Creating a fairer Britain
Commissioner Geraldine Van Bueren.
This evening I want to explore the relationship between equality, human rights and dignity and ask three questions:
- Firstly - what does dignity mean? And how is it affected by austerity?
- Secondly – does our present domestic legal framework, sufficiently guarantee dignity, especially in an age of austerity?
- And finally - looking ahead to a possible Bill of Rights, would a legal right to dignity be useful and how might it protect us in times of austerity?
Dignity is at the root of our contemporary human rights and anti discrimination law.
The preamble to the Universal Declaration on Human Rights proclaims 'that recognition of the human dignity of all people is the foundation of justice and peace in the world'.
The European Court of Human Rights has said that the European Convention forms "an integrated system for the protection of human dignity". So by implication, we are all seeking to promote and protect human dignity.
We know that, one of the main objections to a right to dignity is that it is too unspecific or indeterminate. It is an idea at once easy to understand, yet incredibly difficult to define. Indignity tends to be easy to recognise. What constitutes dignity and how it may help us ameliorate austerity can be less obvious.
Dignity speaks deeply to the human condition, not to abstract legal concepts; it appeals to our emotions and values, not simply to our intellect and because it resonates with everyone, dignity, can help make human rights more popular.
But what does dignity have to do with the impact of austerity I hear you ask?
I would like to tell you about Elaine McDonald, a woman, who the Equality and Human Rights Commission is assisting. Elaine, a former ballerina suffered a stroke in 1999. She also has a condition so that she needs to use a toilet; three or more times a night. Owing to her physical frailty, she has suffered from a number of falls while accessing the toilet, sometimes resulting in hospitalisation.
Elaine, whose need was assessed as ‘substantial’, was awarded a care package, including night-time care. Shortly afterwards, the local authority, Kensington and Chelsea, decided to withdraw the night-time care on the basis that the claimant – who is not incontinent – could use incontinence pads instead.
Elaine McDonald refused, because, it would have meant sitting in [her] own urine and faeces for 12 hours at a time, until [her] next carer arrived, the following morning at 8.30am’.
In Elaine's case the indignity she experienced has two components - the lack of control over her own life, because she was not consulted about the decision to amend her care package and the degrading circumstances resulting from that decision.
Both civil and political rights, the choice and control she enjoyed, and socio-economic rights, the material conditions in which she lives are engaged, and inform the enjoyment of dignity.
And of course this decision was driven above all else by the question faced by her local authority of how best to deploy scarce resources. I should add, that Elaine's case might just be the tip of a very large iceberg. It involves the local council in the wealthiest borough in Europe - Kensington and Chelsea - and the decision, preceded the present round of deep spending cuts being implemented across the country.
Dignity then is a potentially helpful concept in measuring the impact of austerity.
So does our domestic legal framework sufficiently guarantee dignity, especially during a time of austerity?
Let’s assess the case of Elaine McDonald. I think most people would recognise that the situation she was left in was an assault on her dignity. Yet the legal thresholds in the Human Rights Act, as invaluable an Act as that is, the legal thresholds regarding inhuman and degrading treatment were too high to argue a breach of Article 3 rights. The Court of Appeal held that the local authority had acted reasonably, given its responsibility for acting in the interests of all clients, whose welfare it supported with limited resources.
The Court of Appeal also found that, although Article 8, the Right to Respect for Private and Family Life was engaged, the local authority had not interfered sufficiently in Elaine’s rights, for a breach of Article 8 to have taken place. With the help of the Equality and Human Rights Commission Elaine appealed to the Supreme Court. A judgment is expected very soon.
The reluctance of the Courts to engage in questions of resources is well documented. And in the current environment regarding the separation of powers between our Courts and our Parliament, this trend may continue, unless we are able to show, how courts in other countries have been able to deal with these issues, without causing constitutional confrontations.
But the concept of dignity, has made its way into UK case law, and has been cited by the House of Lords as a cornerstone of human rights protection in a string of cases. For example, in the case of Limbuela, the House of Lords found that the Home Secretary's practice of refusing accommodation or food, to those asylum seekers who do not claim asylum promptly on arrival, was inhuman and degrading and violated article 3 of the European Convention of Human Rights.
So might our equality law strengthen and shape this fragile concept of dignity? The public sector equality duty, is a procedural duty to ‘have regard to’ eliminating discrimination and promoting equality of opportunity, in relation to race, gender, disability, age, religion or belief, sexual orientation and transgender status.
The duties are an important tool, because they require public authorities to demonstrate, that they are making financial decisions in a fair, transparent and accountable way, considering the needs and the rights of different members of the community. This is achieved through assessing the impact that changes to policies and practices could have on different protected groups.
We at the Commission, using our unique powers as a regulator and National Human Rights Institution, are conducting a section 31 assessment of the Treasury, to assess the extent to which the Treasury met their obligations, when considering the impact of the decisions contained in the Spending Review.
Under the original public sector duties, which cover race, gender (including transsexual people) and disability, the Treasury has a legal duty to have 'due regard' to the need to eliminate discrimination and promote equality of opportunity. This includes considering whether, there is any disproportionate negative impact, on these protected characteristics, when making decisions, including decisions about the Spending Review.
Where it is found that decisions have a disproportionate negative impact on these groups, public bodies must consider what actions should be taken to avoid, mitigate or justify that impact.
As well as the assessment of the Treasury, we are monitoring how local authorities, are paying due regard to the equality duties, when making financial decisions. Information is being gathered from all local authorities in England to demonstrate their compliance with the duties, with a focus on:
But, valuable though our equality law is, in promoting and protecting some important facets of human dignity, it also has some significant limitations.
Equality focuses on the relative situation of people in groups possessing particular identities, but it fails to address experiences, which are unconnected to those 'protected characteristics'.
Hence, women will only enjoy protection in relation to their gender or ethnicity for example. And their specific circumstances arising out of their lack of resources, unrelated to their identity, are unlikely to feature at all in the way public authorities address their equality duties.
In addition, the Equality Act is not instructive on the matter of just how much inequality is acceptable or unacceptable. Nor does it address the question of whether there are some bottom lines in terms of an acceptable standard of living. An approach which is found in the UN Covenant on Economic, Social and Cultural Rights by which the United Kingdom is legally bound. So now food is being provided by charities not just in terms of overseas aid, but also to people who live in England and who have insufficient food.
The UK's present approach to the UN Convention on Economic, Social and Cultural Rights, the UN Convention on the Rights of the Child and the UN Convention on the Rights of Persons with Disabilities is to regard these treaties as broad performance frameworks, against which we are measured by UN Treaty Bodies. They are not incorporated into our domestic legal framework and therefore have a patchy record in terms of direct impact on public policy. With the exception of the disability and women's Conventions, the UK has not ratified the mechanisms, which enable people to petition the respective UN treaty bodies. We have written to the Government, asking them to ratify all remaining petitioning Protocols as well as to ratify in full, the Council of Europe’s European Social Charter, which if implemented would provide social, economic and cultural safety nets in times of austerity.
There are, however some positive signs that the Treaties are taking a more central role in our domestic discourse on human rights.
The Welsh Assembly Government has recently taken a significant step in requiring Ministers to have due regard to the Convention on the Rights of the Child in the context of policymaking and decisions.
The Joint Committee on Human Rights is presently conducting an Inquiry into disabled people's enjoyment of the right to independent living as set out in the UN Disability Convention.
And civil society organisations are increasingly recognising the opportunities provided by the various Conventions to hold government to account for its performance on human rights.
We at the Equality and Human Rights Commission has worked over the past year with the women's resource centre, Runnymede and disability organisations to build awareness and confidence in using the Conventions as a practical tool to promote and protect human rights.
It is clear then, hat we face some significant shortcomings in relation to the promotion and protection of dignity, and that these shortcomings, become particularly apparent at a time of austerity.
What is less clear is whether we should consider dignity to possess an independent legal identity, or whether the guarantee of human dignity is the ultimate objective of a human rights compliant society. So how might we address this? One option may be a freestanding right to dignity – but would it 'reach the parts of the law, other laws fails to reach', and if so what form might it take?
Here it is helpful to look internationally for guidance.
A number of countries including Germany, South Africa and Canada have incorporated dignity as a core constitutional value.
In Germany, the constitution – or Basic Law - incorporates dignity as a background value and a substantive right in Articles 1 and 2. It acts as a guiding principle for the courts, not just in the interpretation of Basic Law, but across the case law of the Federal Constitutional court.
Influenced by this, the South African Constitution reads:
The Republic of South Africa is one, sovereign, democratic state founded on…Human dignity, the achievement of equality and the advancement of human rights and freedoms. In South Africa, in relation to socio-economic rights in particular, dignity has formed the basis for some interesting and progressive decisions. -- Including in the rebalancing of the power balance between people living in substandard housing conditions and their local authority.
The Constitutional Court recognised the indignity of the inequality of bargaining power of those living in poverty. The Court ordered the Johannesburg local authority to take this into account, when negotiating over a mutually acceptable solution with people living in poor housing, which would require court approval.
And in the Grootboom case, where the Court emphasised the connection between dignity and socio-economic rights by stating:
“There can be no doubt that human dignity, freedom and equality, the foundational values of our society, are denied those who have no food, clothing or shelter. Affording socio-economic rights to all people therefore enables them to enjoy the other rights enshrined in [the South African Constitution’s Bill of Rights. "
In Canada, the right to dignity has developed through the equality jurisprudence under the Charter of Rights and Freedoms. In the landmark case of Law v. Canada the Supreme Court held that:
“Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment... Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society."
Dignity then as a central principle underlying equality has led to some notable decisions, for example the case of Eldridge v British Columbia.
Robin Eldridge and John and Linda Warren were deaf residents of British Columbia, who communicated by sign language. All had experienced problems within the provincial health care system, because of their inability to communicate with health care providers, in the absence of interpretation services.
When a private provider of sign language interpreters discontinued its service, and after the refusal of funding or alternative services by the provincial government, Ms. Eldridge and Mr. and Mrs. Warren applied to the Supreme Court of British Columbia. They argued that the failure to provide sign language interpreters, as an insured benefit under the Medical Services Plan, violated the equality clause. The Supreme Court of Canada ruled that sign language interpreters must be provided in the delivery of medical services, where doing so is necessary, to ensure effective communication.
In Europe, Article 1 of the European Charter on Human Rights and Fundamental Freedoms, states simply, “Human dignity is inviolable. It must be respected and protected.” The meaning of Article 1 is not yet clear, in the sense that no definition of what constitutes human dignity has yet been formulated. However, there are certain aspects of the Article that can be understood, from examining case law of both the Strasbourg and Luxembourg Courts as well common constitutional traditions of Member States. Human dignity is a standard feature of many European constitutions, not just those I have mentioned already.
And in the case of Christos Konstantinidis , the Advocate General drew on the traditions of Member States to confirm human dignity, as a principle of EU law. He stated "the constitutional traditions of the Member States, in general, allow for the conclusion that there exists a principle, according to which, the State must respect, not only the individual's physical well-being, but also his dignity, moral integrity and sense of personal identity."
It seems therefore to be beyond doubt that where we are in the realm of EU law, the development of dignity as a freestanding right is likely to be secure.
Nevertheless, it is conceivable that a European legal concept of dignity could be limited insofar as its capacity to promote and protect socio-economic rights.
To this end, I am leading work at the Equality and Human Rights Commission to explore the most appropriate, and effective ways to ensure, that the United Kingdom meets its international human rights obligations.
We have started this work with an open mind and will consider all options from fully justiciable rights, to transparency and accountability measures, making use of the Human Rights and Equality measurement frameworks, which we have been developing - to the due regard models, similar to that adopted by the Welsh Assembly Government on the Convention on the Rights of the Child. This is a part of our work under the umbrella of Human Rights Act Plus. We are also co-hosting a conference in October on options to protect socio-economic rights. I would welcome participation from all of you.