Creating a fairer Britain
16th March 2011
Human Rights Programme Director
I want start by exploring what we actually mean by this question, then I will talk through the challenges of answering it - or more importantly still, acting on it - and finally I'll say a little about the Commission's approach and work in this area.
So, what do we mean when we ask 'is austerity compatible with the UK's human rights obligations'?
Our answer rests to a great extent on our perception of human rights.
Those who put greatest stock in liberty may view retrenchment of the State as essentially positive for human rights - for example cuts in expenditure on surveillance or identity cards or as part of a broader programme of civil renewal.
Or they may just not see any obvious connection between spending decisions and human rights.
Others will see retrenchment of the State as nothing but a major threat to human rights, in particular to marginalised and vulnerable groups who depend heavily on state support to achieve a basic standard of living.
Before making any assessment of the impact of spending decisions and reform we need to avoid falling into a trap of looking at only one side of the equation.
Those concerned with standards of living must acknowledge the power of the State to diminish people's autonomy as the price of social security or public services. And we can all point to many instances - some very recent - of State agencies failing to respect the fundamental rights of people in its care.
Equally we should not enter this debate assuming that civil and political rights have no price tag. The quality of human rights protection is affected by issues of expenditure on infrastructure, public education and staff training for example.
Those who believe in the indivisibility of human rights will recognise that both liberty and a decent standard of living matter, that they must be reconciled and that negative compliance is not enough to guarantee either.
Albie Sachs sums this up well in his book the Strange Alchemy of Life and Law when he comments that:
'It would have been ironical indeed if the struggle (against Apartheid) had ended up doing little more than to guarantee to people dying of hunger the inalienable right to use their last breath freely to curse the government.'
Sachs believed that the South African constitution demanded neither a purely libertarian approach, or a purely communitarian approach, instead promoting what he calls a 'dignitarian' approach to human rights which connects freedom to a decent standard of living.
This is a conception of human rights which serves the responsibilities of the Equality and Human Rights Commission well. Dignity is the conceptual and philosophical glue which binds together our various duties to promote the Human Rights Act and the full range of international human rights standards, to eliminate discrimination and harassment, to promote equality of opportunity and to foster good relations.
Our role is also about freeing human potential.
This is why in our work on measuring the enjoyment of equality and human rights we have drawn heavily on the 'capabilities approach' developed by the Nobel Laureate economist Amartya Sen.
A capabilities approach is an approach to human rights and equality which focuses not simply on people's freedom from harm, undue interference or discrimination, but on what is required to accord them the freedom to flourish as human beings, ensuring they have genuine autonomy to shape a life worth living.
If we start this debate with these two ideas in mind I believe this begins to provide a more useful framework for our assessment of government policy.
First, it allows us to assess the impact of policy on fundamental human rights to both autonomy and dignity.
Second, it allows us to assess the broader impact of policy on capabilities - on what people are able to be or do
And thirdly - and critically in my view - it allows us to begin to assess not just the impact on individuals, but the associated costs and benefits for society as a whole of protecting and promoting human rights.
In doing so, what we begin to see emerge are human rights not simply as a constraint - as a legal line which must not be crossed - but as a framework of values, principles and standards for better decision-making.
So much for the theory, the difficult part is putting these ideas into operation and here we face a number of challenges.
Our human rights laws are only likely to play a minor role in relation to these issues.
Spending decisions may create a climate in which some civil and political rights are more at risk, because the quality of safeguards is diminished, but rarely are they constitutive of human rights violations.
The courts are - as the recent Elaine McDonald case demonstrated - highly reluctant to engage in matters of resources even where basic human dignity is at play.
And the economic, social and cultural rights set out in international law are not presently justiciable in the UK courts.
Though our Equality law does presently require decision makers to carry out equality impact assessment - something the Commission is exploring through its assessment of the Treasury spending review - the law remains unclear as to the mitigations that decision makers should take if they determine an adverse impact on equality of opportunity.
In short, the law isn't particularly helpful in determining just how much inequality is acceptable.
Eleonor Roosevelt famously said that human rights matter in small places close to home. The problem with this is that accountability for those small places is distributed across a vast range of actors. Each are taking decisions independently of one another and without regard to the aggregate effects of their collective actions. At the same time none are necessarily acting in a way which amounts to a technical breach of human rights.
Human rights play only a marginal role in policy discourse in Britain.
Though some of the international human rights treaties have had a purchase on thinking outside the government departments which have lead responsibility for them - in particular CRC - most departments of government, other public authorities and local authorities will have paid no attention to them at all. They are not generally encouraged to do so and where they are the mode is one of negative compliance - a matter solely for their lawyers.
Finally, in focusing on spending decisions we risk overlooking an arguably more profound and enduring set of challenges with respect to a radical restructuring of the State and its relationship with the citizen.
The key features of this restructuring are de-centralisation and localism, personalisation including the use of direct payments and individual budgets, further involvement of private bodies in the delivery of services, transparency measures and behavioural psychology taking the place of central diktat and regulation and efforts to renew civil society through mutualisation and encouraging voluntarism - under the banner of the Big Society.
Our understanding of international human rights law may incline us towards pinning sole responsibility on central government in relation for example to human rights in the context of national budgeting.
People may also wish to use human rights to argue against such reforms, saying that it amounts to a derogation of responsibility by government - and of course there may be issues or areas where we are right to take this view if the consequence is a weakening of human rights protection.
But to do so without question risks failing to appreciate and engage with the changes I have outlined.
We must re-appraise our approach and respond to these realities if we are to optimise the impact of human rights on the way Britain is governed.
The Commission is presently conducting an Inquiry looking at these issues in the context of home care for older people where over 80% of services are now provided by the independent sector, most of which has no direct duties under the Human Rights Act.
As we enter these discussions it's important that don't simply point to what we perceive as problems and deficits. We have to advocate workable solutions.
If we believe spending decisions or reforms create problems for equality or human rights are we simply saying we don't agree with them, or do we believe they can be mitigated such that human rights continue to be adequately protected, promoted and fulfilled?
Are our answers confined to state expenditure on welfare and public services? What about state action to support mutualisation, or private insurance or to strengthen civil society - can such approaches also signal the State meetings its obligations under international human rights law by seeking to draw on the entire resources - financial, legal and human - available to it?
Can human rights only be protected through legislation and regulation? What role has measurement, transparency and accountability to play?
Good public services are based on human rights principles - they protect and promote dignity, their success relies upon promoting the autonomy of the people they support. How can we harness and help shape the implementation of the agendas of personalisation, localism and transparency to strengthen human rights protection?
I hope we can debate these points this evening.
I want to finish by highlighting how the Commission's own activities and ideas seek to rise to these challenges.
We want to promote greater transparency and accountability regarding human rights. We're doing this through developing measurement frameworks, which Polly will say more about later, through reporting on progress - in December we will publish a review of the national human rights situation - and through monitoring implementation of various UN human rights treaties. And we are using our legal powers. I have mentioned already our assessment of the Treasury spending review.
We are also supporting the appeal to the Supreme Court of the case of Elaine McDonald v the Royal Borough of Kensington which will be heard on 4th/5th April. The outcome of this case will be significant in the context of local authority decisions regarding community care assessments where the protection of dignity is engaged.
In the words of Elaine - who is not incontinent - with respect to her local authorities decision to replace support with getting to and from a commode during the night with the provision of incontinence pads:
"I would therefore be sat in my own urine and faeces for 12 hours at a time, until my next carer arrives the following morning at 8.30am. I do not even think that prisoners have to suffer this indignity; they would at least have their pads changed during the night if they became soiled. I feel that RBK&C is effectively penalising me for my desire to remain independent, and that as a result my human rights are being violated."
We are working in partnership with others to build the awareness, confidence and capacity of civil society to make practical use human rights as a source of power for themselves and those they support. With the British Institute of Human Rights we are beginning to evaluate and disseminate findings concerning the success of a number of pilot projects which have explored how community groups can use human rights to address poverty.
In partnership with Runnymede, the Women's Resource Centre and RADAR we have produced guidance for civil society organisations on the race, gender and disability conventions as well as co-hosting training sessions for local groups around Britain.
Finally, we are exploring new approaches regarding the promotion and protection of human rights. We are conducting research and co-hosting debate regarding the most effective way to protect, promote and fulfil socio-economic rights in Britain.
We are watching with interest the implementation of the new duty on Welsh Assembly Government Ministers to have due regard to the CRC and progress in Scotland regarding the development of an integrated equality and human rights impact assessment, as well as developing and piloting new human rights 'health checks' for public authorities and their users to employ in assessing compliance and performance.
Taken together this work and the work we will deliver over the coming few years aims to ensure human rights are increasingly part of the everyday discourse - a framework of common standards and expectations guiding not only the relationship between individuals and the State but importantly our reciprocal relationships with one another.
We are days away from the launch of a Commission on a Bill of Rights, appearing at a moment where the brand image of human rights is at a new low and tasked it seems only with exploring the case to repeal our current protections.
Those of us who care about human rights have to work with others to change the narrative and the chorus line.
It does not help our case for human rights to be seen always as an obstacle. Our challenge in relation to this debate is I believe to position human rights as a key part of the toolkit in starting to build a fair and inclusive recovery.