UDHR goes on to state in Art.1 that, "all human beings are born free and equal in dignity and rights" and in Art.2 that, "everyone is entitled to the rights and freedoms set out in the Declaration, without distinction based on race, colour, sex, language, religion, political or other status". The subsequent treaties to the UDHR include those dealing with discrimination on grounds of sex and race and, most recently, a new draft treaty on disability. In this way the UDHR and treaties are essentially the constitution of equality rights.
These State obligations under international law have been progressively implemented in a piecemeal fashion through various legislative provisions adopted since the 1970s, e.g. through the Sex Discrimination Act 1975, Race Relations Act 1976 etc. These artificially twin tracked developments in international human rights law, through the European Convention of Human Rights and Human Rights Act on the one hand, and in domestic legislative implementation of equality rights on the other, are now recognised as arising from the same common values and we look to harmonise their realisation through the work of the CEHR. This process of harmonisation will be further assisted by the government consultation on the Discrimination Law Review and proposed Single Equalities Act bringing the strands together and ensuring full protection of equality rights.
Starting point of impact upon individual
The mentality of the new CEHR will have to evolve from that of its current component commissions and the silo mentality of equality legislation to putting the impact on an individual or group at the starting point of issues coming to the attention of the Commission. Human Rights will complement and broaden the spheres of equality from the limited grounds of sex, race, religion or belief, sexual orientation, disability or age to be inclusive of protecting the rights of all individuals in society regardless of legal status.
The CEHR must move away from pigeonholing of the individual to a more inclusive approach to all of society where the particular circumstances of a case are considered in identifying whether there has been an infringement of their rights. In many human rights cases it will be the culmination of facts and circumstances of any individual which may result in a Convention breach and thus each case must be considered on its own merits. This approach reflects the principal that the European Convention of Human Rights status is a living instrument whose protection evolves with societal norms of acceptable standards. The "slopping out" case of Napier illustrates both this evolutive interpretation and consideration of a specific set of circumstances where it was the "triple vices" of eczema, confinement and slopping out which by today's standards was considered a breach of Art.3.
A further example might be in the case of bullying where the treatment is not attributable to any particular factor such as race, homophobia or religious belief, but is nevertheless inhuman and degrading treatment or a breach of privacy rights. Human rights may then provide the victim with a remedy and indeed human rights case law has recognised that racial discrimination can be a form of inhuman or degrading treatment.
Human Rights will then assist us in upholding a broader range of rights for a broader range of individuals. It is hoped this will resonate with the general public in seeing the CEHR as being the champion of all societies' rights, not only those of minority groups.
Filling the gaps
Human rights will support the Commission's equality agenda in so far as it fills the gaps left by equality strands and broadens anti-discrimination protection. There are currently gaps in protection of the equalities strands particularly in relation to the provision of goods and services. An example of this might be where human rights can protect the right of a disabled person to an effective family life, and so adjustments in a residential home that do not allow a disabled person access to social areas may be an Art.8 breach.
While equality protection is clearly limited to the protection of certain groups of individuals who fall within the definitions set out in the legislation which are restrictive in their application, the Human Rights Act and the jurisprudence from the ECHR can offer us a more inclusive approach to identifying the infringement of the rights of any individual in society without a particular defined legal social status.
The most explicit way in which human rights can supplement the equality strands and broaden anti-discrimination protection is through the use of Art.14 which reads, "The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
Vitally, the list of grounds on which discrimination is prohibited is non-exhaustive and the words "or other status" have been held to cover, amongst other things, sexual orientation, illegitimacy, marital status, trade union membership, transexualism and imprisonment. The Article may then confer rights on persons of many varying social statuses. The Commission, as part of its remit, may wish to further explore the parameters of Art.14 to include other groups, e.g. people of low socio-economic status, carers or a certain language minority group.
Alongside Art.14, the substantive Articles of the Convention themselves may also give rise to highlighting discriminatory treatment. The case of Smith and Grady v UK [1999] IRLR 734 was instrumental in demonstrating the European Court of Human Rights commitment to the prohibition of discrimination on the application of any Convention right. In this case, the applicants complained that the investigations into their homosexuality and their discharge from the Royal Air Force on the sole ground that they are homosexual constituted violations of their right to a private life (Art.8 of the Convention) and their right not to be discriminated against (Art.14). While Art.14 was not invoked it was clear that the wording of the Article to include "any other status" would be interpreted inclusively to include homosexuals. In this case Art.8 alone revealed the serious and systemic discrimination and this illustrates how the substantive Convention Articles may be used to challenge discrimination and emphasises the Court's commitment to the prohibition of discrimination.
Another case to illustrate this point is that of Connors v UK (2004) TLR 10/6/04, where Art.8 was used to recognise the rights of gypsies. In this case, Art.8 was violated where the eviction of the applicant and his family from a local authority site had not been carried out with the requisite procedural safeguards, commenting that "the vulnerable position of gypsies as a minority means that some special consideration had been given to their special needs."
It must also be recognised, however, the potentially restrictive nature of Art.14 as it stands in UK law which does not confer any free-standing or substantive right not to be subject to discrimination, instead it expresses a principle to be applied in relation to the substantive rights conferred by other provisions. The UK has failed to sign up to Protocol 12, which includes a free-standing prohibition on discrimination on Art.14 grounds, on the unlikely ground that it might prevent the government from taking positive measures to reduce inequality. The CEHR will undoubtedly want to monitor the applicability of Art.14 and the usefulness of ratifying Protocol12 in extending anti-discrimination protection.
Strengthening the strands
Human rights will also effectively strengthen equalities protection in ensuring treatment of persons does not fall below acceptable standards, as a human rights interpretation and application of legislation-including equalities legislation-can ensure standards of treatment and services are raised. For example, under the Disability Discrimination Act 1998, service providers are required to make reasonable adjustments to premises to allow access. A human rights interpretation of this legislation, which the Courts are required to make under s.3 of the Human Rights Act, will ensure that such adjustments take into account respect for the private and family life of the individual and ensure the adjustment could not lead to inhuman or degrading treatment where, e.g. the disabled person is required to use an inferior entrance or service which degrades the individual. In this way the dignity of the individual will be paramount.
Human rights further protects against bad treatment which is not discriminatory in nature and so imports the protection of dignity of the individual to the groups protected by equalities legislation as well as others. For example, systemic ill-treatment by staff in a special needs school may be treated as a human rights issue where treatment was not necessarily discriminatory in nature, but was applied across the board.
In this way human rights ensures a bottom line against serious ill-treatment which often affects the traditional equality strand groups more than others. An example of this might be the issue of domestic violence against women which, although not seen as a discrimination issue and so not previously dealt with by the EOC, can now be engaged with by the CEHR as a human rights issue of the obligation of the state to protect women against breaches of Arts 2 (right to life) and 3 (inhuman or degrading treatment) or 8 (respect for private and family life).
Balancing competing rights and promotion of good relations
The principle of proportionality, a key element of the judicial application of the ECHR, is central to an understanding of human rights and is also of practical importance in applying equality legislation, in particular in relation to indirect discrimination. An understanding of proportionality can also be used as a tool for assisting our thinking in the balancing of rights, which again will be of central importance to the functioning of the CEHR in examining complaints and in promoting good relations between communities.
Proportionality means essentially that where a right is interfered with under the Convention, the importance of the objective to be attained by the restriction must be balanced against the infringement of the individuals' right as a result of the restriction. This will apply to certain rights which are not absolute but are qualified, such as Arts 8-11 of the ECHR (respectively, the right to privacy and family life; freedom of religion; freedom of expression; and freedom of association).
These Articles are subject to express limitations which permit restrictions on the rights for specified reasons which may include public safety, the protection of public order, health or morals, or the protection of rights or freedoms of others. In deciding whether the justification advanced for a measure restricting a right is necessary in a democratic society, the Court decides whether the measure is proportionate to its aims and objectives.
The principle of proportionality is similarly embedded in equality legislation where a defence to indirect discrimination is that the application of the provision, criterion or practice is justified and is a proportionate means for achieving a legitimate aim. This applies in cases of indirect discrimination, where a policy or practice' is applied to everybody but may adversely affect one particular group and is then discriminatory in its nature.
The legal tests identifying whether an interference is permitted by law, either with a Convention Right or indirect discrimination, will then be broadly similar in identifying whether the justification for doing so is a proportionate response to a legitimate aim. Furthermore, as the Courts are required to interpret legislation in a way that is compatible with the Convention rights we have seen the principles of proportionality permeate domestic law.
A thorough understanding and promotion of the principle of proportionality will play an important role in challenging common misconceptions about human rights championing certain groups or individuals rights over the wider interests of society. In this way, the human rights framework lends itself to resolving tensions and conflicts between groups in society, e.g. freedom of speech can be restricted to protect the rights of others not to be subject to racial hatred and the right to a private life can be restricted to protect others from crime. The proportionality concept brings some objectivity to the balancing of competing rights and will assist the commission in its remit to promote good relations.
So, it can be seen how the human rights framework will form the backbone of the CEHR and mutually support the equalities agendas of the existing commissions. For the new Commission the starting point will be the impact upon individual, rather than a specific equality strand, shifting the focus of the operation of the CEHR from its component commissions and ensuring a more inclusive protection of individuals. This approach will be beneficial to all parties, whether public authorities, lawyers, private employers etc seeking to identify potential human rights abuses or human rights impact.
Human rights can also play a part in filling the gaps left by equality strands and broadening anti-discrimination protection, particularly through the use of Art.14 which has potential for greater use by the Commission. Existing equalities protection can be further strengthened and standards raised through a human rights interpretation and application of the law and best practice, ensuring all groups, and particularly vulnerable individuals, are treated with dignity and respect. Further to this, the proportionality component of the human rights framework will be an essential tool for the CEHR in addressing equality issues, as well as the promotion of good relations and balancing competing rights.
The successful functioning of the CEHR across its entire remit and the harmonisation of human rights and equality means everyone in the public sector and service delivery will need to have an appreciation of this shift in looking at issues of discrimination, exclusion and mal treatment. They will want to keep one eye on the strategic direction of the Commission while developing their own integrated systems of best practice, using this opportunity to further develop respect and tolerance in society.