The rights approach
Public bodies need to recognise the
importance of embedding human rights in service delivery.
It's now 11 years since the Human Rights Act was passed, enshrining into UK law a set of minimum necessary fundamental rights and freedoms for all. Local authorities and other public sector bodies are required to act compatibly with those rights and many have risen to the challenge. But a recent inquiry by the Equality and Human Rights Commission (EHRC) concluded that public bodies could be doing much more to use a "human rights approach" to improve service delivery.
The EHRC inquiry was set up to examine the extent to which respect for human rights for individuals is embedded in service delivery. Evidence was provided by local and central government, the voluntary and community sector, the NHS and other public sector bodies as well as members of the public. The final report suggests that the act can provide a framework for public bodies, such as local authorities, health services, police forces and schools, to plan and deliver services. It also makes a series of recommendations for how public bodies and their staff can improve services by addressing human rights.
Human rights are not merely "abstract concepts," but they can be used as an "effective tool" for delivering organisational success and better services to the public, the report states But it concludes: "A true understanding of human rights as a tool to improving people's lives is not widespread … improved knowledge and understanding is essential."
Making human rights a reality in local government was the focus of a recent roundtable discussion convened by the Guardian, in partnership with the EHRC. The first of a series of EHRC roundtables, the event was conducted under the anonymity of reporting allowed under the Chatham House rule to encourage frank debate.
High-profile stories about the abuse or neglect of vulnerable people in care and the loss of personal data by public officials have put human rights in the spotlight. But do local authorities really understand their responsibilities in this area? More than one participant referred to human rights as "the elephant in the room". Others said that this is an area of work that "people prefer to shove under the table"; the human rights agenda "is seen as an area of fear"; and many local authorities "think it is really inconvenient".
Lack of understanding
One participant admitted: "There is a considerable lack of understanding about human rights among chief officers." Another suggested that the implications of a human rights approach to service delivery was responsible for the fear factor: "If you start thinking about rights to care and housing that people might be entitled to and so on, most local authorities can't afford it. So it's easier to keep your head under the pillow and hope that it goes away."
These sentiments echo the EHRC inquiry findings, which highlighted "significant misunderstandings and misconceptions" around human rights, resulting in service users and service providers being "uninformed about their rights and responsibilities". Eighty-four percent of people agree that it is important to have a law that protects human rights in Britain. Yet 42% believe that the only people to benefit from human rights in the UK are criminals and terrorists.
So what has caused this confusion? One participant said that equalities legislation has come "from the bottom up" – driven by grassroots groups – but there has been more of a "top-down approach" for human rights and no clear discussion about what should be changed by the legislation in the UK. Another felt that the public and the media often confuse human rights and equality rights, further muddying the waters.
For more than one diversity chief, the problem lies in "the layering" of debate around issues such as fairness and equality, which can lead to tensions: "Sometimes they do mesh but sometimes they are very different … The problem for local authorities is that there are different bodies coming at issues from different angles. Trying to unpick these quite complex activities is very difficult."
These complexities are exemplified by cases such as that of Lillian Ladele, the registrar in Islington who took her employer to an employment tribunal, arguing that her religious beliefs should exempt her from having to perform civil partnership ceremonies. Last year, Islington council won an appeal on the case, with the tribunal ruling that religious employees do not have the right to discriminate against others, and that refusing to provide services to people on the grounds of their sexual orientation is wholly unacceptable, no matter what your religion says.
The EHRC inquiry found "a very clear reluctance" on the part of public bodies to use the specific language of human rights. One diversity chief thought that this "has negative connotations for people, so they become disassociated". It was felt that many local authorities "shy away from the language" even if they have adopted a human rights approach. Perhaps, as one participant suggested, more local authorities should "look at innovative ways of presenting human rights". For example, one council has used actors in its communities forums; they play out scenarios involving groups such as Gypsies and Travellers, then ask councillors what they would do in particular situations.
Several participants agreed that more powerful leadership could help to drive the human rights agenda across service delivery. According to one, there is "a particular lack of leadership on human rights and how we use them". Others said that, for many authorities, human rights are "a bolt on" or a "tick-box exercise", but this has been "a missed opportunity". Human rights "should be mainstreamed" and "integrated across all services". If a council is developing a new service, "human rights should be applied, alongside legal and financial implications". The human rights approach "ought to govern the processes by which rationing takes place". But some were wary of more "top-down guides" from the EHRC, which they felt "could focus more on how you engage [on human rights] and what is the quality of the experience".
Guidance and good practice
As a follow up to the EHRC inquiry, IDeA – the improvement and development agency for local government – has commissioned the British Institute of Human Rights to examine the human rights approach in local government. The project – to be launched at a conference on 24 November – will consist of five pilots with different types of local authorities and specific service areas such as adult care. The aim is to produce guidance and good practice for local authorities.
For many around the table, public spending pressures and implications of a possible change of government overshadow the human rights debate. One commented: "I don't think its rational to think that human rights will form a central plank of what happens next year. There is still money in the pipeline [for public services], but the pipeline is about to be shut off."
But protecting "the deserving poor", who stand to lose out under efficiency drives, make a human rights approach to service delivery even more important, argued one participant: "Human rights has to be embedded throughout services, to be a safety net for those who are the worst off." There is "an impact on the public purse of not protecting fundamental freedoms," claimed another. And this approach should extend to outsourcing too: "Yes, the cake is getting smaller and smaller, but local authorities have still got resources. Let's factor in human rights and put the safeguards in place to protect the most vulnerable." Other participants thought the cake wasn't getting smaller, but needed to be distributed differently.
The EHRC inquiry heard evidence calling for the introduction of a duty on public authorities to promote human rights, along similar lines to existing public sector duties to promote equality on race, gender and disability. The final report recommends that the government should consult on this proposal and look at better inspection and regulation processes. There were mixed responses to this around the table. One diversity leader agreed: "There does need to be a proactive duty, rather than local authorities waiting until something is done to them. This has got to be backed up by inspection bodies to show what it will mean in the social care context, the education context, and so on. It gives that community something to work within."
For example, the introduction of the Every Child Matters agenda – driven through an inspection regime – had "resulted in a shift in children's services that had made leaders sit up and take notice". But for others, "self-regulation will be the name of the game". "We in the public sector haven't yet tried out different ways [of inspection] so a regulatory body is a bit premature." The human rights agenda "should not to be a reflection of ratings". One participant worried that "all these duties will become separate activities" that make it difficult to embed human rights seamlessly across services.
There was consensus that a joined-up approach to service planning and delivery is needed. As one participant commented, "The Human Rights Act is never going to be a panacea for social justice. Human rights is a tool we can use, but it is not the only tool we can use." Making the rhetoric a reality for service users should be of paramount importance. "The challenge for [local authorities] using the human rights approach is to take it from the model of benevolence to one based on choice and independence."
28 October 2009