Human Rights Insight Project

Human Rights Insight Project

Stage 1 Report: Consumers Reviewing the evidence on human rights awareness and experiences of consumers of public services: Building a human rights culture

Final Report 23 June 2005

Author: Dr. Theo Gavrielides Editors: Janet Hawkes, Jennifer Hepker

Consumer Strategy Directorate: putting the public first This document has been prepared to stimulate discussion. It does not represent government policy. Please do not circulate without approval.

TABLE OF CONTENTS EXECUTIVE SUMMARY

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CHAPTER 1: Introduction and objectives

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1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8

Scope and context of this report ‘Human Rights Insight Project’ objectives Background to the ‘Human Rights Insight Project’ What is a human rights culture? How to construct a human rights culture: the three mechanisms Where are we now in terms of building a human rights culture? How can the ‘Human Rights Insight Project’ help to build this culture? The originality and contribution of the ‘Human Rights Insight Project’

CHAPTER 2: Human rights in context

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2.1.

‘Human Rights in the books’ vs. ‘Human Rights in action’

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2.2. 2.2.1. 2.2.2. 2.2.3. 2.2.4.

The human rights principles examined by the ‘Human Rights Insight Project 16 Being treated with dignity and respect Equality Fair hearing rights and involvement in decision-making Rights that may be relevant in particular circumstances

2.3.

Human rights principles in the context of which services and users?

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CHAPTER 3: Public Awareness and Attitudes to Human Rights

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3.1. 3.1.1. 3.1.2. 3.1.3. 3.1.4.

Where are we now? Findings from the extant literature Human rights awareness: children and young people Human rights awareness: disabled people Human rights awareness: older People Human rights awareness: black, ethnic and other minority groups

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3.2. 3.2.1. 3.2.2.

Not just an issue of awareness: misunderstanding and hostility Misunderstanding and hostility in relation to the Human Rights Act Misunderstanding and hostility in relation to human rights principles

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3.4.

How much awareness?

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3.5.

Conclusions and next steps

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CHAPTER 4: Satisfaction with Public Services: Human Rights and other drivers

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4.1.

What are the constituent elements of satisfaction?

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4.2.

Factors that drive customer satisfaction with public services

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4.3.

Where do human rights fit in this analysis?

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4.4.

Where are we now in terms of respecting human rights while delivering public services: evidence from the extant literature 40

4.4.1. 4.4.2. 4.4.3. 4.4.4. 4.4.5.

Public services and children: the evidence so far Public services and disabled people: the evidence so far Public services and mentally ill people: the evidence so far Public services and older people: the evidence so far Public services and black, ethnic and other minority groups: the evidence so far

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4.4.6.

Other quantitative data relating to customer satisfaction with the examined public services

CONCLUSIONS AND NEXT STEPS

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APPENDICES Appendix I: HRA information material Appendix II: Possible targets for human rights programme Appendix III: The principles underlying the Human Rights Act Appendix IV: Sample of the qualitative phase of the Human Rights Insight Project Appendix V: Examples of misleading media coverage of the Human Rights Act

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BIBLIOGRAPHY

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OTHER DOCUMENTS

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TABLES AND FIGURES Figure 1: The virtuous circle of human rights and responsibilities

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Figure 2: Measuring customer satisfaction

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Figure 3: Impact of media coverage of the NHS anniversary on satisfaction

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Figure 4: UK population by age, Census 2001

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Table 1: Factors shaping customers’ expectations with public services

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Table 2: SERVQUAL dimensions measuring service quality

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Table 3: Types of factors that influence customers’ satisfaction with services

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Table 4: Incidents of abuse of older people alleged in calls to Elder Abuse Response

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Table 5: Types of abuses of older people by nurses and care workers alleged in calls

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Table 6: Occupation of perpetrator and place where alleged abuse

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of older people occurred Table 7: Black and Ethnic Minority Groups in the UK, Census 2001

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Table 8: Main religions in London, Census 2001

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Table 9: Main language and religious groups in the UK, Census 2001

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Table 10: Differentiation in customer satisfaction: Age

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Table 11: Differentiation in customer satisfaction: Disability

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Table 12: Differentiation in customer satisfaction: Gender

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Table 13: Differentiation in customer satisfaction: Ethnicity

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Table 14: Differentiation in customer satisfaction: Employment status

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EXECUTIVE SUMMARY Introduction This report is the first stage of the Human Rights Insight Project, which is undertaken by the DCA’s Consumer Strategy and Constitutional Directorates. The report is the first stage in the research of the Insight Project and provides a background to its second stage, which will be carried out with in-depth interviews, focus groups and workshops with consumers of public services. The Project focuses on frequent users of public services in institutions (e.g. older people), frequent users of public services outside institutions (e.g. housebound people), people with minority cultural/religious/faith beliefs and traditions and people with communication difficulties.

Human Rights Insight Project Background The Human Rights Insight Project is being conducted as part of the Human Rights Division’s policy development work on improving the implementation of the principles underlying the Human Rights Act. It is envisaged that to support the development of a human rights culture, targets may be developed around the following three elements covering delivery by public authorities and public attitudes towards, and experiences of, human rights: i. the number of public authorities with a human rights training strategy in place or who have carried out human rights training with their staff; ii. the number of public authorities that have introduced human rights in their corporate planning and governance arrangements; iii. a target that reflects the consumer-focus of the Human Rights Act and which seeks to promote and measure improvements in the experiences of consumers and potential consumers of public authority services as well as public confidence in the institutions of the state as a direct result of a human rights culture being developed successfully within public bodies. The overarching aim of the Human Rights Insight Project is to identify means and measurable indicators DCA could use to promote human rights-friendly service delivery by public authorities that corresponds better to the needs of users, particularly those from vulnerable groups. It will identify what benefits the wider implementation of human rights could bring to the daily lives of people in this country and recommend how these can be brought about. The Consumer Strategy Directorate’s Insight Project aims to develop the consumer-focused target, investigating the evidence base and baseline measures for a consumer-focused human rights target and making recommendations as to the feasibility and potential scope of such a target. In addition, the project aims to gather evidence and make recommendations concerning the future focus of the work of the Human Rights Division. This is in accordance with one of the key reasons that led to the creation of the Consumer Strategy Directorate in autumn 2003. As Lord Falconer stated in the “Manifesto for a New Department”, the newly formed Department for Constitutional Affairs will put the public at the heart of all its activities and policies. The Consumer Strategy Directorate works with other divisions to develop a better understanding of consumers’ needs, ensuring that policy development and delivery are based on the experiences and expectations of the public.

Key Aims of the Human Rights Insight Project The detailed objectives of the Project are: 1. To gain an understanding of public awareness of, and attitudes towards, their human rights, in particular: • Understanding of what ‘human rights’ means to people and what are the most important elements of it to them. • Current awareness of their human rights. • Awareness of where to find out about their rights if there was a problem.

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•

Understanding of whether awareness of human rights correlates with any views of the quality of public services or views on government/ state bodies.

2. To understand the above, particularly in relation to: • those segments of the population most likely to use public services and • those segments of the population who are particularly vulnerable to breaches of their human rights and/or are less able to assert their rights / access public services. 3. To help develop proposals for realistic PSA targets or other policy initiative related to Human Rights that the DCA could adopt to drive forward improvements in services applying human rights principles in a way that delivers tangible and measurable benefits to the DCA’s consumers. • Is it sensible for the DCA to adopt a provider- focused shadow PSA target/ other policy initiative in relation to human rights? • If so, what might be realistic targets, how can we measure these and how often? • What initiatives / policy proposals / solutions will be most effective in helping the DCA to achieve these targets? 4. To gain an understanding of frontline staff/managers’ awareness/knowledge of, and attitudes towards, the HRA and human rights, in particular: • Understanding of what ‘human rights’ means to them and what are the most important elements of it to them. • Current awareness of human rights and the HRA • Awareness of how to deal with complaint procedures and alleged human rights breaches • Understanding of whether awareness of human rights correlates with any views of the quality of public services or views on government/ state bodies. 5. To provide evidence and help gain an understanding of the current ethos that exists among public services in terms of their HRA obligations. 6. To collect experiences – in the sense of direct and indirect evidence – of frontline staff and managers on the effect that implementing/ not implementing human rights makes to the quality of delivery of public services and the satisfaction of end-users. 7. Comparative consumer satisfaction with public services in organisations with good human rights practices versus organisations with poorer practices. 8. To gain an understanding of how often public services make information on the HRA and its underlying principles available to the general public.

9. To identify whether there are any links/ overlaps between equality and human rights regulations and procedures already in place Methodology of the Human Rights Insight Project With this report the first stage of the Human Rights Insight Project is complete. The main purpose of the first stage of the Insight Project was to carry out desk research to establish the scope of existing information and data in order to ensure that a planned second stage of original research is value adding. The second stage will include in-depth interviews, focus groups and workshops with consumers of public services. The Project comprises a number of research studies focusing on either consumers or providers of public services, or both – and sometimes on consumers as representatives of the general public. The Human Rights Insight Project focuses on those end-users who are most likely to suffer from any failure by providers to meet their human rights obligations. In addition, the Insight Project will consider the needs and experiences of ‘average’ users of public services.

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The Insight Project focuses on the civil rights underlying the Human Rights Act. These have been grouped into two categories. This categorisation is based on the working objective, which distinguishes: (a) improvement of public services through the incorporation of human rights principles (b) enhancement of the protection and respect of individuals’ human rights by public sector services. The working objectives are complementary. The project will focus on services that affect the majority of people in their daily lives especially the most vulnerable population (namely social/council and health services). These are the services, sample and human rights principles that this report has focused on.

Findings 1. Using the principles underlying the Human Rights Act When the Human Rights Act was first introduced to Parliament, it was hoped that apart from incorporating the rights enshrined in the ECHR, it would lay the foundations of a culture of respect for human rights across public services. Seven years after the passing of the Act and five years after its implementation, the Human Rights Act is used mostly within a legal context and it remains on lawyers’ desks. To create the ‘human rights culture’ which Ministers, academics and NGOs have so often referred to, strategic steps will need to be taken. These could treat the principles underlying the HRA as factors that can improve the delivery of public services. A programme that will be based on human rights principles could also use them as agents of a procedure that could increase consumer satisfaction with public services. To achieve this, the programme will need to encourage human rights friendly behaviour that does not stem from fear of litigation, but from the desire to develop a more tolerant, respectful and just society with improved public services. 2. Lack of awareness of human rights and the Human Rights Act According to the evidence presented in this report, there appears to be a lack of awareness among the public both in terms of the Human Rights Act and the principles that underlie it. This is an interesting finding as this lack may affect the setting and reaching of targets that will be based on the principles underlying the Human Rights Act. The way the Act was initially introduced and campaigned for did not provide the public with adequate information about its main features and use. It is very uncommon for consumers of public services to treat either the Act or its underlying principles as defence mechanisms, which they may use in their everyday lives. Even worse, it is highly unlikely that these principles are used to encourage a two way process that will lead to a human rights friendly behaviour that would be triggered automatically once a service provider and a service consumer meet. If human rights are not seen to be a ‘good thing’ there is no incentive to encourage greater understanding and use by either public service providers or users. 3. Misunderstanding and hostility around human rights and the Human Rights Act Misleading media coverage and inaccurate campaigns run by some political parties have spawned misinformation and hostility in relation to the Human Rights Act. This negative impact sometimes extends to cover human rights in general, as members of the public most often tend to associate them with either extreme cases of torture, or political correctness and high profile cases with celebrities and offenders or travellers seeking compensation for trivial reasons. 4. Treatment that is not compatible with the principles underlying the Human Rights Act There is evidence to suggest that there is still a long way to go in terms of respecting people’s human rights when providing them with public services. Data collected in recent studies carried out by academics, research centres, NGOs, charities and governmental bodies reveal

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numerous human rights breaches by all examined services i.e. social/council and health services. Consumers need to be given the opportunity to say what matters to them and report any abuses they may have experienced. Next Steps It is recommended that the next stage of the Human Rights Insight Project looks into the issue of awareness by carrying out qualitative research with members of the public. It is important that their views are heard directly and not through service providers as proxies. This research can be achieved only through a qualitative methodology carried out with interviews, focus groups, etc among users of the examined public services. This research is now underway. Furthermore, baseline data on the consumers’ human rights experiences with the examined public services is missing. This gap needs to be addressed. This however cannot be achieved only with qualitative analysis. Qualitative methodologies will prove to be useful in discovering the language that consumers use when referring to human rights principles and breaches. It can also help unravel the key themes and main issues that matter to the end user and could form the basis for a follow up analysis. But baseline numerical data will need to be carried out using quantitative methodologies through a survey of a representative sample of the UK population. In conclusion, it is recommended that the Human Rights Insight Project carries out qualitative analysis with in-depth methodologies followed by quantitative research to collect baseline data that will allow a clearer understanding of current situation with regards to respecting consumers’ human rights while receiving services from the examined public authorities. As part of a second stage of the Insight Project, the qualitative research proposed is underway.

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CHAPTER 1: INTRODUCTION AND OBJECTIVES 1.1. Scope and context of this report This report is the first stage of the Human Rights Insight Project, which is being undertaken by the DCA’s Consumer Strategy and Constitutional Directorates. It is envisaged that targets will be developed around the following three elements covering delivery by public authorities and public attitudes towards, and experiences of, human rights: iv. the number of public authorities with a human rights training strategy in place or who have carried out human rights training with their staff; v. the number of public authorities that have introduced human rights in their corporate planning and governance arrangements; vi. a target that reflects the consumer-focus of the Human Rights Act and which seeks to promote and measure improvements in the experiences of consumers and potential consumers of public authority services as well as public confidence in the institutions of the state as a direct result of a human rights culture being developed successfully within public bodies. The overarching aim of the Human Rights Insight Project is: to identify means and measurable indicators DCA could use to promote human rights-friendly service delivery by public authorities that corresponds better to the needs of users, particularly those from vulnerable groups. The Consumer Strategy Directorate Insight Project aims to develop the third element of the human rights delivery and performance project, investigating the evidence base and baseline measures for a consumer-focused human rights target and making recommendations as to the feasibility and potential scope of such a target. In addition, the project aims to gather evidence and make recommendations concerning the future focus of the work of the Human Rights Division. This is in accordance with one of the key reasons that led to the creation of the Consumer Strategy Directorate in autumn 2003. As Lord Falconer stated in the “Manifesto for a New Department”, the newly formed Department for Constitutional Affairs will put the public at the heart of all its activities and policies. The Consumer Strategy Directorate works with other divisions to develop a better understanding of consumers’ needs, ensuring that policy development and delivery are based on the experiences and expectations of the public. 1.2. ‘Human Rights Insight Project’ objectives The Project’s objectives agreed with the Human Rights Division are: 3. To gain an understanding of public awareness of, and attitudes towards, their human rights, in particular: • Understanding of what ‘human rights’ means to people and what are the most important elements of it to them. • Current awareness of their human rights. • Awareness of where to find out about their rights if there was a problem. • Understanding of whether awareness of human rights correlates with any views of the quality of public services or views on government/ state bodies. 4. To understand the above, particularly in relation to: • those segments of the population most likely to use public services and

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•

those segments of the population who are particularly vulnerable to breaches of their human rights and/or are less able to assert their rights / access public services.

3. To help develop proposals for realistic PSA targets or other policy initiative related to Human Rights that the DCA could adopt to drive forward improvements in services applying human rights principles in a way that delivers tangible and measurable benefits to the DCA’s consumers. • Is it sensible for the DCA to adopt a provider- focused shadow PSA target/ other policy initiative in relation to human rights? • If so, what might be realistic targets, how can we measure these and how often? • What initiatives / policy proposals / solutions will be most effective in helping the DCA to achieve these targets? 4. To gain an understanding of frontline staff/managers’ awareness/knowledge of, and attitudes towards, the HRA and human rights, in particular: • Understanding of what ‘human rights’ means to them and what are the most important elements of it to them. • Current awareness of human rights and the HRA • Awareness of how to deal with complaint procedures and alleged human rights breaches • Understanding of whether awareness of human rights correlates with any views of the quality of public services or views on government/ state bodies. 5. To provide evidence and help gain an understanding of the current ethos that exists among public services in terms of their HRA obligations. 6. To collect experiences – in the sense of direct and indirect evidence – of frontline staff and managers on the effect that implementing/ not implementing human rights makes to the quality of delivery of public services and the satisfaction of end-users. 7. Comparative consumer satisfaction with public services in organisations with good human rights practices versus organisations with poorer practices. 8. To gain an understanding of how often public services make information on the HRA and its underlying principles available to the general public.

9. To identify whether there are any links/ overlaps between equality and human rights regulations and procedures already in place Questions that will be asked include: • • • • •

Do ‘human rights’ add anything positive to the end-user’s experience or is it merely a safety net when things go wrong? What do ‘human rights’ mean to the average consumer? What are the most important proxies for human rights? What do people think it means to have a ‘good human rights culture’ in public services? Has the Human Rights Act changed people’s view of government / public authorities? Are people aware of their recourse to the Act if things go wrong? Do they need to be?

Expected deliverables include: •

An understanding of what ‘human rights’ and ‘a good human rights culture’ means to end-users (including the prevalence of different attitudes and where to focus future policy work)

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• •

•

The link between consumer awareness of HR and views on the quality of public services Recommendations as to whether consumer-focused shadow PSA targets or other initiatives around HR are sensible; if so, what they might look like; when and how to measure them; and recommendations on how to meet them. Attitudinal research among consumers (e.g. qualitative work with consumers ranging from those who are heavily dependent on public services to those who represent ‘average’ usage; potentially survey work to quantify findings) to deliver: • Understanding of what ‘human rights’ means to people and what are the most important elements of it to them. • Current awareness of their human rights. • Awareness of where to find out about their rights if there was a problem.

1.3. Background to the ‘Human Rights Insight Project’ When celebrating Human Rights Day on the 10th December 2004, Lord Falconer said: “We have a responsibility in Government to make the Human Rights Act work, not just in theory, but in practice. In the way the public services operate and the way policies are shaped – human rights are, more than ever, about real people and real lives” (Lord Falconer, 2004). The Human Rights Insight Project was introduced as a response to this call. The Human Rights Act 1998 (HRA) came into force on 2 October 2000 making the European Convention on Human Rights (ECHR) directly enforceable in domestic law. Most of the treaty’s provisions were familiar to UK judges. Britain was one of the ten countries which gathered in 1949 to found the Council of Europe, a regional body which two years after its creation introduced the ECHR. Nowadays, membership to this organisation – which presently consists of 46 member states – is conditional upon ratification and application of the Convention, which is interpreted and applied by the European Court of Human Rights. This sits in Strasbourg and has jurisdiction over cases that involve claims of breaches of human rights that are protected by the ECHR. Any individual living in one of the 46 member states can take his case to this Court provided that he has exhausted any available domestic remedies. There have been a few studies that attempted to measure the ECHR’s impact on the British legal system – both before and after the Human Rights Act. Despite a number of significant human rights improvements that have been achieved through legal battles, there is a feeling of disappointment as the Act seems to remain on lawyers’ desks, failing to bring a change in the way public bodies and the state in general interact with individuals. This non-legislative dimension of the Act and the principles it enshrines have been characterised as the core elements of a human rights culture. 1.4. What is a human rights culture? In 1999, the then Home Secretary Jack Straw said: “Culture is one of those words that gets used to mean a whole of different things – and sometimes nothing at all. What do we mean when we talk of building a culture of rights and responsibilities in the UK? These aren’t empty words or mere jargon. It’s what we want the whole public services in this country to move towards” (Straw, 1999). He then explained that ‘culture’ encompasses the habits of mind, the intellectual reflexes and the professional sensibilities, which are historically ingrained and typical of the behaviour of a particular group of people.

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The HRA was introduced in the hope of gradually contributing to development of a new framework where individuals’ human rights are better protected and respected. During the Bill’s passage through Parliament, the Parliamentary under-secretary of State for the Home Department said that one of the results of the new Act “will be the beginning of the strong development of a human rights culture” (O’Brien, 1998). This pledge was renewed a few years later through the words of the Secretary of State for the Home Department: “The Human Rights Act will help us rediscover and renew the basic common values that hold us all together. And those are also the values, which inform the duties of the good citizen. I believe that, in time, the Human Rights Act will help bring about a culture of rights and responsibilities across the UK” (Straw, 2000). The Parliamentary Joint Committee on Human Rights (JCHR) went a step further by identifying the elements, which they believe, comprise a culture of human rights. In particular, they said that this culture has two dimensions – institutional and ethical. “So far as the former is concerned, it requires that human rights should shape the goals, structures, and practices of our public bodies. In their decision making and their service delivery, schools, hospitals, workplaces and other organs and agencies of the state should ensure full respect for the rights of those involved… Achieving that requires public authorities to understand their obligations not only to avoid violating the rights of those in their care, or whom they serve, but also to have regard to their wider and more positive duty to secure everyone the rights and freedoms which the HRA and the other instruments define” (JCHR 2002/3). More importantly, the Committee said, to make a culture of human rights a reality, individuals need “to understand what their rights are, and [be] able to seek advice, assistance, redress and protection if they believe that their rights have been violated or are threatened with violation. It also requires that they understand their responsibilities for upholding those rights in their dealings with others”. So far as the moral or personal dimension is concerned, “a culture of human rights could be characterised as having three components: • First, a sense of entitlement. Citizens enjoy certain rights as an affirmation of their equal dignity and worth, and not as a contingent gift of the state. • Second, a sense of personal responsibility. The rights of one person can easily impinge on the rights of another and each must therefore exercise his or her rights with care. • Third, a sense of social obligation. The rights of one person can require positive obligations on the part of another and, in addition, a fair balance will frequently have to be struck between individual rights and the needs of a democratic society and the wider public interest” (JCHR, 2002/3). So, how would we know when a human rights culture has been successfully created? Maybe when there will be a “widely-shared sense of entitlement to these rights, of personal responsibility and of respect for the rights of others, and when this influences all our institutional policies and practices. This would help create a more humane society, a more responsive government and better public services, and could help to deepen and widen democracy by increasing the sense amongst individual men and women that they have a stake in the way in which they are governed” (JCHR 2002). 1.5. How to construct a human rights culture: the three mechanisms A culture of respect for human rights can be created and successfully enjoyed through the parallel engagement of the following three mechanisms:

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i. ii. iii.

the letter of the law as this appears in the clauses of the HRA and other domestic and international human rights and equality Acts/ treaties; the jurisprudence of both the European Court of Human Rights and domestic courts. It is through their case law that the principles enshrined by the Convention/Act are interpreted in practical terms; a pattern of a human rights friendly behaviour that is created not on a piecemeal basis or because of fears caused by past litigation, but through an automatic triggering of ethical standards that reflect the principles and spirit of the Act. Professor Francesca Klug sees this as a framework “which emphasises tolerance, privacy and autonomy on the one hand, and concern for the rights of others and the needs of the wider community on the other” (Klug, 2000).

In relation to the third mechanism, Lord Falconer’s 2003 pledge to the JCHR is relevant: “I am the head of the Department in Government responsible for human rights. I think it is incredibly important that I take all steps that I can, as a Minister, and through my Department, to promote a human rights culture right throughout Government and beyond” (Lord Falconer, 2003). 1.6. Where are we now in terms of building a human rights culture? Despite the media outcry that preceded and followed the HRA, its actual impact was minor. The DCA’s statistical update examining the effect of the Act on the court system in the three months following implementation concluded that less than a dozen human rights issues had been raised that could be termed new out of 1,738 judicial review applications to the administrative court during this period. The remaining applications would all have been launched notwithstanding the implementation of the Act. In the Court of Appeal Criminal Division, 277 out of 2,491 cases contained human rights points and in the Court of Appeal Civil Division there were only 2 cases that were solely dependant on human rights issues. However, more and more litigants started adding HRA points to their existing appeals. Moreover, criminal, public and common law started to be enriched with principles that are meant to bring the legal system a step closer to human rights values. Professor Klug described these developments as follows: “there is some evidence of a shift in culture – as people see benefits, reported press debates are conducted in a reasonable manner on the right to die with dignity or responsibilities of the state to child murderers. But there is clearly not enough” (Klug, 2001). More recently, the JCHR has supported this conclusion: “The need to comply with the Act has become an integral part of the work of public authorities [however] the Act has not given birth to a culture of respect for human rights or made human rights a core activity of public authorities” (Croft, 2003). Put another way, although the first two mechanisms that are required in order to bring and maintain a human rights culture seem to have been successfully employed, the third mechanism appears to remain dormant. “There is little serious attempt by any organisation…to use the HRA to create a human rights culture that could in turn lead to systemic change in the provision of services by public authorities” (BIHR, 2002). “Too often human rights are looked upon as something from which the state needs to defend itself, rather than to promote as its core ethical values. There is a failure to recognise the part that they could play in promoting social justice and social inclusion and in the drive to improve public services. We have found widespread evidence of a lack of respect for the rights of those who use public services, especially the rights of those who are most vulnerable and in need of protection” (JCHR, 2003).

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None of this is to suggest that individuals should not have the right to challenge violations of their rights in court. This is an integral mechanism in building and maintaining a human rights culture. However, litigation is not the only mechanism and indeed not the fastest. More importantly, used alone, it creates a false perception of the Act, which is most often presented as a lawyers’ text rather than a Bill of Rights for everyone, which was the initial intention of the Bill. “In any case, legal cases are costly for the service providers, can lead to a view that the Act is principally about attacking the state, and have a knock-on effect on contributing to creating a climate within which our public services are castigated for failing to meet the highest standards” (BIHR, 2002). In short, litigation is an essential tool to protect the rights of the individual or groups against the strong arm of the state, but it is not likely to be a useful tool in developing a culture of human rights. A question that follows from this analysis is: What are the strategic steps that will help to create a human rights culture? Lord Falconer said, “…It is incredibly important that I take all the steps that I can, as a Minister, and through my Department, to promote a human rights culture right through Government and beyond. There are four things I can identify that indicate a strategic approach. The first…is the setting up of a commission…I think that is a very important signal, that the Government cannot do it alone; [Second] it is making Government review how it is mainstreaming human rights; [third] it is making connections with outside bodies [e.g. Audit Commission]; and [fourth] it is making sure that the review of our obligations under various international instruments comes to an end as quickly as possible” (Lord Falconer, 2003). Particularly in relation to the third step, Lord Falconer said: “We are trying to find partners outside Government and talking to them about the way people outside Government promote human rights, and also what step we can take in order to increase awareness about what human rights involves…. I have two examples… David Lammy MP, in my Department, has been very active in making contact with the Audit Commission, and ensuring that the Audit Commission is in contact with local authorities to ensure that local authorities are taking steps to mainstream human rights activity” (Lord Falconer, 2003). Further research that commissioned for the Human Rights Division’s policy development work on improving the implementation of human rights principles is expected to shed light on these matters, investigating among other things how regulators, such as the Audit Commission, may be involved in the process of creating a human rights culture. The Audit Commission’s 2003 report on human rights is particularly helpful to understanding how this body could be involved, and this report aims to draw on some of its findings as they are also related to the consumer focus of the Human Rights Insight Project. 1.7. How can the ‘Human Rights Insight Project’ help to build this culture? Law and jurisprudence are playing their part; now the third of the mechanisms for building a human rights culture needs to be triggered (see 1.5 above). However, there is a deficit of hard data on how members of the public understand human rights and whether or how they have experienced the development of a human rights culture when receiving public services. The Human Rights Insight Project aims to fill this gap by meeting the objectives listed under 1.2. These should meet the need to develop a consumer evidence base for the Human Rights Division and may lead to the development of a shadow PSA target or other initiatives, if research demonstrates that this would be of value.

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1.8. The originality and contribution of the ‘Human Rights Insight Project’ The Human Rights Insight Project is the first study that endeavours to measure the impact of the HRA and the procedures it can employ to create a culture of respect of human rights. The most complete studies that have been conducted on measuring this impact are: (i) the 2002 British Institute of Human Rights report “Something for Everyone” supported by Comic Relief and written by Jenny Watson (ii) the Audit Commission’s 2003 Report “Human Rights: Improving Public Service Delivery” (iii) the JCHR 6th Report of Session 2002-3 “The Case for a Human Rights Commission”. However, these studies focus less on the public’s experiences than on providers’ failures. Moreover, the impact of the HRA on case law has been the focus of the ‘Human Rights Act Research Project’1 and the ‘Public Law Project’2. This report will draw on the findings of all these studies, comparing them with a number of other more specialised surveys that were carried out with individual groups of users of public services. This account will serve as the preparatory stage of the Human Rights Insight Project, providing a background to its second stage, which will be carried out with in-depth interviews, focus groups and workshops with consumers of public services. Further recommendations and conclusions will also be drawn from both this report and the qualitative research of the second stage to see whether follow up quantitative analysis or desk research might be needed before the targets of a possible shadow PSA programme or other initiatives are identified and crystallised. In any case, five years after the implementation of the Act and two years before the introduction of the country’s new Commission for Equality and Human Rights, there is an imperative need to measure the public’s: i. views, awareness and attitudes to human rights ii. attitudes, perceptions, aspirations and expectations in relation to public services iii. human rights experiences with public services. The Human Rights Insight Project will address this need by providing original qualitative and quantitative information that will be collected through fieldwork. These findings will be complemented by a parallel project that the Human Rights Division will commission. This work will focus on public authorities with the aim of identifying the possible barriers to, and opportunities for, developing a culture of respect for human rights capable of improving public services. This research will also seek to clarify any causal link between a high regard for/ competence in applied human rights from public authorities and the levels of satisfaction of the service users.

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Led by Prof. Francesca Klug based at Kings College London and then at the London School of Economics. 2 The Public Law Project (PLP) is an independent, national legal charity which aims to improve access to public law remedies for those whose access is restricted by poverty, discrimination or other similar barriers.

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CHAPTER 2: Human Rights in Context 2.1.

‘Human rights in the books’ vs. ‘human rights in action’

The Human Rights Insight Project is not concerned with the legal dimension of human rights, but with their day-to-day use by members of the public. Therefore, there is an important distinction to be made between what academics call ‘human rights in the books’ and ‘human rights in action’. ‘Human rights in the books’ refers to the legal framework that is constructed through the letter of the law (the articles of the HRA and other human rights and antidiscrimination legislation), the jurisprudence of domestic courts and the European Court of Human Rights as well as the theoretical work of different writers and academics. On the other hand, ‘human rights in action’ covers the principles underlying these statutes and case law, and which complement more general conceptions of social justice rights that form a human rights framework, which is necessary to create a culture of respect for human rights. The above distinction is also important as it highlights the difference between the articles of human rights legislation and international treaties (e.g. HRA and ECHR) and the principles that underlie them. Although articles can be interpreted and applied only within a legal framework and therefore have a narrower scope, principles have a social dimension which can be applicable throughout societies and institutions. Human rights principles are norms that are applied to all human beings and are the reasons for the existence of human rights treaties such as the ECHR. They inspire the legislator to provide legal guarantees (such as articles) that will better articulate them and make them enforceable and justiciable. While human rights in the books (legal framework) constitute the basis of the first two mechanisms needed to construct a human rights culture3, human rights in action (human rights framework) are the ingredients of the third mechanism. The latter is the focus of this Project. 2.2. The human rights principles examined by the ‘Human Rights Insight Project’ Although the above categorisation narrows down the broad area covered by the ‘human rights’ concept, there are further distinctions to be made in order for the Human Rights Insight Project to be effective and not abstract in its findings and recommendations. Traditionally, human rights have been divided into three generations. The rationale behind this categorisation lies mainly in the work of academics (e.g. Karel Vasak), and also follows the three watchwords of the French Revolution: Liberté, Egalité, Fraternité. All three are reflected in the Universal Declaration of Human Rights. • First Generation of Human Rights: Civil and Political Rights: These mainly serve to protect the individual from excesses of the state and they are preventative in nature (e.g. freedom of speech, rights to a fair trial etc)

3

As explained under 1.5, there needs to be a parallel engagement of: (1) black letter of the law (2) jurisprudence (3) a pattern of a human rights friendly behaviour that is created not on a piecemeal basis or because of fears caused by past litigation, but through an automatic triggering of ethical standards that reflect the principles and spirit of the Act

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•

•

Second Generation of Human Rights: Social, Economic and Cultural Rights. These are related to equality and, in social terms, they are meant to ensure all citizens receive equal conditions and treatment. They are mostly positive in nature, representing things that the State is required to provide to people under its jurisdiction (e.g. the right to work and to be employed) Third Generation of Human Rights: Environmental rights and other group/collective rights that focus essentially on fraternity and solidarity. By and large, the third generation rights have not yet been incorporated into any legally binding human rights equivalent.

The HRA covers only civil and political rights, while the other types of human rights are protected mainly through international conventions. As the primary concern of this Project are the human rights principles underlying the HRA, although social, economic and cultural rights will not be excluded in the research, they will not form the focus of its investigation. Consequently, the civil rights protected in the Act will form the basis of the Project’s research. This direction is in line with the DCA’s policy priorities. As Lord Falconer put it to the parliamentary JCHR: “The social, economic and cultural rights that you referred to are not part of our law in the way that human rights are under the HRA. We have signed various international instruments that commit us to promoting those cultural and social rights, but, plainly, my priority must be to try to promote human rights as defined in the HRA…[these are] what you rightly call civil and political rights…. It does not mean I will ignore the social and cultural rights referred to in those various international instruments. They have an important part to play. The priority should be, if I am the Human Rights Minister, promoting those human rights…that are in the Act” (Lord Falconer, 2003)4. Equally important is the notion of ‘positive obligation’. Up to the introduction of the HRA, the rights of the people in the UK could be summarised in one phrase: “the right to be left alone”. This was amplified in the Spycatcher case. Lord Donaldson said: “…the starting point of our domestic law is that every citizen has the right to do what he likes, unless restrained by the common law or statute” (AG v. Guardian Newspapers (No 2) [1990] IAC 109) Through the jurisprudence of the European Court of Human Rights, the notion of ‘positive obligation’ was created, imposing on the State the duty not only to refrain from human rights breaches, but also to take the necessary measures to prevent them. This is not an abstract concept, but one with concrete, practical significance especially for end-users of public services. For example, in the case of Whiteside v UK (1994) 76-A DR 80, the court identified a positive obligation on behalf of the Government to provide in their law for practical and effective protection from harassment. The applicant suffered domestic abuse by her husband and claimed that the failure of public authorities to protect her constituted violation of her rights as guaranteed by Article 8 of the Convention and Article 1 of Protocol No. 1. The final distinction to be made concerns the civil rights principles protected by the Act. Jurisprudence has defined elements of the rights set out in the ECHR, and the Human Rights Insight Project has divided this list into two clearly interrelated categories. This categorisation is based on the shadow working objective, which distinguishes: a. improvement of public services through the incorporation of human rights principles

4

Although the HRA covers both civil and political rights, the latter was not considered a priority for this Project the objectives of which had to be balanced against the larger shadow PSA programme.

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b. enhancement of the protection and respect of individuals’ human rights by public sector services (see Appendix II) While the former focuses on the service provided, the latter focuses on the individual. In consequence, the first four general thematic groups described below correspond to the service provided while the latter to the end user. This technical separation should not allow the assumption that the rights grouped under the first four themes are not related to individuals. Human rights, by definition, are ethical rules that gain their meaning from and for the individual. The distinction is based on the understanding of human rights as agents of a procedure that will incorporate them as guidelines to improve (a) public service delivery and (b) respect and protection of individuals’ human rights on individual bases. 2.2.1. Human rights principles to improve public service delivery Being treated with dignity and respect This broad category includes the following human rights principles: a. Respect for the person b. Right to be free from inhumane or degrading treatment c. Recognition of a person’s dignity because of his/her humanity d. Respect for a person’s home and family The first three are mainly protected by Article 3 while the last principle is protected by Articles 8 and 12, but a number of other articles may come into play. So far, the best definition of these principles has been provided negatively in the sense of listing types of treatment that are not respectful or dignifying. Their extreme forms are torture, inhuman or degrading treatment or punishment. The main element of these severe types of ill treatment is that they are motivated by an intention to cause suffering. However, the European Court of Human Rights ruled that a number of other types of treatment may be in breach of this principle – though in a milder form and without ill intention. For example, physical assault, the use of psychological pressure, keeping a person in inhumane conditions (e.g. dirty beds and wards), deprivation of sleep or food or drink, overcrowded wards, inadequate heating/toilets/sleeping arrangements, restricted recreation and contact with the outside world. This value also covers conduct that ‘grossly humiliates’ (issues of politeness are not covered), in the sense of treating someone disrespectfully because of who he/she is (e.g. children born out of wedlock, gay men and lesbians, elderly people etc). Intimate body searches are also covered. On the other hand, respect for individuals’ family and home is enshrined by Article 8. In general, ‘home’ is where one lives on a settled basis. The principle covers cases such as the peaceful enjoyment of residence in one’s home (e.g. being free from harassment, intimidation, noise, pollution etc), the right to live in a mobile home and avoiding intrusion (inspections, search etc). There is no right to a home per se. The notion of family now covers same sex partners as well as non-married couples, single parents, adopted children, children born out of wedlock, siblings and grandparents, grandchildren. Examples where this principle may be breached include: preventing fathers or mothers from establishing a relationship with their children, making communication between family members difficult or impossible, preventing identification of children given for adoption by their natural parents, preventing tracing of their natural parents by adopted children.

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A human rights expert interviewed by IPPR for the purposes of a 2004 project they carried out on human rights in the voluntary sector said: “It’s true that there are so many different standards but the human rights answer is that people need to be treated with dignity and respect because they are human beings. I believe that is a concept that people can hang on to and that it’s sufficiently concrete” (IPPR, 2004). Equality This has three dimensions: a. Non-discrimination against particular groups (e.g. on grounds of sex, religion, ethnicity, race, gender, age, social background, language etc) b. Social Inclusion c. Equality in the narrow sense The Human Rights Insight Project will focus mainly on the first aspect of equality. The main difference between non-discrimination and social inclusion and equality is that the latter two require a positive action on behalf of public authorities, whereas the former requires the state to avoid discriminating. For example, the latest equality legislation –known as positive duties- requires a number of public authorities to take active steps towards equality of opportunity and equal treatment. This is not the case with anti-discrimination, which may occur only in the context of another article of the HRA. Moreover, although the European Court of Human Rights is now leaning towards a linkage of equalities and human rights, in the UK, the long standing theoretical and case law tradition of separating the two has not yet collapsed and there is little evidence from jurisprudence to suggest that it should. Although anti-discrimination may sometimes be covered by equality legislation, equality is still not covered by human rights legislation (e.g. HRA). Therefore, equality and social inclusion are still not considered to be part of the human rights discourse. More importantly, equality and social inclusion will not form the focus of this research as they come under the responsibilities of the Office of Deputy Prime Minister (ODPM) and they are already the material for a separate PSA target (Social Exclusion Unit, 2005)5. In particular, ODPM, through its Social Exclusion Unit, aims to help “people or areas [that] suffer from a combination of linked problems such as unemployment, poor skills, low incomes, poor housing, high crime, poor health and family breakdown” (Social Exclusion Unit, 2005). These are all problems that may be due to social exclusion and inequality6. Fair Hearing Rights and involvement in decision-making This may include the following: a. Fair procedures b. Fair outcomes c. Participation/involvement in procedures and decision-making 5

The ODPM has set up the Race Equality Scheme with the aim to achieve “thriving, inclusive and sustainable communities”. Their objectives and performance targets include: “To work with all Government Departments and policies to raise levels of social inclusion, neighbourhood renewal and regional prosperity”. The PSA target states: “To promote better policy integration locally, regionally and nationally. In particular to work with Government Departments to help them meet their PSA targets for neighbourhood renewal and social inclusion” www.odpm.gov.uk 6 See for example, The Social Exclusion Unit (2004) Tackling Social Exclusion: Taking stock and looking to the future, London: ODPM

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These principles are protected by Article 6, which initially included only fairness in the courts’ context. However, case law has now expanded to include not just any tribunal but also the right to a fair and effective complaints procedure (e.g. residents of sheltered accommodation, adoption, repossession, taxes etc). Examples of where this value may be breached by public bodies include: being prejudiced; not involving all interested parties in a decision making process; not providing appeal procedures; not informing interested parties about the outcome of procedures; not being transparent during the decision making process and/or its outcome. Confidentiality and the right to respect for one’s correspondence This principle is mainly protected under Article 87 and covers the right of all individuals to uninterrupted and uncensored communication with others. This may include telephone and mail communication, e-mails and text messages. More importantly, it covers information recorded in public documents especially health records, documentation and reports kept by Local Councils, social services and GPs. (Collecting information about a person needs to be justified under the article’s exceptions and cannot be done arbitrarily)8. 2.2.2. Individual-focused human rights that may be relevant in particular circumstances a. Right to private life This right is mainly protected by Article 8, and is broader than the well-known concept of privacy. In fact it comprises four different elements: (1) Cases that relate to the personal identity of an individual (e.g. choice of name, sexual identity, mode of dress, how to present ourselves to others). (2) Cases that relate to the moral and physical integrity of an individual (e.g. corporal punishment in schools, or sexual assaults upon mentally ill people or the elderly or people in hospitals). (3) Cases that relate to individuals’ private space (e.g. spying on the activities of an individual, healthcare service staff leaving the door open when a patient is naked, the right of an individual to keep for himself some information that he may not want to share with others e.g. what types of books he reads, and also taking photos without permission). (4) It may also cover the sexual and social relationships of a person. The former includes legal, consensual sexual activities of any type. The latter covers the capacity by reason of cultural familiarity and linguistic facility to enter into social relationships with others. The development of this idea is yet incomplete but it carries with it important possibilities for those who may be isolated from wider society by reason of cultural tradition or educational opportunity. b. Right to life This is protected by Article 2 and may also include the right to death. Although the taking of one’s life is not automatically considered a violation, this has to be legal and justified having passed the test of proportionality. The Court has attempted to expand the scope of this right to cover matters such as the provision of medical care and a healthy environment but so far infringement has been found only in extreme cases.

7 8

Some aspects of confidentiality are also covered through legislation e.g. Data Protection Act. Also see Data Protection Act 1998 and the Freedom of Information Act 2000.

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c. Freedom of thought, conscience and religion: the right to believe This is guaranteed under Article 8 and has a place of pre-eminence in the Act. It covers the manifestation of one’s religious beliefs, changing religion, the decision not to have a religion, the choice to believe or not to believe. The Human Rights Insight Project through its second research stage will ask its participants to: (i) report and comment on the experiences they had while receiving health/social/council services and were related to any of the aforementioned human rights principles; (ii) understand the proxies they use when referring or using the aforementioned principles; (iii) discover the level of their awareness in relation to these principles; (iv) find out what and if these principles mean anything to them and whether they had ever considered using them in a legal context (i.e. through the HRA); (v) whether they might feel hostile against these principles and why. 2.3.

Human rights principles in the context of which services and users?

The aforementioned human rights principles will not be used in the abstract, but in the context of public services. The Human Rights Insight Project will focus on services that affect everyone in their daily life especially the most vulnerable groups. In particular: i. Health Services: (e.g. hospitals, GP surgeries, mental health institutions). ii. Social Services and Council Services9: (e.g. counselling, adoption, fostering, HIV support, Attention Deficit Disorder centres, Job Plus centres, principally housing, care homes, sheltered housing, childcare, advice and support services, care at home services/carers, and also careers counselling, youth clubs and societies, leisure centres, complaints, learning disabilities, licensing, litter, pollution, noise nuisance and libraries). The rights protected by the HRA and the ECHR are guaranteed to everyone, but there are people who may have greater need for human rights protection. In addition to the ‘average user’ sample, the Human Rights Insight Project will include the following groups: i. Frequent users of public services in institutions ii. Frequent users of public services outside institutions (Please see Appendix IV for a detailed breakdown of these two groups). Acknowledging the vulnerability of the different minorities making up the British society, the Human Rights Insight Project will make sure that their voices are heard. These groups are believed to be particularly vulnerable to human rights breaches as issues relating to their religious, cultural and other special characteristics may not always be respected by public authorities. Therefore, several sub-groups that will be taken into account are: i. People with minority cultural/religious/faith beliefs and traditions (e.g. Muslim men and women, Sikhs, people who have poor English language skills).

9

There is a large area of overlap between Council services and Social services; so these distinctions should not be interpreted too rigidly.

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ii.

People with communication difficulties (e.g. people with hearing difficulties, people with strong speech impediments, people whose sight is significantly impaired, stroke victims).

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CHAPTER 3: Public Awareness and Attitudes to Human Rights 3.1

Where are we now? Findings from the extant literature

Both before and after the introduction of the HRA, the DCA circulated information to the following stakeholders: i. ii. iii. iv.

Public Authorities Civil Servants Private and voluntary sectors Members of the public

These leaflets and guides (for a full list see Appendix I) were produced in the hope of raising awareness of the Act and the obligation it incurs on public authorities. Moreover, in 1999, the Home Office set up the Human Rights Task Force. Its purpose was to: (i) help Departments and other public authorities prepare for implementation of the Human Rights Act 1998; and (ii) increase general awareness, especially amongst young people, of the rights and responsibilities flowing from the incorporation of European Convention on Human Rights and thus to help build a human rights culture in the United Kingdom. The Task Force was dissolved in 2001, but according to the Home Office, its outputs in all government departments were: (i) management ownership of Human Rights Act issues, giving a clear lead, direction and support; (ii) internal reviews of legislation, procedures, policies and practices to check, so far as possible, compatibility with the Convention rights; (iii) guidance and instructions for all staff; (iv) training on the Act’s provisions and on the underlying policy; (v) awareness raising, guidance and training for subsidiary and hybrid public authorities, agencies and other bodies for which individual departments are ultimately accountable; (vi) awareness raising and information for the public. Finally, the government has spent some £5.5 million to enable courts and tribunals to receive training in their responsibility for giving direct effect to the rights protected by the HRA. According to the JCHR: “Spreading knowledge and awareness of the law [HRA] is an essential part of building a culture. But if it is left only to the courts, the original visions that the HRA should bring about a cultural change will not be realised. Litigation is an essential last resort in protecting the rights of the individual or groups, but it is not the most effective means of developing a culture of human rights” (JCHR 2002). The Home Office reported that the public advertising campaign they prepared for the HRA’s commencement in October 2000 had significant effects. They said: “During the first four weeks over 20,000 people telephoned for copies of the Department's introductory guide or study guide; and there were 160,000 hits on the web site during the same period. An estimated 1,200 written inquiries about the HRA were received by the Human Rights Unit during the first month of operation” (Home Office 2001).

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The Audit’s Commission 2003 report on human rights stated that: “Not only has the HRA increased public service providers’ awareness of the rights of the individual, but it has also meant an increased risk of legal challenge by service users” (Audit Commission 2003). Despite these efforts and positive messages, the bulk of the evidence suggests that current public awareness both of the HRA and human rights is not where it should be. Moreover, a number of academic and human rights bodies have claimed that low levels of awareness may undermine the application of the Act, the delivery of good public service and the development of a human rights culture. In the words of the JCHR: “We have not found evidence of the rapid development of awareness of a culture of respect for human rights and its implications throughout society, and what awareness there is often appears partial or ill-informed. We fear that the highwater mark has been passed, and that awareness of human rights is ebbing, both within public authorities and within the public at large” (JCHR 2002). As the Human Rights Insight Project is primarily interested in vulnerable groups and the way they perceive and experience the services they receive from public bodies, a closer look at some of these groups might prove helpful in understanding any awareness issues that might be related to the services they receive from the examined authorities. 3.2.1. Human rights awareness: children and young people One of the most decisive dates in the way public services are delivered to children was the 28 January 2003, when Lord Laming released his report on the Inquiry he carried out into the tragic events that led to the death of the eight-year-old Victoria Climbie. The case involved abuse and torture of the little girl by her carers. Although Victoria came into contact with four social services departments, three housing departments, two specialist child protection teams of the Metropolitan Police, two hospitals and a families centre managed by the NSPCC, her abuse eventually led to her death. The 2003 Report, which was presented to Parliament by the Secretary of State for Health, recommended a number of legislative and policy amendments intended to bring a change in the way children’s human rights are prompted and protected by public services. The BIHR 2002 survey which included organisations that protect and promote children rights reported that young people have no or little understanding of children’s rights issues and that overall awareness of the HRA among the population is low. BIHR concluded that there needs to be an increase in the level of human rights awareness among young people. More importantly, their survey showed that there is little understanding of the Act from staff and policymakers providing services for children; rather a low level general awareness which was often ill informed, and sometimes completely wrong (BIHR 2002). The Citizenship Foundation recently approached DCA for funding to support an initiative that will ensure that every state school and Pupil Referral Unit in England and Wales receives 30 free copies of the Young Citizen’s Passport (YCP) which includes information on the HRA. They also propose to reach excluded and disadvantaged young people through a network of youth organisations that provide services to some of the most hard to reach groups. The DCA has agreed to support this proposal.

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The DCA is also working with a number of partner organisations that have expertise in reaching disengaged groups and young people to prepare: Pocket Guide to the British Constitution: The purpose of this initiative is to produce an accessible guide to the Constitution that can be understood by secondary school students taking citizenship classes. The project is being led jointly by the Commonwealth Policy Studies Unit and the Constitution Unit of the University College London, with the assistance of the Citizenship Foundation. The first phase of the project is now complete (Feb 05) and the composition and design phase will begin shortly. Schools Debating Competition: The DCA is sponsoring The English Speaking Union’s (ESU) annual schools debating competition 2005/2006, which has been running for over 45 years. The competition will have a strong constitutional theme and the monies we have committed will enable the ESU to invest in outreach work, so that more state schools are encouraged and are able to participate in the competition. Scoping work on Education Centres: In conjunction with Consumer Strategy Directorate and the Civil Justice Council, the DCA is exploring the feasibility of designing and maintaining a network of Centres to enable it to make a real impact in the way that young people learn about their rights and responsibilities, and our democracy. A preliminary proposal has now been received and DCA will be providing a steer on next steps. Democracy series The DCA is exploring a proposal from the Hansard Society to develop and publish a set of pamphlets, the Democracy Series. Each pamphlet would contain an essay from a high profile author and would be launched at a public forum with PR support. The purpose of this initiative would be to encourage debate and discussion on topics such as rights, democratic engagement and participation. This initiative would enable the public to better understand democracy and the role of government. Production of the Series would begin after the General Election. The delivery of public services to children is a specialised area that deserves careful attention. Since the Human Rights Insight Project has a wider scope that is inclusive of all the vulnerable groups mentioned in the previous sections of this report, juveniles younger than 16 will not form the focus of its qualitative research. 3.2.2. Human rights awareness: disabled people A 2005 study by the Prime Minister’s Strategy Unit reported that there are currently 11 million disabled adults living in the country and 770 thousand disabled children. This equates to one fifth of the total population. This group is particularly vulnerable to human rights breaches as it is highly dependent upon others including public services. However, existing evidence suggests that disabled people in general know very little about the HRA or the principles that underlie it. In 2000, the Disability Rights Commission in collaboration with the Royal National Institute for Deaf People prepared a guide that was meant to provide basic information to public authorities about the HRA and its underlying principles. It aimed to make public services consider the important role the Act could play for disabled people and the way they interact with the state and its public authorities. The report also said: “Ultimately the success of the HRA must be measured by a cultural change that occurs because of shared values rather than court victories. This goal can only

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be furthered by raising awareness of the impact of the Act on disabled people and by constructive debates about the controversial issues that arise” (Daw 2000). However, studies such as the one carried out by the BIHR suggest that human rights awareness levels among disabled people are low. Awareness of the HRA in particular, is even lower while other discrimination legislation is more widely known and used. The report also concluded that these low levels of awareness also exist among providers for whom the HRA aimed to provide a useful framework to shape good practice and enable better decision making. Similarly, the Disability Rights Commission said: “It is clear to us that, by and large, public authorities, and those who inspect, advise and audit them, do not give a high priority to placing respect for human rights at the heart of their policies and practices. Insufficient energy is being given to communicating a vision to public authorities to help them understand how a culture of respect for human rights might look or how it could be delivered” (Gooding 2004). The JCHR, while investigating the case for a human rights commission, collected evidence from different NGOs, pressure groups and research centres specialising in the rights of disabled people. This showed that awareness among these groups is low and that an information campaign led by an independent body would be advisable. The Human Rights Insight Project will assist understanding of the level of awareness among disabled people and also test how a lack of awareness may affect the quality of services they receive from the examined public authorities. 3.2.3. Human rights awareness: older people Human rights awareness among people over the age of 65 also seems to be significantly low. According to the extant literature, without increasing awareness of this extremely vulnerable group’s human rights and also boosting their confidence both in public services and in themselves, violations will continue. This could be a serious barrier to the creation of a culture for respect of human rights, particularly since older people comprise the largest group of health care consumers (around 40%). In addition, older people cover at least a 35 years age span (65+), and include likely future users of services as well as those who may never need formal support. Finally, according to the UK 2001 Census 20% of the White population is above 60 years old and this number is constantly growing. This may imply an urgent need to increase awareness of human rights both among the older and younger generation. One of the most thorough studies of older people’s human rights within public services is the 2002 ” Age Discrimination in Public Policy: A Review of Evidence” by Help the Aged. The survey showed that older people both in and outside health and social institutions are generally not aware of their human rights entitlements. The HRA was not something they were aware of, despite in some cases being subjected to ill treatment that amounted to a human rights violation, most often without being aware of it. The study concluded inter alia “Raising the expectations of older people and their sense of their own worth and value both intrinsically and to others should be a major objective. Age discrimination is not simply a matter of barriers put up by others; many older people themselves develop reduced expectations with regards to their rights and abilities” (Help the Aged 2002). The study concluded: “Public awareness of age discrimination is low, certainly lower than awareness of other forms of discrimination…Even those people who are aware of it may be uncertain about how pervasive it is. For the general public and for the great majority of policymakers it is a hidden issue” (Help the Aged 2002). They then urged immediate action.

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Similarly, Action on Elder Abuse pointed out that older people ”don’t just not know what their rights are in HRA terms, they don’t know what their basic rights are in terms of the services that they receive from local authorities from the voluntary sector, how and when they can make complaints, what they can do to get redress”. However, engaging older people and attempting to increase their awareness might seem problematic considering their vulnerability and individual circumstances. In particular, the following difficulties will need to be considered: • • • •

• • •

•

•

Ageism and the role ascribed to older people in society does not encourage them to feel that their views are valued Older people can have low expectations, both of their own health and wellbeing, and of services, and so may be undemanding and uncritical They may be afraid of appearing ungrateful and of upsetting those on whom they feel dependent Older people are a large and diverse group. The vast majority live independently or with informal support, while a minority of them are wealthy and may afford private services Many of those receiving services do so on an individual basis in their own homes rather than collectively One in five people over 75 are unable to leave the house without help 6% of the over 65s will have some form of cognitive disability10 The Community Care Needs Assessment Project 1998-2002 reported that services are often provided in a way that reinforces the idea that older people can no longer manage their own lives (http://www.ccnap.org.uk/) The protective instincts of staff and carers toward vulnerable individuals can further restrict older people's right to make choices and decisions (Sheard 1999).

Apparently, the fact of older people’s dependency makes them reluctant to complain to or about those to whom they are very dependent. Furthermore, the aforementioned factors may be the cohort effect of the current generation of ‘older people. Younger generations may be much more likely to complain (e.g. greater sense of themselves as consumers of services), and this will mean that public services will have to raise their standards as those future consumers’ age. The 2002 empirical recommendations of a Help the Aged study are also relevant: “Older people have very great difficulty in challenging the violation of their human rights, not least because they may be quite literally dependent on the services responsible for the acts in question. They may be further impeded by illness, impairments of speech, hearing or sight, mental incapacity, lack of access to a private telephone or to contact with a third party, or fear. They largely lack knowledge of their rights – unsurprising when the whole system operates as if older people do not have such rights – and usually have no means of exercising them…” (Help the Aged 2002). In 2001, the Department of Health issued the “National Service Framework for Older People”. This sets a number of standards which although not strictly related to human rights principles may enhance empowerment and the creation of a human rights friendly behaviour within the health system. The significance of this framework and the up-to-date impact that it has particularly in relation to human rights will be discussed in the next section of this report.

10

South Humber Health Authority estimate based on 1996 population estimate

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The Community Care Needs Assessment Project, (CCNAP), after its 3 years assessment and research (1998-2002) with two health authorities and four local authorities recommended the following steps in engaging older people: • •

• •

•

•

• • • • • • •

Older people favoured face-to-face contact over other methods Their top priority was that they wanted to be interviewed by senior managers. They believed that senior managers needed to hear first-hand experiences, and would have the influence to act (This finding was not repeated with younger service users) Many disliked telephone interviews, but these were an option for some, so could supplement face-to-face interviews Written self-completion surveys were widely criticised and disliked (although the Older Person Needs Assessment survey conducted in South Humberside in 1998 got a 79% response rate) Carers liked group methods better than older people themselves. These could provide opportunities for a separate interview, which was not always possible at home Focus groups mostly attracted people in the 65-79 age group, so would under-represent older service users if used as the sole method of obtaining views Individual interviews proved better suited than focus groups for assessment of satisfaction Women wanted to be offered the choice of a woman interviewer Older people wanted to prepare, by knowing what they were going to be asked in advance They wanted to be able to decline to discuss any topic without question Feedback on how the information was used was considered important Asian people preferred an own-language interview to translated written questions Managers felt that the quality of information from a carefully selected small sample could match that from a questionnaire to larger numbers

Although their findings were not primarily oriented towards human rights standards and violations, they can still provide a useful guide for the Human Rights Insight Project. Through its second phase, the Project will explore the level of awareness of this group and also seek to identify the best methodologies that older people think could help them receive better services and greater respect for their human rights. 3.2.4. Human rights awareness: black, ethnic and other minority groups The 2001 census showed that black, ethnic and minority groups comprise almost the 9% of the total UK population. There is some evidence to suggest that the problem of human rights awareness with this group is more serious that with the rest of the population. Even worse, this lack may be directly related to experiences of poor quality public service delivery. For example, a 2001 study by Help the Aged and Policy Research Institute showed that older people from black and ethnic minority groups know very little or nothing at all about the available services and the standards they should expect from the authorities that provide them. One of the reasons was the language barrier that this group faces. The study showed that this population tends to receive a different level of service than the average user just because of language difficulties. The poor information they received was also considered to be problematic.

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In September 2002, Age Concern released a report, which suggested that black and minority ethnic populations experience a lack of initiative in fighting or even resisting racism and ageism. However, as the Race Relations (Amendment) Act 2000 came into force, requiring public authorities to demonstrate how they are actively promoting racial equality, guidance has been developed on how services can be provided sensitively to minority ethnic communities. For example, the Commission on Racial Equality and the Association of Local Government have produced ‘good practice’ guidance on promoting racial equality, including direct service provision. Some social service departments have developed their own good practice, such as Kent County Council’s publication “Culturally Competent Care Services” (Kent County Council 2002). A 2001 workshop carried out by Age Concern showed that older people from black and minority ethnic groups face a number of problems that are related to a lack of information and awareness of the standards they should expect from public services. These may or may not include human rights principles (Age Concern 2001). The organisation also reported that lack of access to information and public services can result in older people from black and minority ethnic groups being socially isolated from their peers (Age Concern 2001). The Department of Health has a number of statistical databases and data collections that hold records on ethnic origin and the problems often troubling members of black and ethnic minority communities when receiving health services. Overall, the evidence suggests that levels of human rights awareness of this group are lower than the average user. The Human Rights Insight Project will assist better understanding of this difference by including users from these groups in the qualitative study during the second stage of the Project. The Project will also investigate how a higher level of human rights awareness might help them experience better public services. 3.3.

Not just an issue of awareness: misunderstanding and hostility

The extant literature also suggests that not only is there a problem of public human rights awareness, but also of misinformation/misunderstanding and even hostility. This occurs at two different levels. Firstly, in relation to the HRA and secondly in terms of what is understood as human rights and what they have traditionally been associated with. 3.3.1. Misunderstandings and hostility in relation to the HRA Misunderstandings and hostility in relation to the HRA occurs among providers as well as the general public. In relation to service providers, they have demonstrated confusion and misunderstanding of the HRA. This includes public authorities as well as the voluntary and private sector. The BIHR survey concluded that some voluntary sector agencies have not used the HRA because of the adverse publicity it might create. It also showed that there are clear signs of misunderstanding and bad information about the Act’s principles and extent of application. Similarly, the Audit Commission’s survey of 175 public bodies showed that: “…decision makers in public bodies have yet to absorb and incorporate in their decision making processes the values inherent in the HRA” (Audit Commission 2003). The Human Rights Division planned research project with public service providers is expected to shed further light on these matters and provide its policy programme with complementary information which should help show what needs to be done to improve users’ experiences and overall satisfaction with public service delivery.

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In terms of the general public, there is evidence to suggest that there is misunderstanding and even hostility towards the HRA. This is mainly due to misleading media coverage particularly by the tabloid press and television (See Appendix V for some examples of misleading media coverage of the HRA). Some evidence to support this claim can be found in the findings of the 2004 IPPR study which was carried out with several bodies from the voluntary sector: “Some sections of the Press have characterised the HRA as a ‘criminal charter’ and the last refuge for unmeritorious defences”. In 2000, Francesca Klug in “Target of the Tabloids” went further in analysing the impact of a negative press portrayal of the HRA: “If the government promote the Act they risk unleashing ‘Eurochaos’ scare stories which ministers fear will provide officials with excuses for not exercising powers that are commonplace in other state which have incorporated the ECHR into local law” (Klug 2000). A study carried out by the Telephone Helplines Association supported Klug’s comments: “A large proportion of the general public in the UK is deeply suspicious of anything coming from Europe. It is a shame that useful directives are rarely shown to come from Europe, whereas anything coming from there which can be described as ‘bureaucracy run mad’ is splashed all over the red tops” (THA 2003). Members of the public are often confused about the origin and source of the HRA. As Klug’s and IPPR’s statements suggest, the public often believes that the Act is imposed by the European Union and that the European Court of Human Rights is a Union body, which, through its decisions, negates UK sovereignty and the authority of Parliament and the judiciary. Misunderstanding and hostility in relation to the HRA can also be ascribed to campaigning by various political parties. For example, the Conservative Party has recently announced the establishment of a commission to investigate the workings of the Act with a view to reforming or repealing it. The shadow Home Secretary said: “The HRA has given rise to too many spurious rights. It has fuelled a compensation culture out of all sense of proportion and it is our aim to rebalance the rights culture” (Davis 2004). In similar vein, the Spectator wrote: “considerations of people’s supposed rights often paralyse sensible action [and] preclude kindness and common sense…they drive out considerations of…decency, tolerance [and] mutual obligations” (The Spectator 24.4.04). The 2002 report of the JCHR warned that: “The enthusiasm to make the HRA come alive as a measure which places positive duties on public authorities, and which should promote a culture of respect for human rights in every aspect of public life, needs to be rekindled… Making a culture of human rights a reality requires that individuals are able to understand what their rights are, and are able to seek advice, assistance, redress and protection if they believe that their rights have been violated or are threatened with violation. It also requires that they understand their responsibilities for upholding those rights in their dealings with others” (JCHR 2002). The literature suggests that a lack of awareness combined with a level of misunderstanding and hostility that seems to exist in relation to the HRA are issues that need to be explored thoroughly. These can be factors that may hamper the creation of a human rights culture. Action to redress the balance could possibly constitute part of a shadow PSA programme or other initiatives. The Human Rights Insight Project will aim to explore these matters further and understand the extent to

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which the media and other factors have created a false impression of the Act and whether this has influenced its use for improving public service delivery11. 3.3.2. Misunderstandings and hostility in relation to human rights The second level of confusion concerns the meaning and significance of human rights more generally as opposed to the HRA itself. Various studies have suggested that: i. ii. iii. iv. v. vi. vii.

Human rights are often conceived by the public to be used only for either extreme cases of torture and inhumane treatment12 - or as a hindrance in the war against terrorism. Human rights also tend to be seen as luxury entitlements used by celebrities, travellers or even convicted criminals who want to avoid punishment or claim compensation for trivial reasons. Human rights are also often associated with political correctness or conceived in narrow legalistic terms and largely of interest to lawyers. Few people immediately associate human rights with their everyday encounters with public services while only on rare occasions are civil rights perceived to be about the individual rather than the community13. Human rights are also believed to encourage a ‘compensation culture’, “a name, blame, shame and claim culture, the American Model that we all wish to avoid” (HRH The Prince of Wales to the Lord Chancellor, quoted by the Daily Telegraph 2002).

Some additional evidence to support the above claim can be found in the 2004 IPPR study, which was carried out with organisations from the voluntary sector. The study concluded that when people are asked “what human rights mean to them… the typical response is: disappearances and torture overseas or protecting the rights of terrorists or people like Myra Hindley. It seems that they have never had anyone raise human rights in any other contexts” (IPPR 2004). The IPPR study asked its participants to comment on the following statements: ‘human rights have more to do with civil liberties for individuals than with social justice issues of excluded groups’. Nine out of twenty-seven organisations agreed that this was the case (of which two agreed strongly) and eighteen disagreed (of which ten disagreed strongly). Their report also said: “Celebrities like Naomi Campbell and Catherine Zeta Jones have used human rights arguments to help protect themselves from unwanted media intrusion. Their well-publicised court cases have encouraged a sense that human rights seem to be principally of interest to expensive lawyers” (IPPR 2004). 11

The Consumer Strategy Directorate is currently currying out a parallel study to better understand the public and organisational attitudes and behaviours that underlie the compensation culture that appears to exist in the UK. The Human Rights Insight Project may prove to be useful in this regard. 12 In a live discussion on Radio 5, Late Night Live, 2.10.02, an Asian man who fled to Britain 30 years ago phoned in to tell to the radio audience: “I came here because Britain is a free country. We don’t need a Bill of Rights”. 13 In 2002, in a series of letters to the Lord Chancellor, the Prince of Wales wrote: “human rights legislation is only about the rights of individuals” (Telegraph, 26/09/2002). However, according to the latest report of Mr. Alvaro Gil-Robles, the Council of Europe’s Commissioner for Human Rights, the Council was concerned with the frequency with which calls for the need to rebalance rights protection were heard. These calls, the Commissioner said, argue that human rights have shifted too far in favour of the individual to the detriment of the community. However, the Commission said: “…It is perhaps worth emphasising that human rights are not a pick and mix assortment of luxury entitlements, but the very foundation of democratic societies. As such, their violation affects not just the individual concerned, but society as a whole; we exclude one person from their enjoyment at the risk of excluding all of us” (Council of Europe, 2005)

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More evidence can be found in the JCHR 2002 report: “Human rights are widely misunderstood. They tend to be seen only in terms of offering protection from the worst excesses of anti-democratic and despotic regimes, or as the concern only of those who are fundamentally at odds with majority views in society” (JCHR 2002). Francesca Klug argued that: “Given the absence, to date, of human rights education in schools, most people glean their understandings of bills of rights from American movies and news reports that gun control cannot be introduced into the US as a result of this albatross. There is confusion between human rights, bills of rights and international or regional human rights treaties. This general lack of clarity tends to result in one of two repeated misconceptions. First, that all bills of rights are presumed to be in the image of the liberal, American model with its Supreme Court that can overturn all legislation. Second, that every time the European Court of Human Rights makes an adverse judgement against the UK, it is assumed that this is part of a plot hatched in Brussels to undermine British sovereignty. In fact, of course, the ECHR has nothing whatsoever to do with the European Union…” (Klug 2000). Furthermore, the 2004 desk research carried out by Age Concern also showed that: “Both awareness of human rights among public bodies obliged to promote them, and the understanding by the public enjoying their protection, is low” (Age Concern, 2004). To conclude, the evidence suggests that apart from a lack of awareness of human rights and the HRA there is also a level of misunderstanding, misinformation and even hostility in relation to the Act and human rights in general. The Human Rights Insight Project will aim to explore these matters further, testing at the same time whether they can pose difficulties in the setting of possible shadow PSA targets or other initiatives that will aim to improve public service delivery using human rights standards. 3.4.

How much awareness?

Overall, the findings from the literature suggest that more human rights awareness is needed in terms of the principles underlying the HRA and, more importantly, in relation to what human rights mean more broadly. This is an important finding which has to be weighed carefully. A human rights campaign would need to identify first the language that its target audience speaks i.e. the public, or specific segments of the population who need more information most. For instance, the term ‘human rights’ might not be appropriate, as it has been created by academics and practitioners in the field, and it is very abstract in its meaning. Identifying the common and most appropriate terminology for any human rights awareness raising activities is an objective of the original consumer research being carried out as the second phase of this Project. Any concept of rights, and this is especially true of human rights, has to be closely allied to the concept of responsibilities. Individuals are entitled to demand their own rights from duty bearers, but they also have to respect the rights of others. However, this does not mean that citizens need to become experts in human rights. Put another way, to behave in a manner commensurate with the letter and the spirit of the HRA should not require expert, or even any, knowledge of the Act or its principles. Rather the aim of the HRA is to create a virtuous circle of human rights behaviour in which service providers fulfil their positive duties under the Act and consumers are able to encourage this behaviour on two fronts. First by expecting

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service providers to achieve this standard of provision and secondly by themselves displaying ‘human rights friendly’ behaviour. A shadow PSA programme or other initiatives that will aim to fulfil this virtuous circle will have to strike the right balance that will empower and include citizens, while avoiding at the same time disrupting their everyday lives. This virtuous circle of human rights and responsibilities is illustrated by figure 1 below:

Figure 1: The virtuous circle of human rights and responsibilities

There have been studies, which may prove helpful in considering how best this balance may be achieved. For example, a survey conducted by the Prime Minister Strategy Unit suggested that when reforming any public services to achieve the greatest public value14 possible: “There is clearly a balance to be struck between involving the public sufficiently to ensure that government actions reflect their preferences and are legitimate, and on the other hand overburdening the public with questions and forms of involvement that are properly the concern of elected representatives and officials” (PMSU 2002). Although the study’s focus was not human rights, its analysis, conclusions and recommendations can be used in the context of this report. The Strategy Unit concluded that when the right balance is struck and the consumer is involved appropriately, many benefits accrue. In particular, it suggested the following steps: • • • •

identify the issues on which the public will want to be involved, to obtain citizen views where important but not to be over-demanding; provide forums in which citizens/groups can learn about issues, express views, explore scenarios and seek to reach accommodations that can inform policy; recognise the limits of ‘revealed preferences’ and exploring the potential of ‘stated preference’ approaches that focus on policy trade-offs; recognise that as well as listening to the public, we might also develop techniques that delegate (at least in part) decision making responsibility to the public.

A question remains as to whether a greater level of engagement and empowerment should be a target in relation to vulnerable populations such as disabled people, 14

Public Value refers to the value created by government through services, laws, regulations and other actions.

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older people or even mentally ill patients. The Human Rights Insight Project will prove particularly helpful in unveiling what matters to these groups and how they want to be engaged (or not) in a process that will aim to enhance a culture of respect within public services. To conclude, the virtuous circle of human rights and responsibilities inspired and targeted by the HRA is dependent upon a successful engagement of the public. This involves a process of empowerment that can be achieved by providing a level of service that consumers come to expect on the one hand and by providing enough knowledge to enable them to challenge the system when the service is poor. While seeking ways to engage and empower consumers, the following criteria need to be kept in mind at all times: i. the ultimate goal should be the improvement of the delivery of public services and the better protection and respect of individuals’ rights; ii. this process should not over-burden individuals; while iii. direct consultation should be sought to identify the best methodologies in using the principles underlying the HRA to improve the delivery of services to vulnerable groups which might indeed not be able to participate in this process at all. 3.5.

Conclusions and next steps

Given all of the evidence to indicate a lack of awareness of human rights principles or the HRA, awareness raising could be a potential goal to form the subject of a shadow PSA target or other policy initiatives. v The government’s official position in relation to the provision of public services has been expressed in the following 2004 statement from the Prime Minister: “We are proposing to put an entirely different dynamic in place to drive our public services: one where the service will be driven not by managers but by the user – the patient, the parent, the pupil and law-abiding citizens” (OPSR 2004). It is highly questionable how this will be achieved without reaching first an acceptable standard of public awareness of human rights. There is a strong argument that appropriate levels of awareness could put the user of public services at the heart of their design and delivery. It could allow users a greater autonomy and empowerment in the sense of having an awareness of the minimum standards they should expect from all public services in terms of key human rights principles. All in all, this process should contribute to what the Government has described as “the enabling society”. This will need to take into account the special needs of vulnerable groups (e.g. older people, disabled people). v The Queen’s Speech of May 17th 2005 announced: “My Government is committed to creating safe and secure communities, and fostering a culture of respect”. In the debate following the speech, the Prime Minister added: “"Parents, local communities, local people have to join with law makers and law enforcers to make a difference” (Blair 2005). v The British Government is also legally bound by the international UN Paris Principles to “establish independent bodies, which will raise public awareness of human rights…” The task of increasing human rights awareness will be principally addressed by the Commission for Equality and Human Rights. However, this body will not be operative before 2007. v Especially in relation to health and social services, there is an additional statutory obligation on the state to engage and involve informed users. In particular,

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Section 11 of the Health and Social Care Act 2001 places a duty on NHS trusts, Primary Care Trusts and Strategic Health Authorities to make arrangements to involve and consult patients and the public in service planning and operation, and in the development of proposals for changes. This is a new statutory duty, which means consulting and involving: i. not just when a major change is proposed, but in ongoing service planning ii. not just in the consideration of a proposal, but in the development of that proposal; and iii. in decisions about general service delivery, not just major changes. v In its Sixth 2002-3 Report, the JCHR directly called on the Government to address the current lack of human rights awareness both among public service providers and public service consumers (JCHR 2002-3) v “Without more attention paid to the promotion of the HRA and the principles which lie behind it in a way that makes it accessible to lay people, the vicious circle of unresponsive public services which lead to legal challenges cannot be broken” (BIHR 2002) v Apart from a lack of awareness there is also a considerable degree of misunderstanding both in relation to the HRA and human rights. This applies both for consumers and providers of public services and may add a level of hostility against the Act and its underlying principles. In conclusion: i. ii. iii. iv.

One of the objectives of the Human Rights Insight Project is to measure public awareness of human rights. This will be done through original research in the second phase of the project. We will also explore any possible links that awareness – or lack of awareness and misunderstanding/hostility – may have with the delivery of public services, and whether a shadow PSA target or other initiatives could sensibly be formed around awareness of human rights principles or even the HRA itself. The research will be particularly interested in measuring vulnerable groups’ level of awareness and how this may correlate with their perceptions of the services they receive.

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Chapter 4: Satisfaction with Public Services: Human Rights and other Drivers This part of the report will examine factors that define and/or increase satisfaction with public services. It will draw a link between satisfaction and improvement of public services, placing the discussion within the context of human rights. In particular, chapter four will provide evidence from the extant literature, which shows where current practice is in terms of human rights and other drivers of satisfaction with public services. Informed by this, stage 2 of the Insight Project will explore the most important drivers of satisfaction with public services through original research in order to understand better: • the importance of human rights in ensuring end-user satisfaction; • which drivers of satisfaction are the most important; • and what any trade-offs might be when addressing priorities for public services providers. 4.1.

What are the constituent elements of satisfaction?

The level of satisfaction or dissatisfaction that results from an encounter between a service user and provider depends on two variables: (i) the user’s expectations of the service they will receive; (ii) their perceptions of the service they have received. According to the literature, there are different models, which attempt to explain the link that may exist between expectations/perceptions and satisfaction (Zeithaml 1990). The analysis of this report will be based on the literature’s dominant model. This analyses whether customers’ expectations are confirmed or not by their perceptions of the service they have received. The model works as follows:

Figure 2: Measuring customer satisfaction

For example, if a user’s expectations are exceeded by their perceptions of the service she has received, then that user will be satisfied. A question that follows from this is: what are the factors that shape consumers’ expectations? If these are identified, then we can begin to work towards an increase in customer satisfaction by ensuring that expectations and experience are more closely aligned. According to a study carried out by the Performance and Innovation Unit of the Cabinet Office, the following factors are decisive in shaping expectations of consumers of public services:

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Factors Shaping Expectations Personal needs

Previous experience

Media and word of mouth

Reputation

Personal beliefs/values

Nature of client groups

Other explicit or implicit service communication

Description This refers to the individual needs of each user. Obviously, these will vary from service to service and more importantly from user to user. This refers to the experience that someone has from a service. If that was a really bad experience, the expectations will be reflective of that. Media (newspapers, TV, radio, magazines etc) as well as the views of friends and relatives seem to play a rather significant role in shaping users’ expectations with public services. This applies particularly to individuals who are not frequent users or who in fact have never been in contact with the examined public services. This can cover bad or good reputation of the government, the service, the responsible minister, the institution and its managing and frontline staff. Users often carry their own personal beliefs and biases. One of the most obvious groups are people who do not support public services as a whole. Certain groups (e.g. elderly, children, people from cultural, faith or religious minorities) carry characteristics that influence their expectations. For example, data show that older people tend always to be more satisfied with public services in contrast to young people (see Table 10). This may cover printed material or statements from staff that can have a direct impact on expectations. Finally, the physical appearance of building etc can also have an impact on consumers’ expectations from the service authority that uses them.

Table 1: Factors shaping customers’ expectations with public services

As it is obvious from this analysis, perceptions represent a more objective view of actual delivery, while expectations can be very subjective. Perceptions are also closer to actual reality. This means that for perceptions to be changed reality will have to change too. For instance, to change current perceptions of the way health services are delivered, there needs to be some significant improvement in the practice of the responsible authorities. Expectations however are different, as they are not necessarily attached to actual reality. This report has discussed the influence that media can have on the public particularly in relation to human rights and public services. In 2001, MORI carried out a national survey on understanding customer satisfaction with consumers of public health

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services. The survey showed that the media can be important in influencing satisfaction ratings, particularly among non-users. For example, the net satisfaction ratings of the NHS rose by 16% during the weeks of the NHS anniversary. Figure 3 maps media coverage of the NHS anniversary, and public awareness of the event. The right hand section of the figure shows how satisfaction with the NHS jumped in the week of the anniversary –probably reflecting awareness and media coverage (MORI 2001).

Figure 3: Impact of media coverage of the NHS anniversary on satisfaction (MORI 2001)

4.2.

Factors that drive customer satisfaction with public services

Directly related to the above analysis is the question: what drives consumers’ perceptions of public service delivery? By identifying these factors we will become aware of the areas that can be improved to influence overall satisfaction. A ranking of these factors will also be attempted on the basis of their impact on satisfaction. To identity these factors this report will use SERVQUAL, the most popular assessment tool of service quality (Raymond 1993). This methodology is based on numerous qualitative studies that were carried out on what consumers value the most in the delivery of services. SERVQUAL developed a set of five dimensions, which have been consistently ranked by customers to be the most important for service quality regardless of service industry. These are:

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Dimension

Description

Tangibles Reliability Responsiveness Assurance Empathy

Appearance of physical facilities, equipment, personnel and communication materials. Ability to perform the promised service dependably and accurately. Willingness to help customers and provide prompt service. Knowledge and courtesy of employees and their ability to convey trust and confidence. The caring, individualised attention the firm provides to customers.

Table 2: SERVQUAL dimensions measuring service quality

According to the literature, the significance of the above factors in determining satisfaction is not the same. For instance, the absence of some factors (e.g. reliability) can have a strong impact on dissatisfaction levels. However, the presence of reliability may sometimes be taken for granted and hence increased performance may not lead to higher satisfaction levels. Moreover, people may be willing to tolerate small movements in some of these factors without any impact upon their satisfaction with a service (PIU 2001). Table 3 provides a more thorough explanation of the different types of factors that may influence customers’ satisfaction with services. Types of Factors Dissatisfying factors

Satisfying factors

Critical Factors Neutral factors

Description If such factors are perceived to be inadequate then dissatisfaction will result, but any increase in performance above adequacy has little effect on perceptions. For example, the presence of a dirty fork is likely to make customers dissatisfied, but a very clean fork is unlikely to add to satisfaction. When improved beyond adequacy, these factors can have a positive effect on perceptions. When these factors are present though there is little effect on satisfaction. For example, if a waiter does not remember a customer from a last visit to the restaurant, then it is unlikely that this will create dissatisfaction. However, if the waiter does remember the customer then it is likely that he will be delighted. These are factors where changes in performance affect both satisfaction and dissatisfaction ratings. In the example of a restaurant, slow service can cause dissatisfaction, while speedy service can increase satisfaction. Here satisfaction is not responsive to changes in performance.

Table 3: Types of factors that influence customers’ satisfaction with services

4.3.

Where do human rights fit in this analysis?

For the purposes of this report, it is important to put the above discussion in a human rights context. In particular, as the shadow working objective refers to an improvement of public services using human rights standards, it is crucial that we identify: (i) the SERVQUAL dimension to which human rights belong; (ii) the type of factors human rights are when determining satisfaction. The first will determine the ways in which human rights can affect perceptions, while the second will show how human rights currently affect satisfaction with public services. No further analysis will be carried out on the factors affecting expectations, as these are applicable throughout services and across factors including human rights.

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Human rights fall under the dimensions of Responsiveness and Empathy. The Cabinet’s Office’s study ‘Attitudes to Key Public Services’ used a number of past surveys to rank the SERVQUAL dimensions according to their impact on satisfaction. The results were: 1st Reliability; 2nd Responsiveness; 3rd Assurance; 4th Empathy; 5th Tangibles (Cabinet Office 2001). Based on this understanding, although human rights do not appear to be at the top of the pyramid, they are still ranked second and fourth and thus can be decisive in determining satisfaction with public services, at least in theory. However, human rights may also come under reliability if they are incorporated in the job description of staff working in the examined public services. For example, nurses or doctors working within the NHS can not only be obliged to be effective in the delivery of their services but also human rights friendly. If delivery and effectiveness are attached to a human rights behaviour then reliability can also be used to refer to human rights. The HRA provides the legal justification and mechanism in going about this change. Evidence to support these findings will be sought through the second and possible third stage of the Human Rights Insight Project carried out users of public services. In terms of what type of factors human rights are when determining satisfaction, they fall under the first category of dissatisfying factors. This means that if they are perceived to be inadequate, then dissatisfaction will result, but any increase in performance above adequacy will have little effect on perceptions. For example, breach of the human rights principle of respect for customers’ dignity (e.g. patients waking up after they have been operated on to find themselves naked in front of strangers), will decrease satisfaction. However, it is unlikely compliance with the same principle will increase satisfaction as the right is taken for granted. This does not mean standards should not be improved. On the contrary, human rights are factors that are taken for granted for a reason. This is because consumers assume that they are already applied. When they realise that they are not respected, then there is great disappointment. It is therefore anticipated that any measurement of improvement will be difficult, as any change will not be necessarily visible to all users who take these factors for granted. The significance and necessity of the Human Rights Insight Project becomes even more apparent as it aims to illustrate what matters to the consumer in terms of delivering public services within a human rights framework. By creating and respecting this framework, a service will not have to suffer from any dissatisfying factors that are due to human rights breaches. This will stop dissatisfaction but will not necessarily increase satisfaction. The next section will use data from the extant literature to provide an account of where the examined public services are in terms of applying and respecting the principles underlying the HRA. This should also give an indication as to where these services currently are in terms of public satisfaction. 4.4.

Where are we now in terms of respecting human rights while delivering public services: evidence from the extant literature

To construct this account, the report has used studies that have recently been carried out with public services. Although some of these surveys were not primarily concerned with human rights, they provide evidence that can be used to better understand the correlation between factors of satisfaction that fall within the human rights framework and factors that don’t.

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4.4.1. Public services and children: the evidence so far In the 2003 Green Paper “Every Child Matters”, the Prime Minister said: “There have been reforms but more can and must be done…we are proposing here a range of measures to reform and improve children’s care – crucially for the first time ever requiring local authorities to bring together in one place under one person services for children, and at the same time suggesting real changes in the way those we ask to do this work carry out their tasks on our and our children’s behalf.” (Blair 2003). The need to reform public services to children became apparent after Lord Laming’s inquiry into the death and suffering of Victoria Climbie. This case brought the British public face to face with the realities of a society whose public services failed to intervene where a child’s rights were so obviously being breached. “Social services, the police and the NHS failed to do their basic things well to protect her” (TSO 2003). This case is a recent example which in combination with other cases such as those of Maria Colwell, Jasmine Beckford, Lauren Wright and Ainlee Walker show how far behind public services are in terms of respecting and protecting children’s rights. Clearly, children’s issues in the broadest sense constitute a separate area of investigation, which can not be adequately addressed by this report and the Insight Project’s wider scope. Therefore, reference will only be made to the evidence that is strictly related to human rights breaches by public services staff. According to case law and surveys, the following HRA rights have been breached by public authorities while delivering their services to children: the right to life (Article 2), the right to be free from torture, inhumane or degrading treatment (Article 3), the right to respect for private and family life (Article 8), the non-discrimination clause (Article 14) and the right to an education (Article 2, Protocol 1). The most frequent violations were in relation to Article 3 and 8. Finally, the positive obligations sometimes imposed by the HRA were often ignored15. A 2001 study carried out by the Department of Health indicated that within four years, the number of children looked after because of potential or actual abuse or neglect rose by 11%. In 1999-2000, nearly one-third (31%) of looked-after children had been at risk or had actually been abused or neglected, compared with one-fifth in 1995-96 (Department of Health 2001). Particularly in relation to the Act’s positive obligations on public authorities to respect and protect children’s rights, there have been some breaches including failure to provide adequate resources (e.g. medical facilities to help treat and support children with severe mental health problems who might prove a danger to themselves and/or to others). Some examples from past surveys could be useful. The Community Care Magazine, while running their “Changing Minds” campaign to improve services for children and young people with mental health problems, noted a number of examples where children’s rights to Article 8 and 3 were found to be breached. For instance, a 12 year old boy who was taken into care was not able to meet his siblings for months and he was not aware of his social worker’s name. As a result, he felt extremely lonely, isolated and insecure. He was prevented from joining and communicating with his family, and was kept without information. Similarly, a 15 year old girl who was kept in 15

For example, in the cases of Victoria Climbie and Ainlee Walker, both children died despite being known to be at risk because the local authorities failed to ensure adequate protection for their Article 3 and 2 rights.

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a secure unit reported that staff had forcibly restrained and hit her and withheld food and on many occasions she was locked in her room for long periods. The results of the BIHR 2002 survey showed that public authorities are not responding adequately to their positive obligations under the HRA. In its conclusions, the report recommended immediate reform to services that matter the most to children warning that “as long as the Act fails to be used as a framework or model of good practice by those planning and devising services, individual violations will continue to take place, causing distress to the children concerned, and leading to potential compensation claims in the future” (BIHR 2002). According to the Who Cares Trust, 70% of children in public care are in foster care. The intention of the government was that all of them would have visits from social workers who would be responsible for reporting if actions were taken that were not in the child’s best interest including human rights breaches. These workers had to be different from the ones supporting the foster family to avoid influence and also allow the child the opportunity to come forward with difficulties. However, according to the charity, this is not currently the case as there is lack of social workers. This may amount to a breach of social services’ positive obligation to protect children’s rights. It can also constitute the basis for urther Article breachs. Figures from the free 24-hour helpline, Childline, showed that between April 2000 and March 2001, over 20,000 children called the helpline to talk about bullying. The same numbers were observed the following year (Childline 2002). Incidents occurred mostly in the education environment, but they were also experienced in other contexts where council and health authorities were responsible. In addition, almost 2000 children contact the line every year to report a serious and ongoing case of domestic violence. This covers sexual and physical abuse and also emotional abuse and controlling behaviour. In June 2002, Childline made a submission to the JCHR which was then examining the case of creating a human rights commission. The submission presented evidence where children were bullied, physically or sexually abused and neglected to demonstrate that that there are many instances where children's human rights are currently being disregarded or violated. Children form a section of the community which is unable directly to influence policy at any level, since they have no vote, and no economic power. Childline argued that it is therefore essential that children’s interests are protected by an authority independent of government, or of any vested interests. Critiques by international bodies are not encouraging either. For example, the United Nations Committee on the Rights of the Child, responsible for the implementation of the UN Convention on the Rights of the Child 1989, was very harsh in its 1995 report on the UK. Although the latest 2002 report was not as critical, a number of areas were highlighted as requiring urgent action. In relation to the public services examined in the Insight Project, the Committee said: “Over the years, the general principle contained in Article 12 – the right of children to have their views heard in all decisions affecting them – has taken on greater importance and has been recognised as vital in fully implementing and upholding children’s rights”. This is in line with the European Court of Human Rights’ jurisprudence on Article 6. Nonetheless, the Committee said: “participation initiatives are still on an ad hoc basis”. Therefore, the Committee recommended that the UK take steps to “promote, facilitate and monitor systematic and meaningful participation of all groups of children in society” (ChildRIGHT 2003). Similarly, the Committee criticised the UK for not responding to the decision of European Court of Human Rights, which found that the defence of reasonable chastisement of children violated Article 3. Parents are still allowed to use physical violence against their children without council and social authorities being

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able to intervene until the violence reaches serious levels. Finally, the Committee criticised the UK public authorities for not adequately addressing the issue of children in poverty, the higher incidence of mortality due to this cause, accidents in public institutions, poor housing, homelessness, malnutrition and suicide. However, over the past few years, and particularly after Lord Laming’s inquiry, some serious steps have been taken to ameliorate the delivery of services to children, bringing it more in line with the principles underlying the HRA. For example, to support local integration, the government has created a new Minister for Children, Young People and Families in the Department for Education and Skills. Consequently, the DfES is the Department principally responsible for children’s social services, family policy, teenage pregnancy, family law and the Children and Family Court Advisory and Support Service. In addition, the new statutory post of Director for Children’s Services has been created to oversee children’s social services and local authority education. Also, the Area Child Protection Committee has been replaced with Local Safeguarding Children Boards, while the institution of a new Children Commissioner has been proposed to act as an independent champion for children. The Convention on the Rights of the Child also had a considerable impact on the practices of public authorities. However, as the evidence has shown, the HRA has not yet made much of an impact on work and thinking in this sector apart from in those organisations that conduct legal casework on behalf of children. It is inevitable to a certain extent that children’s organisations will focus on the Convention designed specifically to protect the rights of their client group, and argue for its incorporation with domestic law. “But this focus has obscured the use that could be made of the HRA” (BIHR 2002). The second stage of the Human Rights Insight Project will attempt to measure the experiences of children and young people of 16 and over to provide the literature with the first data of its kind on what matters to them in terms of human rights and public services. The project will be particularly concerned with the rights of children who are especially vulnerable such as those in care and institutions, mentally ill or disabled. This information should prove useful in designing a programme that will make the principles of the HRA more user friendly. 4.4.2. Public services and disabled people: the evidence so far According to 2005 figures, there are about 11 million disabled adults in the UK – one in five of the total adult population – and 770,000 disabled children (PMSU 2005). The two most important steps taken before the implementation of the HRA in the area of disabled people’s rights are the Disability Discrimination Act 1995 and the Disability Rights Commission Act 1999. The latter set up a new equality body mainly responsible for legislation on disabled people. The Commission has been fully functional since April 2000 and although its role has been significant in shaping and defending disabled people’s rights, it cannot hear cases under the HRA. As a result, currently there is no single body that champions this vulnerable group’s human rights. However, this gap is hoped to be bridged once the new Equalities and Human Rights Commission is established. Until then, there needs to be a good understanding of the HRA’s effect on the enjoyment of public services by this vulnerable group. The Human Rights Insight Project will aim to fill this research gap that exists in this area by providing data on what matters to disabled people when

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receiving public services. This will help the Act respond better to its social contribution promises to protect vulnerable groups’ rights. In 2000, the Disability Rights Commission prepared a guide, which they circulated to public authorities in the hope of educating them about their human rights obligations to disabled people. The Commission said: “[The HRA] will potentially have a profound effect on the lives, and opportunities, of people, who are disabled. It could make a significant contribution to the goal set by the new Disability Rights Commission, of a society where all disabled people can participate fully as equal citizens” (DRC 2000). The need to monitor the current situation in relation to this group’s rights becomes even more apparent when looking at the recent case law and literature. According to these sources, the following HRA principles have been breached when delivering public services to disabled people: Right to life (Article 2), Right to be free from torture, inhuman or degrading treatment (Article 3), The Right to liberty and security of person (Article 5), the right to a fair trial (Article 6), the right to respect for private and family life (Article 8) and the non-discrimination clause (Article 14). The Articles most frequently breached are 2, 3 and 8. The HRA also imposes positive obligations on public authorities to respect its underlying principles when applied in the context of disabled people’s human rights. For example, breaches have occurred in cases that involved the provision of domiciliary care for disabled people. According to case law, reasonable provisions must be made to allow people who wish to stay in their homes to be able to do so; forcing them to live in residential accommodation might amount to a human rights violation. Some examples of past studies with disabled people are illustrative. Evidence collected through the BIHR survey showed that overall the HRA has not yet had any significant impact upon the everyday lives of disabled people. Many of the examples that were provided related to the lack of attention that was paid to people’s own individual needs. In many cases this related to a lack of protection for, or understanding of, disabled people’s Article 8 rights to respect for their private and family life, including the concept of bodily integrity. Problems were also identified in relation to the long delays that disabled people often endure when accessing social services. Their frailty puts them in a vulnerable situation, which has to be acknowledged and taken into account by public service providers. The British Council of Disabled People has pointed out that most disabled people in care homes cannot organise their own time but are forced to follow their carers’ plan. Moreover, there have been some serious problems in relation to transport provision. The organisation also said: “We know of cases [in residential settings] where people have been left in their own excrement, where they are put to bed at five o’clock in the evening, where they are not allowed to watch TV in the evenings…” (http://www.bcodp.org.uk/). The British Deaf Association has expressed concerns about the use of British Sign Language and possible violations of Article 14 of the ECHR. In particular, they have reported that deaf people may experience discrimination in relation to lack of provision for their first language to be used. The Council of Europe Charter for the protection of regional minority languages provides the ideal framework for the prevention of human rights breaches relating to the use of sign language. However, the Charter is not directly enforceable and has only an international dimension. This means that UK courts can use it for guidance and interpretation purposes but not as

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a primary source of law. Although there is scope for the HRA to be used in this regard, this has not yet happened. RADAR, the disability network, reported that “Do Not Resuscitate” (DNR) orders have often amounted to violation by the NHS of the rights to life. “We continue to hear of DNR notices on the hospital beds of disabled people where it may be perceived that they [non-disabled people] have longevity of life or a more valuable life than somebody with a chronic health condition for example. We also know of a disproportionate amount of disabled people on trolley waits within hospitals. We know of individual disabled people who have died as a result of being on a trolley wait”. The British Council of Disabled People agrees with RADAR’s view on this matter. As noted in the previous section of this report, the Prime Minister’s Strategy Unit has just released the report “Improving the Life Chances of Disabled People”. This sets out a long-term plan to improve disabled people’s quality of life and not just in relation to their human rights. It was prepared in collaboration with the Department of Health, the Department of Work and Pensions and the Department for Education and Skills and is expected to have significant impact on the way their services are delivered to disabled people. In particular, it aims to respond to the following problematic areas most commonly affecting disabled people: (1) attitudinal barriers (2) policy barriers (3) physical barriers and (4) empowerment issues. Despite the establishment of the Disability Rights Commission in 2000 and the introduction of the Disability Discrimination Act, there are still many gaps that need to be addressed in order to improve the satisfaction and experiences of disabled people with public services. Since 2000, there have been some significant improvements in relation to their rights. However, there is still a lack of adequate protective mechanisms for their human rights especially in the context of public services delivery. In the light of a possible shadow PSA programme or other initiatives, the Insight Project will help understand the problematic issues that are encountered by disabled people when accessing and receiving the examined public services and which could be addressed through the development of a stronger culture of human rights therein. Information will be gathered to explore whether human rights breaches are occurring, trying at the same time to understand how a better protection of the principles underlying the HRA may increase public satisfaction. 4.4.3. Public services and mentally ill people: the evidence so far Currently there are over seven million people in the UK with mental health problems. In 1999, the Department of Health reported that there were approximately 318 thousand people with mental health problems in residential care homes. The main legislation regulating areas affecting mentally ill people is the Mental Health Act 1983. On a number of occasions, the European Court of Human Rights found clauses of this Act to be incompatible with ECHR. For instance, in the case JT v UK ([1997] EHRLR 436), section 3 of the Act was not found to be in accordance with Article 8. This obliged people who are detained in mental health institutions to accept their closest relative as their guardian. However, this was problematic with cases where the closest relative was a source of human rights violations. More importantly, the Act has often been found to be in breach due to its clauses on sectioning and forcing individuals to accept treatment against their will. The truth is that in the area of mental illness, it has always been difficult to strike the right balance between public safety and the human rights of affected individuals. However, the European Court of Human Rights has now developed a detailed jurisprudence which

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sets out the exact criteria that need to be met by any public authority which intents to detain or treat mentally ill people against their will. Nevertheless, according to case law and the extant literature, the following rights have been breached by the examined public authorities while delivering services to mentally ill people: Right to life (Article 2), right to be free from torture, inhuman or degrading treatment (Article 3), right to liberty and security of person (Article 4), right to fair trial (Article 6), right to respect for private and family life and the nondiscrimination clause (Article 14). The JCHR, while collecting evidence for their 2005 report on the Mental Health Bill said: “The main focus of the case law, and of the evidence we received [in terms of respect for mentally ill people’s human rights] has been on Articles 3, 5, 8 and 14 of the Convention” (JCHR 2005). The Mental Health Act Commission, while giving evidence to the JCHR, said: “Aspects of the 1983 Act require urgent amendment. In particular, the 1983 Act’s provision regarding ‘Nearest Relatives’ have been deemed incompatible with ECHR Article 8, and it may be that the current Tribunal arrangements will not withstand challenges based upon the requirements of Article 5 of the ECHR. It would be possible to deal with such matters through an amendment Bill, if perhaps no less complicated than redrafting the law as a new Bill” (JCHR 2005). The areas that are most often affected when public authorities provide services to mentally ill users are: Restraint/seclusion of patients: Despite the detailed list of requirements that public authorities have to meet before restraining or secluding a mentally ill patient, bodies such as the Mental Health Act Commission, the JCHR and the National Association for Mental Health have found evidence of arbitrary confinement and seclusion. These bodies have all urged more thorough regulation of the provisions allowing these actions. While doing so, the right balance needs to be struck between community safety and patients’ rights. The Mental Health Act Commission said to the Council of Europe: “The management of dangerous or disruptive behaviour in hospitals continues to present many health professionals and managers with significant anxiety and challenge, but there is currently great uncertainty about the extent of the powers of staff to impose rules and enforce sanctions with regard to the behaviour of patients, particularly those detained under the Act for whom discharge is not an option” (Mental Health Act Commission, 2000). The fairness of treatment and seclusion procedures has also been questioned by the European Court of Human Rights. Currently, there is no provision for an appeal and therefore if a decision is taken to restrain or seclude a patient this is final and cannot be challenged. This has been criticised by the Mental Health Commission. Finally, there have been problems with time scale within which these procedures have been reviewed. Cases taken in the late 1990s to the European Court of Human Rights showed that mental health tribunals have often failed to decide within an acceptable timeframe on matters that affect the lives of this extremely vulnerable group. The 2005 report of the National Association for Mental Health underlined this problem: “We do not believe that the length of time for which many applicants currently wait for tribunal hearings meets the [Article 5(4)] criterion…” (MIND, 2005). Permanent infringement of procreation capacities: In the past, there have often been problematic cases where mentally ill patients have been sterilised. After legislative intervention, no court has jurisdiction to give or withhold consent to this type of operation. However, the High Court can give permission for sterilisations to take place on an individual basis.

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Communication and right to private life: Current practice allows hospital staff to listen to patients’ phone calls, carry out searches in their rooms and personal belongings and also intervene when more than two or three patients gather together at one time. The Mental Health Act Commission said: “[We] do not agree that powers of search or listening to patients’ phone calls should be solely determined by the house rules of the psychiatric establishment…The Commission recommends that there is a need for greater regulation of staff powers of searching as with other means of exercising control and discipline” (Mental Health Act Commission, 2000). Discrimination: The Expert Committee on the review of the Mental Health Act, while collecting its evidence on the Act reported that there are reasons to believe that mentally ill patients can be discriminated against “in relation to such areas as employment, travel, insurance, housing, education and the public representation of mental disorder” (Expert Committee, 1999). Recently, the national charity Citizens Advice Bureau published the report “Out of the Picture” which is based on evidence from over 350 local Citizens Advice Bureaux (CAB) and some of the 100 specialist CAB mental health projects around the country. It catalogues the social exclusion and lack of support that it claims blights the daily lives of the seven million people in the UK with mental health problems, preventing them from getting fair treatment. The charity called for major changes in the benefits system and in consumer protection, claiming that discrimination in these sectors is undermining people's ability to cope, often making their mental health problems worse. Ward environment: The Fellowship of Postgraduate Medicine has reported instances where wards in which mental health patients were compulsorily confined were inadequate to the point of amounting to a breach of Article 3. In addition, the European Court of Human Rights has found several public authorities to be in breach of Convention rights due to poor ward environment. For example, in the case of A v UK (1980), a Broadmoor patient was subjected to inhuman and degrading treatment during a five-week seclusion period in a poorly furnished, lit and ventilated and unsanitary room with inadequate clothing and opportunities for exercise. A few years later, the UK was again found in breach of the ECHR as a special hospital patient was subjected to an atmosphere of violence, overcrowding and a lack of sanitary facilities, of fresh air and of privacy. In September 1999, the government launched the National Service Framework for Mental Health (NSF), which set out how care to mentally ill people was to be planned, delivered and monitored over the following 20 years. The NSF includes seven standards to tackle five key areas: health promotion and stigma, primary care and access to specialist services, the needs of those with severe and enduring mental illness, carers' needs and suicide reduction. The standards are not solely related to human rights although some of the Framework’s key targets fall within the human rights sphere e.g. closing down mixed-sex wards in 95% of health authorities and providing an extra 300 secure beds by April 2002. Five years letter, Mind, the mental health charity, carried out a survey with 414 mental health service users to investigate the impact of the NSF. Overall, their study found that the NHS and social services had made poor progress in implementing six out of the seven standards laid down by the NSF for mental health (Mind 2004). Despite high profile cases that showed how poor hospital care currently is, Mind’s survey showed that this has little effect on policy, as this area remains substandard with many patients placed in mixed sex wards or subjected to harassment and even assault.

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Negative figures were also reported in April 2005 in a study carried out by Rethink, the mental health charity. The charity also produced a toolkit that gives practical advice to health professionals and carers to help improve the life of those with severe mental illness. This makes reference to standards that fall within the human rights sphere. Overall, there have been improvements in the protection and respect of this vulnerable group’s human rights. Furthermore, the Mental Health Act, which has so many times been criticised for conflicting with a number of principles underlying the HRA, is in the process of being amended. The Mental Health Bill is already being discussed in Parliament, and has become the basis for a number of reports including one from the JCHR. While the Bill is being processed both the National Association for Mental Health and the JCHR have pressed the government for more public consultation. Therefore, the findings of the Insight Project will prove particularly helpful in this regard. They will assist understanding of how this vulnerable group’s needs can be met while delivering to them services that are crucial in their everyday lives. 4.4.4. Public services and older people: the evidence so far According to the 2001 census, 16% of the UK population are aged 65 or over. There are about 336,000 people aged 90 and over. More than half of women aged 75 and over live alone - 52.5% of 75-84 year olds and 54.5% of 85 year olds and over.

Figure 4: UK population by age, Census 2001

According to case law and recent studies, the following HRA principles have been breached by public authorities while delivering public services to older people: right to life (Article 2), right to be free from torture, inhuman or degrading treatment (Article 3), right to a fair trial (Article 6), right to respect for private and family life (Article 8) and the non-discrimination clause (Article 14). Problems have also been experienced in relation to the positive duty that the Act imposes on public authorities when providing services to older people. This has been experienced, for example, when older people have been forced into residential accommodation against their will. Furthermore, individual care providers who do not

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ensure that they have effective staff training for treatment of older residents may fail to meet the threshold for degrading or inhuman treatment16. Some examples of past studies may prove helpful. In 2000, Action on Elder Abuse released a detailed report that was based on an analysis of calls to Elder Abuse Response, which is the organisation’s national helpline. The organisation reported that between 1997-1999 the helpline received 1,453 confidential calls from older people reporting abuse. They distinguished five different types of abuse: (i) Physical: e.g. hitting, slapping, burning, pushing, restraining, or giving too much medication or the wrong medication. (ii) Psychological: e.g. shouting, swearing, frightening, blaming, ignoring or humiliating. (iii) Financial: e.g. illegal or unauthorised use of a person’s property, money, pension book or other valuables. (iv) Sexual. (v) Neglect: e.g. where a person is deprived of food, heat, clothing, comfort or essential medication. A quarter of these calls (i.e. 355) were made by people in hospitals, nursing and residential homes. According to the Office of National Statistics, only 4.79% of people in the UK over retirement age (60/67) live in a care setting (Office of National Statistics 1999), and yet 25% of the calls were about people who were in residential care or nursing homes or hospitals. The report concluded: “This could be interpreted to suggest that abuse is more prevalent in care settings than in people’s own homes” (Action on Elder Abuse 2000). Institution Sheltered housing Hospital Residential *Home Nursing Home Own home Total

35 61 73 146 169 969 1,453

2.4% 4.2% 5.0% 10.1% 11.6% 66.7% 100.0%

2.4% 6.6% 11.6% 21.7% 33.3% 100.0%

Table 4: Incidents of abuse of older people alleged in calls to Elder Abuse Response

Two fifths of the calls reported psychological abuse, one fifth each physical and financial abuse. One call in ten was about neglect and nearly 2% of calls were about sexual abuse. Calls frequently reported more than one type of abuse going on at once. According to the same report, abuse appears to increase with age. In care settings, the abuse was most likely to be physical or neglect. Calls included reports of people dying shortly after hospital admission from neglected pressure sores, fractures being identified several days after a fall as well as individuals being restrained both physically and with drugs. Regarding sexual abuse, the survey showed that: “Although there were only a few reported incidents in care homes, these all gave cause for concern. Sexual abuse is usually defined as ranging from any inappropriate contact of sexual nature through to criminal actions. The calls AEA received focused

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The threshold which must be reached for treatment to be considered degrading under 3 has been defined by the European Court of Human Rights in the notorious case of Ireland v. UK: “Treatment or punishment that arouses in the victim a feeling of fear, anguish and inferiority capable of humiliating and debasing the victim and possibly breaking his or her physical or moral resistance”.

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on the latter end of the spectrum, referred to multiple victims and to multiple abusers, and identified both men and women as perpetrators” (Action on Elder Abuse 2000).

Sexual Financial Neglect Psychological Physical

Nurses 2 4 28 31 47 112

Care workers 10 49 107 110 117 393

Total 12 53 135 141 164 505

Table 5: Types of abuses of older people by nurses and care workers alleged in calls to Elder Abuse Response

The biggest number of calls reported care workers as the abuser. Nurses were the second largest group. In both cases, about half the perpetrators reported were men. Details given in calls taken by the helpline and other comments received by AEA through other routes, would appear to indicate that there may be two groups of serial abusers working within care settings. The first group comprises workers who seek employment with any vulnerable adult in order to perpetrate abuse – and who may also have worked with children. The second group is workers who seek employment only with older people (Action on Elder Abuse, 2000). Overall, the findings of this report supported the negative findings of a 1997 survey also carried out by Action on Elder Abuse. The table below details the occupation of the perpetrators of abuse and where the incidents took place. Own home Care settings including sheltered (hospitals, nursing housing & residential homes) Police officer 0.8% 0.4% Lawyer 1.8% 0.6% Social worker 2.7% 2.0% Housing worker 2.7% 2.2% Doctor (hospital/GP) 2.4% 6.2% Other 7.5% 7.2% Nurse 1.0% 13.9% Care worker 10.1% 38.5% 29.0% 71.0%

Total Cumulative % %

1.2% 2.4% 4.7% 4.9% 8.6% 14.7% 14.9% 48.6% 100.0 %

1.2% 3.6% 8.3% 13.2% 21.8% 36.5% 51.4% 100.0%

Table 6: Occupation of perpetrator and place where alleged abuse of older people occurred

In 2001, Senior Line, another free helpline for older people, produced a similar report which showed clear breaches of what could be understood as positive obligations to protect people’s right to life, their right to be free from inhuman or degrading treatment or their right to privacy (Help the Aged 2001). The helpline also provided interesting data on the type of problems that older people encounter when trying to access the Social Fund. These were not related to the outcome/decision of their applications, but with the process they had to go through (e.g. delays, not being given adequate information, being provided with the wrong information etc). These problems may not immediately be considered human rights violations, but in combination with the fact that they involve a vulnerable group with special needs, these could amount to a breach of positive obligations under the HRA.

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More direct violations of older people’s human rights can be found in studies such as the one carried out by the BIHR: “I was dealing with an issue just last week, of a man in his 80s, in a nursing home, who needs assistance to get dressed, and uses a catheter. That man was made to sit with absolutely no clothes on in a double room with 5 members of staff, a mixture of male and female staff, for over 25 minutes whilst they took turns to do the bits that they needed to do, with the door wide open leading into the corridor. The main was sitting there with nobody speaking to him. One was coming in to wash him, another one was coming in to change his catheter bag, another one was coming in to change his medication, and he was just left sitting with absolutely no clothes on whatsoever in the middle of this congregation taking place around him, with people walking past the door. In the end the man messed himself, was then rolled over onto his side, whilst they proceeded to put a towel underneath him, and then wash him, on the bed, still with no attempt made to protect his dignity” (BIHR 2002). Overall, the BIHR study did not find any significant impact of the HRA on older people’s lives. This finding was similar to that of a 1999 survey that Age Concern had carried out with 1,500 older people. 5% of them believed that at some time they had been denied treatment clearly because of their age (Age Concern 1999). Equally significant were the results of a study that was carried out in 2003 by the Signpost project, which was funded by the Joseph Rowntree Foundation. The methodology was a combination of literature review and qualitative analysis with focus groups. Although the central focus of the research was not human rights some of the conclusions and recommendations are relevant to the Insight Project. For example, the report concluded that there are different levels of discrimination taking place particularly in relation to the use of language in valuing or denigrating older people and the negative impact of stereotypical images of and attitudes about older people (Margiotta et al 2003). The review of older people’s experiences with the examined public services would be incomplete if the 2002 study of Help the Aged was not mentioned. Their study “Age Discrimination in Public Policy: A Review of Evidence” employed qualitative methodologies, which revealed the existence of direct and indirect discrimination against older people in the delivery of six services: health, social care, social security, transport, employment and education. With particular reference to health services, the report found the following breaches of older people’s human rights: •

•

•

•

Dignity and respect: The survey found that unpleasant or condescending ageist language is common in everyday speech (e.g. little old lady), while health staff often use demeaning jargon (e.g. bed blocker). Explicit age discrimination in the provision of health care: this was experienced at two levels. First in terms of limited access e.g. breast and cervical cancer screening and second in terms of quality e.g. performance indicators and targets Hidden age discrimination in the provision of health care: this was experienced at two levels. First in terms of limited access e.g. age-related variation in ‘Do not Resuscitate Orders’ and second in terms of quality e.g. neglect of older people’s medical wards Indirect age discrimination in the provision of health care: this was experienced at two levels. First in terms of access e.g. means-testing for nursing care arranged via local authorities and second in terms of quality e.g. mixed sex wards.

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In terms of black and ethnic minority older people, the survey found additional breaches as there have been instances where frontline staff were either lacking in understanding of or ignoring the cultural needs and peculiarities of these groups or made assumptions about their autonomy, family and community relationships. Furthermore, these groups are most likely to be given poor quality or no information. The study also revealed problems of communication and lack of respect for the capabilities of people who can not speak English. This finding confirmed a 1999 study by the Department of Health which showed that older Asians are unaware of many community health and social care services (Department of Health 1999). Of those older Asian people who have used services, most perceived them to be inaccessible particularly because of communication difficulties. Other problems that were recorded included not meeting the individual needs of this group, issues of privacy, religion and diet (Department of Health 1999). A 2000 survey carried out with Emergency (A&E) services that were provided to 12,000 patients found that older patients were much less likely than younger counterparts with similar injuries to receive appropriate treatment, for example intensive care or referral for specialist investigation (Grant et al 2000). These findings were backed up by a 2001 study conducted by Help the Aged, which also showed that patients over 60 waited on average almost five hours in A&E before treatment and patients aged over 80 spent on average four and half hours waiting. This contrasted with average waits of less than three hours experienced by patients aged under 40 (Help the Aged 2001). In two surveys carried out in 1998 and 2000, the Health Advisory Service found powerful evidence of negative attitudes in acute hospital care towards older people and dangerous inadequacies in the care provided on some general acute wards (HAS 2000, 1998). In some instances, hospitals were failing to meet even basic standards of nutrition or personal hygiene for older patients, causing great distress to both patients and relatives. A year later, the National Standing Nursing and Midwifery Advisory Committee produced a report, which showed that little had changed at ward level in many hospitals. Their report painted a devastating picture of the poor standards of care experienced by very old patients and their relatives in some NHS hospitals. Staff attitudes were found in many cases to be very negative and demeaning (National Standing Nursing and Midwifery Advisory Committee 2001). Over the last few years, four steps have been taken to improve public services to older people. The first is the Better Government for Older People (BGOP) programme, which was launched in 1998. Its aim was to improve service for older people by better meeting their needs, listening to their views, providing clearer and more accessible information and encouraging and recognising their contribution. The programme is now complete and an evaluation has shown that progress has been made by local partnerships in pursuing a strategic approach to an ageing population (Hayden and Boaz, 2000). The second commitment to older people has been within Better Care, Higher Standards. This was a programme announced in December 1999 by the Secretary of State, setting out the values on which people can expect their local housing, health and social services to be based. The impact of this programme has not been measured yet. The third significant governmental step is the 2000 National Service Framework for Older People (NSF), which has already been mentioned by this report. In November 2004, the National Director for Older People’s Services submitted a report to the Secretary of State for Health on progress in older people’s health and care services. This mainly tried to draw on the changes and improvements that were due to the NSF. Overall, the report was positive, showing that since 2000 older people’s health and life expectancy are improving and so are their services. The report said: “Services for major conditions associated with

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old age, stroke, falls and continence have improved while attitudes and culture are changing with less age discrimination and more power passing to service users and their families” (NDOPS 2004). The final step was the 2002 establishment of the Patient Advice and Liaison Services (PALS), which aims to improve services in hospitals for all age groups by providing information about health services and the complaints procedure, the resolution of problems where possible and referrals to specialist and independent advocacy services where appropriate. All these are important developments which have to be acknowledged. Although they are not primarily targeted towards a better human rights culture, they can improve the quality of public services sometimes touching human rights issues. A more direct outcome can be achieved if pursued within the context of human rights and the standards underlying the HRA may prove to be particularly helpful in this regard. The Insight Project will help develop this understanding, and test whether a shadow PSA target or other initiatives that is relevant to this vulnerable group’s rights and experiences with public services might be feasible. 4.4.5. Public services and black, ethnic and other minority groups: the evidence so far The latest 2001 Census showed that the percentage of people from minority ethnic groups has grown from 6% to almost 9% of the total population since 1991. The biggest groups are Indian (1.8%), Pakistani (1.3%) and Black Caribbean (1%). Table 7 provides a breakdown of the main ethnic minorities as these were recorded in 2001. Group

% of UK population

White 92.1% Indian 1.8% Bangladeshi 0.5% Pakistani 1.3% Other Asian 0.4% Black 1% Caribbean Black African 0.8% Other Black 0.2% Chinese 0.4% Mixed 1.2%

Other details and notes Indians make up 25.7% of Leicester’s population The London borough of Tower Hamlets has the highest proportion of Bangladeshis in England and Wales, with 33.4% Over half of Pakistanis live in the West Midlands, Yorkshire and the North West. Thais, Sri Lankan, Malaysians etc Black Caribbean form 10% of the population of the London boroughs of Lewisham, Lambeth, Brent and Hackney. About 10% of Southwark, Newham, Lambeth and Hackney are Black African. About 2% of people describe themselves as Other Black in Hackney, Lambeth and Lewisham. Chinese people form just over 2% of the population in Cambridge, Westminster, Barnet and in the City of London. The largest proportions of people of mixed origin are in London, with the exception of Nottingham, where 2% of people are Mixed White and Black Caribbean. This group has grown since the 1991 census

other 0.4% In England and Wales only The area with the highest proportion is the London borough of Brent (6.9 per White Irish 1.2% cent of the population). The area with the highest proportion of this very mixed group (everyone white White Other 4.5% who did not describe themselves as British or Irish) is Kensington and Chelsea (25.3%). Table 7: Black and Ethnic Minority Groups in the UK, Census 2001

Evidence shows that minority groups may be more vulnerable in terms of their human rights while encountering different public services. This is mainly because

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they have a number of special characteristics, which if public authorities are not ready to acknowledge, embrace, and respect might give rise to a violation of a HRA principle. For example, some ethnic minorities have different religious and faith beliefs, which if not respected may amount to a breach of Article 8. According to a 2003 study by the Office of the Deputy Prime Minister, demographic difference between some population groups may have implications for managing non-discrimination in service delivery. In terms of geographical location, ethnic minorities, gays and lesbians and some faith communities are more likely to be settled in large urban areas than elsewhere (Table 8 provides an account of the main religions in London). A consequence of this is that while some large, urban authorities may have developed appropriate services for these groups, other authorities may believe that it is not necessary for them to do so as numbers are small and or/unknown (ODPM 2003). The Human Rights Insight Project will bear this in mind when including vulnerable populations from minority groups. If the findings of the second qualitative stage indicates the need for further original research through a quantitative study, then the sample for this research will need to be carefully balanced to reflect as much as possible the realities surrounding these minority groups. For example, it is likely that there are fewer human rights breaches related to sexuality, faith or ethnicity in non-urban areas due to the smaller numbers of minority groups. According to a study by Lakey, within a given local authority area different ethnic minorities may or may not be present (Lakey et al 2001: 186). They may also be differentially spatially placed within the authority’s geographical area. The sample population of any quantitative study will need to correspond to this finding. It is important to note, however, that real settlement patters as measured by the census may not match local beliefs about settlement patterns. A study by Back and Solomos called this ‘an imagined racial geography of an area (Back and Solomos). They also showed that some ethnic minority populations may also be more visible than others; this may be reflected in local authority policy and service management and delivery. A study by Berthoud et al reinforces the aforementioned findings. It showed that the importance of this differential settlement and different population structure is that it has been increasingly recognised that different ethnic minority groups experience different disadvantages and have different social and cultural needs (Berthoud et al 2001: 8) Religion

%

Christian Muslim Hindu Sikh Jewish Buddhist No religion

66% 3% 1.1% 0.7% 0.5% 0.3% 7.7%

Notes about London 58% (76% in Havering) 8.5% in London overall, 36% in Tower Hamlets, 24% in Newham 4.1% (19.6% in Harrow) 8% of Hounslow and Ealing 2.1% (14.8% in Barnet) 0.8% 16%

Table 8: Main Religions in London, Census 2001

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Spoken

Written Regional, National Language/s

Religious Language

Bengali - often called Bangla; Sylheti dialect

Bengali

Classical Arabic

Panjabi, many understand Hindi too Panjabi and Urdu (similar to spoken Hindi)

Panjabi for preference, Hindi for some Urdu( uses different script from Hindi)

Group Name

Geographical Roots

Bangladeshis Bengalis

Muslim Sylhet region of (almost Bangladesh, itself always, small part of Bengal % Hindu)

Indians (Panjabis)

Indian state of Panjab

Majority Sikh, some Hindus

Pakistanis

Pakistani state of Panjab

Muslim

Indians (Gujeratis)

Indian State of Gujerat

Mostly Hindu, Gujerati, many some Muslims speak Hindi too

Hong Kong

Christian Confucian Buddhist

Chinese

African Caribbeans

Welsh

Religion

British Caribbean Islands Christian, eg Jamaica, Rastafarian Grenada, Trinidad If any religion likely to be nonWales conformist Christian, e.g. Methodist

Panjabi Sanskrit for Hindus Classical Arabic

Gujerati and Hindi

Sanskrit Classical Arabic for Muslims

Cantonese Chinese, sometimes Hakka Chinese

Chinese (shares same characters as Mandarin Chinese)

No specific language

English Creole of Patois (Patwa), or more likely a British form of it

Usually English

Rastas might use Patwa

English and /or Welsh

Welsh and English

No specific language

Table 9: Main British language and religious groups in the UK, Census 2001

The district with the highest proportion of Sikhs is Slough. One person in seven of the population of Leicester is Hindu. One person in nine of the population of Hertsmere in Hertfordshire, is Jewish. Over 1% of the population of Cambridge is Buddhist. Based on case law and recent studies the following HRA principles have been breached by public authorities while delivering public services to older people: right to life (Article 2), right to respect for private and family life (Article 8) and the nondiscrimination clause (Article 14). The two most thorough parliamentary inquiries on discrimination events with minority groups in the UK are the Macpherson and Scarman reports. Although these focused on racist behaviour by the police, their conclusions and findings referred to a discrimination culture that appears to exist throughout public services. In particular, Sir William Macpherson who carried out the inquiry into Stephen Lawrence’s death17 concluded that there exists “institutional racism” across public services with particular reference to the police. Institutional racism was defined as: “The collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, 17

Stephen Lawrence, an 18 year old black student was stabbed to death in a racist attack while waiting for a bus in South London.

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ignorance, thoughtlessness and racist stereotyping which disadvantages ethnic minority people. [Racism] persists because of the failure of the organisation openly and adequately to recognise and address its existence and causes by policy, example and leadership. Without recognition and action to eliminate such racism it can prevail as part of the ethos or culture of the organisation. It is a corrosive disease” (Macpherson 1999). In a 1999 study by the Department of Health, it was revealed that institutional racism exists especially in terms of discrimination against: African-Caribbean, Asian, black African, Chinese and Mixed Heritage populations (Department of Health 1999). The same was observed for social services. In the report on black, Asian and ethnic minority older people, “They Look After Their Own, Don't They?”, the Social Services Inspectorate produced a key message suggesting that: “In order to overcome institutional racism, Social Services Departments should re-think the approach of providing a common service for everyone and treating both black and white older people the same” (Department of Health 1998). In 2002, Age Concern carried out a study with older people from minority groups (Age Concern 2002). This provided evidence to suggest that black and minority ethnic elder’s experience more discrimination in terms of both age and race than other groups within the population in health, community and social care services, income and housing. The report showed that although black and minority ethnic populations are the highest users of primary care services, there is still not adequate provision that will respect their individuality. For example, it was found that people from these groups received services that were largely dependent upon their command of the English language. The need to employ more nurses from minority groups was highlighted, as this was thought to provide the means for overcoming cultural barriers. The same study provided evidence which suggested that people from minority groups may receive bad public services because of: (1) language barriers; (2) insufficient knowledge of availability and rights to social and public services; (3) low expectations of their life in the UK; (4) racism – overt and often inadvertent – at individual and institutional levels, including professional assumptions that their family will provide care and a colour-blind approach to service provision and assessment. Most white people mentioned groups who stood out by their colour as likely to experience prejudice – though ethnic minorities themselves included Jews. All groups agreed that prejudice against whites was very low. The reasons people gave for prejudice in order of importance were: • the idea that minorities were 'taking jobs'; • various things to do with cultural differences; • believing that minorities were 'getting good housing' and on the dole. However, this is inaccurate as an Age Concern study has shown that many Asian older people, particularly members of the Pakistani and Bangladeshi communities, live in the worst housing in terms of size of home, lack of adaptations, poor design, poor insulation, disrepair, inconvenient location, poor access, overcrowding, problems with neighbours, isolation from family, religious and cultural institutions, and poor health and safety (Age Concern 2001). For example, in a 2001 survey carried out by Age Concern, 78% of Bangladeshi householders said that they lived in households with five or more people, while none contained five or more bedrooms. Over half (55%) of Pakistani respondents said that

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they lived in households with five or more people, but only 3% of households contained five or more bedrooms. In a more recent report prepared in 2004 by the “1990 Trust”, it was claimed that black and minority ethnic communities are susceptible to multiple human rights violations by public authorities. The report was submitted to the Joint Committee of Human Rights and was based on a 2001 survey that the Trust carried out with over 200 Black organisations (including African, Asian and Caribbean). In addition, the 1990 Trust’s shadow report to the UN Committee on the Elimination of Racial Discrimination in August 2003 contained evidence that structural inequalities in housing, education, employment, criminal justice and health still abound (The 1990 Trust 2004). Over the last decade there have been some serious efforts to increase the protection of minority groups’ human rights and also improve their experiences with public services. Some examples include: • Department of Health (1998) They look after their own don’t they?: This is national overview report on the accessibility of social services departments’ to minority ethnic people. • Department of Health (1999) Respect: Prepared by the Racial Equality Unit to provide guidance for social care and other staff working with black and minority ethnic communities on how they can better approach older minority ethnic groups’ culture and experiences to help them review and improve services. • Department of Health (1999) Developing Services for Older People: This is a project that concentrated on four local authorities’ involvement of representatives from local communities to devise an action plan for improving services for back older people. This was hoped to provide the groundwork for an audit process that the DofH will carry out to ensure that all policies are not discriminatory. • EC Article 13 Race Directive 2000: This Directive is obligatory EU law and implements the principle of equal treatment between persons irrespective of racial or ethnic origin. • Race Relations Amendment Act 2000: Extended the Race Relations Act 1976 to the functions of all public authorities to promote race and monitor race equality. It also places a general duty on public authorities to eliminate unlawful discrimination and to promote equality of opportunity and good race relations. • Home Office (2000) Race Equality in Public Services: This paper focuses on education, health, law and order, housing and local government services, and aims to promote race equality in their contact with consumers. It sets out the need to monitor outcomes to ensure progress by the publication of an annual report (Race Equality in Public Services) and a set of race equality performance indicators across the public sector. • Department of Transport, Local Government and the Regions (2001) Addressing the housing needs of black and minority ethnic people: This provides guidance on how to eliminate racial discrimination and promote equality of opportunity and good relations between persons of different racial groups. All these are again developments that have to be considered and although their direct focus is not human rights they help improve this field particularly in the context of public service delivery. To meet an objective that is purely human rights related there have to be tools that directly address this type of problems. These can be found in the principles underlying the HRA. The Insight Human Rights Project will include users from minority groups to listen to their individual needs and experiences so that it can better inform a possible shadow PSA programme that will aim to improve the services delivered to them by public authorities.

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4.4.6. Other quantitative data relating to customer satisfaction with the examined public services A series of Best Value Performance Indicator (BVPIs) surveys carried out across council services rendered several broad conclusions which could provide some useful guidance for the qualitative and possible quantitative analysis of the Human Rights Insight Project (ODPM 2003). For example, the qualitative and more importantly the quantitative part of the research could use this information to identify a representative sample that will reflect the British society as much as possible, particularly the vulnerable groups that the HRA aims to protect.

Table 10 reveals that, in general terms, satisfaction with public services increases with age. Therefore, people over 65 are the most satisfied by age. However, those aged under 18 record higher rates of satisfaction than the next two age groups (1824 and 25-34). This may be because of smaller numbers in this age group, or it may reflect better services for those aged under 18. Individual features characterising each of these groups may also have an impact on their satisfaction levels. Satisfaction with Overall Service Provided by Local Authority (BVPI3) by age, percentages Age Group Satisfied Neither Dissatisfied % of Total under 18 60.3 25.8 13.9 1.3 18-24 58.1 28.0 13.9 6.6 25-34 59.1 28.0 12.9 13.7 35-44 61.9 25.7 12.5 17.5 45-54 62.9 23.9 13.1 18.2 55-64 67.3 21.0 11.6 16.5 65-74 72.1 18.3 9.7 15.1 75+ 75.7 16.9 7.4 9.9 not stated 57.4 25.5 17.2 1.1 Total 65.2 23.1 11.8 100 Table 10: Differentiation in customer satisfaction: Age

Table 11shows that registered disabled people are more satisfied than disabled people who are not registered. Satisfaction with Overall Service Provided by Local Authority (BVPI3) by gender, percentages Disability Satisfied Neither Dissatisfied % of Total Registered 66.2 20.9 12.9 24.1 disabled Not registered 64.5 23.9 11.5 74.5 Don’t know 61.9 21.6 16.5 0.1 Not stated 66.4 20.9 12.6 1.2 Total 65.0 23.1 11.9 100 Table 11: Differentiation in customer satisfaction: Disability

Table 12 provides a breakdown based on gender, showing that women are more likely to be satisfied with the services provided by their local authority than men. British and Irish women are the most satisfied across the ethnic groups. However, overall, women from all ethnic groups tend to express more satisfaction than do their male peers.

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Satisfaction with Overall Service Provided by Local Authority (BVPI3) by gender, percentages Gender Satisfied Neither Dissatisfied % of Total Men 62.8 23.9 13.2 45.5 Women 66.8 22.4 10.7 54.0 Not stated 64.1 22.4 13.4 0.5 Total 65.0 23.1 11.9 100 Table 12: Differentiation in customer satisfaction: Gender

Table 13 backs up this report’s conclusions, showing that respondents from ethnic minority groups are, generally, more likely than white British people to say they are dissatisfied with the overall service offered by their local authority. The exceptions to this are white Irish and Chinese respondents. The justification given for these exceptions is that Chinese people record relatively low levels of satisfaction and dissatisfaction. White Irish respondents express nearly the same level of satisfaction as do white British respondents; however, higher levels of dissatisfaction than white British people are recorded for white Irish people. Satisfaction with Overall Service Provided by Local Authority (BVPI3) by ethnic group, percentages ETHNIC GROUP Satisfied Neither Dissatisfied % of Total White 65.4 23.0 11.6 95.8 British 65.6 23.0 11.5 93.6 Irish 65.1 20.2 14.6 0.9 Other white 54.1 28.2 17.7 1.4 Mixed 59.4 26.3 14.3 0.4 White & Caribbean 59.1 26.5 14.4 0.1 White & African 60.8 21.9 17.3 0.0 White & Asian 62.7 25.1 12.2 0.1 Other mixed 54.5 30.1 15.4 0.1 Asian 57.0 25.2 17.8 1.6 Indian 55.2 27.9 16.9 0.7 Pakistani 56.7 21.9 21.4 0.4 Bangladeshi 58.0 21.6 20.4 0.1 Other Asian 61.0 24.4 14.6 0.3 Black 55.8 23.8 20.4 0.7 Caribbean 53.8 24.8 21.4 0.4 African 61.4 20.6 18.0 0.2 Other Black 48.4 28.9 22.7 0.1 Chinese 53.6 35.5 10.9 0.2 Other ethnic background 58.6 25.7 15.7 0.2 Not stated 58.0 23.4 18.6 1.2 Total 65.0 23.1 11.8 100 Table 13: Differentiation in customer satisfaction: Ethnicity

These findings were confirmed by a 2002 Audit Commission study which combined ethnic minority groups to create a black/white dichotomous comparison, finding that on a range of measures the black group had higher levels of dissatisfaction than did the white group. In the same study it was noted than at ethnic group level, there was a complex set of different findings (Audit Commission 2002). Finally, differences also appear to exist in terms of the population’s employment status. For example, table 14 shows that respondents who are retired are the most satisfied by occupation at time of survey. This, of course, may in part reflect the more

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general trend of increasing satisfaction with increasing age. Vulnerable populations such as the respondents who describe themselves as permanently sick/disabled expressed the most dissatisfaction.

Satisfaction with Overall Service Provided by Local Authority (BVPI3) by occupation at time of survey, percentages Occupation Satisfied Neither Dissatisfied % of Total Full-time employment 60.3 26.6 13.1 35.0 Part-time employment 66.4 23.1 10.5 11.4 Self employed 60.0 26.2 13.8 7.7 Government scheme 62.1 23.8 14.1 0.5 Full-time education 59.9 27.9 12.2 2.4 Unemployed 63.6 22.2 14.1 2.4 Permanently sick/disabled 64.7 20.0 15.4 4.7 Retired 72.0 18.6 9.5 23.4 Working in the home 69.6 20.5 9.9 10.4 Other 65.7 21.8 12.5 1.2 Not stated 67.9 19.6 12.7 0.8 Total 67.6 19.7 12.7 100 Table 14: Differentiation in customer satisfaction: Employment status

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CONCLUSIONS AND NEXT STEPS v During the Queen’s Speech of May 17th 2005, 45 new Bills were announced all sharing one common goal: the creation of a culture of respect among members of British society. This ambitious goal can be achieved only when “Parents, local communities, local people…join with law makers and law enforcers…” (Blair 2005). The role of the DCA in reaching this target is crucial. The programme on human rights delivery and performance of the Constitution and Consumer Strategy Directorates’ gains particular significance. This report has provided evidence to prepare the ground for the second research stage of the Human Rights Insight Project, which will be carried out through fieldwork with consumers of public services. The conclusions and recommendations presented in this section are based on the Insight Project’s desk research and aim to inform both the Human Rights Insight Project and the Human Rights Division’s project on human rights delivery and performance v When the HRA was first introduced to Parliament, it was hoped that apart from incorporating the rights enshrined in the ECHR, it would lay the foundations of a culture of respect for human rights across public services. Seven years after the passing of the Act and five years after its implementation, the HRA is used mostly within a legal context and it remains on lawyers’ desks. To create the ‘human rights culture’ which Ministers, academics and NGOs have so often referred to, strategic steps will need to be taken. These could treat the principles underlying the HRA as factors that can improve the delivery of public services. A programme that will be based on human rights principles could also use them as agents of a procedure that could increase consumer satisfaction with public services. To achieve this, the programme will need to encourage human rights friendly behaviour that does not stem from fear of litigation but from the desire to develop a more tolerant, respectful and just society with improved public services. v According to the evidence presented in this report, there appears to exist a lack of awareness among the public both in terms of the HRA and its underlying principles. This is an interesting finding as this lack of awareness may affect the setting and reaching of any potential shadow PSA targets or other policy initiatives that will aim to further implement and promote a human rights culture. Moreover, the development of a culture of respect seems almost impossible without the appreciation and acknowledgement of the role of the principles underlying the HRA. It is unfortunate that the way this Act was initially introduced and campaigned for did not provide the public with adequate information about its main features and use. In addition, misleading media coverage and inaccurate campaigns run by some political parties have spawned misinformation and hostility in relation to the Act. This negative impact sometimes extends to cover human rights in general, as members of the public most often tend to associate them with either extreme cases of torture, or ‘over-the-top’ political correctness and high profile cases with celebrities and offenders or travellers seeking compensation for trivial reasons. Human rights have often been referred to as factors that encourage a ‘compensation culture’ that is motivated by moneymaking reasons. It is very uncommon for consumers of public services to treat either the HRA or its underlying principles as defence mechanisms, which they may use in their everyday lives. Even worse, it is highly unlikely that these principles are used to encourage a two way process that will lead to a human rights friendly behaviour that would be triggered automatically once a service provider and a service consumer meet. If human rights are not seen to be a ‘good thing’ there is no incentive to encourage greater understanding and use by either

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public service providers or users. Therefore, it is recommended that the Human Rights Insight Project looks into the issue of human rights awareness by carrying out qualitative research with members of the public. While the government is in the process of setting up the Commission on Equality and Human Rights, some preparatory work needs to be carried out to prepare the ground for the Commission’s awareness campaigns. A baseline will need to be drawn. While doing so, it is important that the views of consumers are heard directly and not through service providers as proxies. This research can be achieved only through a qualitative methodology carried out with interviews, focus groups etc among users of public services. Special care will need to be taken to include the groups that this report has identified to be the most vulnerable. This will be in accordance with one of the primary objectives of the Human Rights Act, which was introduced in the hope of improving the lives of vulnerable people who are at risk and cant speak for themselves. The qualitative findings might then suggest that further quantitative research might need to be carried out to support the findings. v The report has also produced evidence which suggests that there is still a long way to go in terms of respecting people’s human rights when providing them with public services. Data collected in recent studies carried out by academics, research centres, NGOs, charities and governmental bodies reveal numerous human rights breaches by all examined services i.e. social/council and health services. Consumers need to be given the opportunity to say what matters to them and report any abuses they may have experienced. More importantly, there needs to be a clear idea of where the examined services are in terms of their human rights obligations under the Act, five years after its implementation. Such baseline data is missing and this gap needs to be addressed. This, however, cannot be achieved with qualitative analysis. Qualitative methodologies will prove to be useful in discovering the language that consumers use when referring to human rights principles and breaches. It can also help unravel the key themes and main issues that matter to the end user and could form the basis for a follow up analysis. But baseline numerical data will need to be carried out using quantitative methodologies through a survey of a representative sample of the UK population. In conclusion, it is recommended that the Human Rights Insight Project carries out qualitative analysis followed by quantitative research to collect baseline data that will allow a clearer understanding of current situation with regards to respecting consumers’ human rights while receiving services from the examined public authorities. As part of a second stage of the Insight Project, the qualitative research proposed is underway. v One of the aims of developing targets that use the principles underlying the HRA is to improve customer satisfaction/ experience with the public services being examined as part of the Insight Project. This report has attempted to show where the link may be found between human rights and customer satisfaction. The report has used SERVQUAL, the most prominent method of measuring customer satisfaction in extant literature, to show where human rights fit in relation to other factors driving satisfaction with public services. The report also illustrated where human rights rank in relation to other satisfaction factors and how expectations and perceptions can come into play. These findings may prove useful while forming any potential consumer-focused targets that will be based on the qualitative and quantitative phases of the Project. v However, it is highly unlikely that any potential targets that are not attached to specific principles (e.g. confidentiality, fairness etc) and groups of consumers (e.g. older people, disabled people etc) will be practical and realistic. This report has illustrated how abstract the concept of human rights is. It has also broken

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down the principles underlying the HRA into two categories based on the two major strands of the shadow working objective. While the first group of human rights principles may be used to improve the delivery of all the examined public services, the second group of human rights may prove significant in avoiding human rights breaches with individual users and services. It is also important to remember that the two targets are overlapping and by improving one we will also be improving the other. Therefore, both targets need to explicitly refer to at least one of these two groups and the specific principle that may come under it. Moreover, the report’s findings on awareness and experiences were organised under different groups that corresponded to the vulnerable populations in which the Human Rights Insight Project is interested. The data suggests that each of these groups is faced with different challenges. The breaches they may experience from the examined services may also vary. Moreover, members of these groups have different needs and characteristics and are particularly vulnerable to human rights violations. These individual characteristics and needs need to be reflected in any shadow PSA targets or other policy initiatives that may result from this Project. To conclude, practical and realistic targets can only be those, which are attached to specific groups of consumers and specific human rights principles. v This report has not examined whether any other jurisdictions have dealt with similar issues and if they have considered improving public services through the use of human rights principles. Moreover, the report has not examined how other jurisdictions that set up similar targets decided to go about them, and whether their programmes and methodologies have proved to be successful. Further desk research will be carried out to explore the experiences of both common law and civil law jurisdictions. In particular, it will examine whether the common law jurisdictions of Australia, Canada, USA, New Zealand and South Africa have programmes that aim to improve public services through the use of human rights principles. Lessons from these jurisdictions can prove particularly useful since all of these countries have established human rights commissions that have similar powers to the ones carried by the forthcoming Single Equality and Human Rights Commission. A possible shadow PSA programme or other initiatives that will set up human rights targets to improve public services will need to take into account any complications that may relate to this commission and also anticipate any top down or bottom up approaches that may involve the functions of this body. Desk research on the experiences of civil systems may also prove to be equally useful, as most European jurisdictions are now engaging in consultations to reform their public services so that they are compatible with the decisions of the European Court of Human Rights. For example, countries such as France, Germany, the Netherlands and Belgium are currently engaging in open consultation that will aim to bring their public services closer to their ECHR obligations. Interesting could also be desk research on the influence that European Law may have had on the delivery of these services, and on methods that member states may have employed in responding to their membership and treaty obligations.

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Appendix I: HRA Information Material Public Authorities: • “Human Rights Act: A New era of rights and responsibilities. Core guidance for public authorities” (2000) • “Putting Rights into Public Service. The Human Rights Act 1998: An introduction for public authorities” (1999) • David Lammy’s letter to Public Authorities “Human Rights: Improving Public Services” (2003) Civil Servants • “The Human Rights Act 1998 Guidance for Departments”, 2nd edition (2000) • Letter from John Warne Acting Home Office Permanent Secretary to Sir Richard Wilson, and all Permanent Secretaries dated 9 April 2001 • Letter from Sir David Omand (Home Office Permanent Secretary) to Sir Richard Wilson and all Permanent Secretaries dated 8 December 2000 • Letter from Sir David Omand (Home Office Permanent Secretary) to Sir Richard Wilson and all Permanent secretaries dated 19 March 2000 • Letter from Sir David Omand (Home Office Permanent Secretary) to Sir Richard Wilson and all Permanent Secretaries dated 29 November 1999 • Letter from Sir David Omand (Home Office Permanent Secretary) to Sir Richard Wilson and all Permanent secretaries dated - 26 May 1999 • Letter from David Omand (Home Office Permanent Secretary) to Sir Richard Wilson and all Permanent Secretaries dated 27 November 1998 Private and voluntary sector • “Study Guide: Human Rights Act”, 2nd Edition (2002) • “Private Sector Public Service. Human Rights For All: The Human Rights Act 1998” Members of the public • “Human Rights Act: An introduction” • “Study Guide: Human Rights Act”, 2nd Edition (2002) • FAQ web site: http://www.humanrights.gov.uk/hrafaqs.htm

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Appendix II: Possible targets for human rights PSA programme or other initiatives SHADOW WORKING OBJECTIVE: “Public sector services protect and respect individuals’ human rights and incorporate key human rights principles into service delivery”. DRIVERS AND LEVERS The Constitution Directorate’s project on human rights delivery and performance of 31/3/05 described the relevant drivers and levers as follows: “Drivers (to be developed following completion of research) -

to embed a human rights culture in the public services with the aim of improving, over time, the delivery of those public services to ensure that public services are delivered in a way which is ECHR/HRA compliant.

Levers (to be developed following completion of research) -

Regulatory bodies – like the Audit Commission OGDs responsible for relevant authorities – like ODPM In respect of local government and DoH in respect of the NHS Establishing effective corporate governance Human resources, corporate services and infrastructure supportive of HRA Better and more systematic promotion of HR across Whitehall and beyond”

TARGETS (See Annex for the shadow targets for democratic engagement and information rights.) A

PROVIDER-FACING TARGETS

Further research findings are expected to support targets along the following lines: B

increasing the % of public bodies with human rights integrated into their corporate strategy increasing the % of public bodies that build human rights into their procurement contracts with providers. CONSUMER-FACING TARGETS

Several types could be relevant to the Drivers noted above. 1

AWARENESS

First, if public awareness - of the HRA and/or its relevance to public services and to the standards they are expected to deliver to the public – can be shown to drive up standards in the delivery of public services (e.g. because, knowing their rights, the

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public will complain when their rights are not respected) – then raising awareness might be a worthwhile aim. Raising awareness would be well within the Government’s capabilities and resources, although it would carry the risk of heightening public criticism, e.g. when the courts uphold the rights of ‘unattractive’ litigants. Awareness could be measured relatively easily by adding questions to existing large-scale surveys. Any such measure would, however, be particularly vulnerable to ‘outside’ influence such as political campaigning against the HRA. 2

EXPERIENCES / EXPECTATIONS AND PERCEPTIONS

Second, people’s experiences/ perceptions of HR-related aspects of public service delivery could be tracked – assuming research demonstrates those aspects to be sufficiently (a) important to people and (b) separately identifiable from other important aspects of delivery (e.g. cleanliness). The focus groups held to the end of March suggest that ‘dignity and respect’ might be the most fruitful aspects to track, if it appeared best to track perceptions rather than experiences (i.e. if we leave it to the respondents to decide for themselves what ‘dignity and respect’ means to them). It might be possible to identify from the research aspects of people’s treatment by public services – such as whether their first name is used in hospital without permission – which, by common consent among those who participated in the research, constitute an infringement of their dignity. However, it is doubtful that the courts would consider use of first names without permission an infringement of human rights. Treatment more likely to be found by the courts to have infringed human rights, such as being expected to undress in front of others, would be rare and therefore difficult or embarrassing to ask questions about. The incidence would be so low as to make such indicators difficult to track. This seems to point to perceptions, rather than experiences, as a better indicator – although it carries the danger that something which one person would consider an infringement of their dignity and human rights would barely be noticed by another. However, standards of public services need to be linked to the higher end of public perceptions and expectations rather than the lower, if standards are to be driven up; otherwise, those able to pay will increasingly desert public services in favour of private providers. It would be possible to track perceptions either across the board (although the measurement would then be vulnerable to people’s hazy understanding of which services are ‘public’), or in relation to specified public services, such as NHS hospitals. DCA’s levers here are indirect: e.g., for hospitals, influence would need to be brought to bear via the DOH, the Healthcare Commission and the Audit Commission. Again, measurement ‘across the board’ might be achieved relatively easily by adding questions to existing large-scale surveys. Measurement in relation to specified services would demand that specific questions be put to comparable groups of consumers at regular intervals. Until we have consulted the key regulators and inspectorates, such as the Audit Commission and the Healthcare Commission, we cannot be sure whether their inspection programmes could be adapted to supply samplings of consumer experiences and perceptions on a sufficiently consistent and regular basis to support a PSA. They might, for example, build into their programme of hospital inspections some form of sampling of perceptions of people leaving after in-patient stays or out-patient visits. Similarly, the Social Care Commission could perhaps (if it does not do so already) invite the perceptions of residents of each long-term care facility it inspects. Failing this, a programme of additional consumer surveys would need to be put in place.

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By narrowing down the public services or groups of consumers as well as the aspects of human rights and service delivery, it might be possible to arrive at an indicator that is relatively immune from ‘outside’ influence in terms of people’s wider views on Government or public services (or ‘rights’ culture or Europe). 3

CONFIDENCE

A third possibility would be to track public confidence in some way: e.g. confidence that public services treat people with dignity and respect, or (in parallel to the FOI target underpinning the overarching target on information rights) confidence in the benefits of the HRA in encouraging public services to treat people with dignity and respect. Awareness-raising by DCA would form an essential element of the second formula, though not necessarily of the first. Before going down the ‘benefits of the HRA’ path it would be as well to have evidence of some existing recognition among the public of the benefits of the HRA in this area – and the focus groups so far do provide some evidence of this. Both formulae would rely on DCA working through sponsoring Departments (e.g. DoH) and key regulators (e.g. the Audit Commission and the Healthcare Commission); however, it might be possible to track indicators of this sort by means of adding questions to existing large-scale surveys. They would, however, be particularly susceptible to ‘outside’ influences such as wider views on Government and public services. 4

LITIGATION

By analogy with Information Rights, we might conceivably aim to reduce the proportion of successful ECHR cases against the UK Government, or HR issues argued successfully against public sector services in the UK courts. Either would be easily measurable, but neither is particularly susceptible to Government influence. Furthermore, litigation can be helpful to the achievement of a human rights culture, rather than the reverse – for example, in terms of defining legal principles to secure the human rights of vulnerable groups such as travellers or transsexual people. 5

CONCLUSION

Litigation does not offer a sensible indicator of progress towards our shadow working objective, but the other options considered – awareness; experiences/ perceptions/ expectations; and confidence – all have something to offer. Of these, the experiences/ perceptions/ expectations seems least vulnerable to ‘outside’ influence. The practicalities of measurement in these areas will need to be explored with the specific stakeholder group – the key regulators and inspectorates – as soon as possible. CONSTITUTION DIRECTORATE’S SHADOW PSA TARGETS A

Democratic Engagement

Overarching target: “more people understand and engage with government, including by voting” Provisional Headline Measures 1: To reduce the gap between registration amongst young people and the wider electorate”

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2: “To reduce the gap between registration among BME groups and the wider electorate B

Information Rights

Overarching target: “Information Rights are fully upheld and people have confidence in their benefits” Provisional Headline Measures 1: To reduce by 10% the proportion of successful appeals to the Information Commissioner (central Government only) 2: To increase by 5% the proportion of people expressing confidence in the benefits of FOI in encouraging openness

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Appendix III: The principles underlying the HRA

Civil Rights principles underlying the HRA

Principles that could be used as agents of a process that could improve public services

Being treated with dignity and respect 1. 2. 3. 4.

Respect for the person Right to be free from inhumane/degrading treatment Recognition of a person’s dignity Respect of a person’s home and family

Principles that maybe relevant to individual cases and should be taken into account by certain public authorities 1. 2. 3.

Right to Private Life Right to life Freedom of thought, conscience and religion

Equality 1. Non-discrimination 2. Social Inclusion 3. Equality in the narrow sense

Fairness 1. Fair procedures 2. Fair outcomes 3. Participation in procedures

Confidentiality 1. 2. 3. 4.

Written communication Verbal communication Records, reports Other

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Appendix IV: Sample of the Qualitative Research Phase of the Human Rights Insight Project Representative consumers

Sample size

One to ones

Groups

General public Minority groups Comms difficulties Total

16 4 3 23

0 4 3 7

2x8=16

Frequent users

Sample size

In residentia l care

18

Not in residentia l care

18

Former Mental Health inpatients ; parents and partners who are speaking for the affected person (not as professio nal carers)

18

Age breakdown represented 65

16

One to ones

2 in a residential home for older people (must be receiving personal or nursing care) 2 in nursing/care homes – but not elderly (eg disabled, long term ill) 2 in hospitals (must be longer stayers = more than 8 weeks) 2 hospital users (eg HiV, diabetes, obesity, anorexia, renal problems, car accidents, etc). All outpatient 2 social services users – eg meals on wheels, care at home 2 with learning disabilities 2 formerly detained as acute mental health inpatients under the Mental Health Act may include people with addictions if part of bigger mental health problem. See note at end 2** parents/carers of children with serious long-term conditions (eg epilepsy) 2** young people (over 16) who were looked after in a residential home for children until recently

Groups (6 in each group)

Health N/a N/a N/a N/a

SS/CS N/a N/a N/a N/a

Age breakdown

Service bias

65

Health

1 group in a nursing / care home - but not elderly 1 group in a residential home for older people, receiving care as left

0

10

8

2

1 group with health issues involving GP and/or hospital (as left)

0

13

5

8

5/ 5

7**

11

0

8

5/ 5

S S/ C S* 8/ 8

1 group who use social/council services – see list of services above 1 group of adults who have undergone treatment for addiction and/or other mental health problems 1 group of adults (parents**, partners, etc) who have family member in long term care who they visit regularly and who cannot speak for themselves (eg Alzheimers, autism)

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Minority groups People with comms difficulties Total

6 3

63

See criteria for frequent users See criteria for frequent users and comms difficulties 7

6

?

?

3

?

?

18+ ?

36 + ?

43

13

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Appendix V: Examples of misleading media coverage of the Human Rights Act 1. Source Daily Star, Friday, March 04, 2005, page 6

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2. Daily Star, Friday, March 04, 2005, Page 11

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3. Daily Telegraph, Friday, March 04, 2005

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4. The Sun, Friday, March 04, 2005

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5. Story from BBC NEWS: http://news.bbc.co.uk/go/pr/fr//1/hi/uk_politics/3590806.stm Published: 2004/08/23 15:44:38 GMT Tories to review Human Rights Act A commission to review in detail the Human Rights Act is to be set up by the Tories, shadow home secretary David Davis has announced. The 1998 Act has given rise to "too many spurious rights" and fuelled a compensation culture which is "out of all sense of proportion", he said. The review will consider reform, repeal or replacement of the act, he added. But Constitutional Affairs minister Lord Filkin insisted the Act had not produced a "deluge of claims". The commission will be appointed by the Tories in October and its report would be ready before the general election, he said. Mr Davis believes the increase in claims for compensation is the result of a greater emphasis on people's rights as opposed to their own responsibilities. All too often it seems to give criminals more rights than the victims of crime. This has to stop David Davis shadow home secretary "Britain is a country with a long-standing tradition of respect for human rights and civil liberties. However, the Human Rights Act has given rise to too many spurious rights. "It has fuelled a compensation culture out of all sense of proportion and it is our aim to rebalance the rights culture," he said. The Tories decided to set up a "quality" commission to look into the Act as it was a "very serious and complex area of law which needs to be looked at in detail." Mr Davis stressed that he was "not opposed to human rights" which were "worth fighting for." Criminals But the Human Rights Act was a "seriously malfunctioning Act of Parliament" and "all too often it seems to give criminals more rights than the victims of crime. This has to stop," he said. However, Lord Filkin said the government had not seen and fundamental faults with the Human Rights Act. He said: "The country is not in the grip of a compensation culture - this was the conclusion of a recent independent report by the Better Regulation Taskforce. "Overall accident claims actually fell last year by 9.5%." He did acknowledge that a "perception" of a compensation culture was damaging and said the government was determined to tackle the situation. Hard-core But Mr Davis cited limitations put on the Home Office's ability to deport failed asylum seekers for criticisms. But Mr Davis said the Tories did not intend to opt out of the European Convention on Human Rights which was adopted into UK law under the Human Rights Act. It meant that citizens no longer had to take their case to Europe to enforce rights contained in the convention but could make challenges in the British courts. Purpose of Tory Rights Act review Recommend changes to UK law to guarantee liberties Check escalating volume of rights claims Enable a firm, fair immigrations policy If in government, the Conservatives would opt out of specific aspects of the convention, as the Labour government does now, he said.

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Human Rights law expert Geoffrey Bindman QC said a very small number of cases were brought under the Human Rights Act - which simply allows British judges to rule on the European convention. "It is simply not true that we have incorporated some European form or document. "It very much follows the principles of basic rights - freedom from arbitrary arrest, and detention, freedom from torture, freedom of expression and right to a private life," he told BBC Radio 4's World at One. "The idea of frivolous claims is unreal. It has been a bugbear for many years in the tabloid press. They have been looking for ludicrous cases. It isn't too difficult given we are a country of 60 million people," he added. 'Few claims' Mark Harvey of the Association of Personal Injury Lawyers said the so-called "compensation culture" was a myth and people like Mr Davis were simply "exacerbating" it. General secretary of the GMB union, Kevin Curran, said: "The idea that there are such things as spurious rights is spurious in itself. "If anything Britain needs strengthened rights for people." © BBC MMV

Tories to end 'culture of claims' The "human rights" industry has created a compensation culture which limits freedoms and costs Britain £10bn a year, says Tory spokesman David Davis. Writing in the Spectator magazine he argued: "The rights culture... is so deeply rooted in society that we have lost all common sense". Mr Davis also claimed the Human Rights Act is the "worst emanation" - of the compensation culture. The article comes as the Tories prepare to set out plans to review the act. We need to think about cutting the cancer of litigation out of the public services altogether Shadow Home Secretary David Davis Mr Davis gives the example of a serial murderer who successfully demanded the delivery of hard-core pornography to his prison cell because of his right to information. He also points to cases like that of the Girl Guide, whose parents won £3,500 after she singed her fingers on cooking sausages. Citing a doubling of the number of compensation claims against schools and hospitals since 1997, Mr Davis argues the fear of litigation leads doctors to practise "defensive medicine" and stops teachers taking school trips. "We need to think about cutting the cancer of litigation out of the public services altogether, except where a public servant may be said to have recklessly endangered those in his charge," he writes. HAVE YOUR SAY It's just too easy to blame others for our own stupidity Jason Miles, Reading, UK "We need to think about how to limit liabilities on company directors and charity trustees, how to "sunset" health and safety legislation and how to end the distorting effect of discrimination law which positively encourages claims on the basis of race and sex." Echoing party leader Michael Howard's recent speech on law and order, he calls for a "culture of responsibility and common sense" to be nurtured. 'Troublemakers' But Mr Davis stresses that "leaving the individual defenceless" against the state or the criminal is not an answer.

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The problem, he says, is that the human rights system "rewards compensation chasers and criminal troublemakers". Senior Employment Rights Officer at the Trades Union Congress Hannah Reed said employment law and discrimination legislation were key to ensuring basic standards are observed in the work place. She added "Where the TUC believes litigation should be the last resort it is very important that individuals should have access to justice and that their basic rights are protected." A set of plans to deal with the issue are expected to be unveiled by the Tories next week. 'Balance' A Conservative Party spokeswoman said they had been looking at what areas of the Human Rights Act should be rewritten and what should be scrapped. "We've had a lot of people saying they don't want the situation where our kids can't go on school holidays." "Where there is a duty of care for example and someone breaches that there has to be compensation. But when you have people who are just pushing for it - that's different," she added. "It's about making sure that we get the balance right." The European Convention on Human Rights was adopted into UK law in 1998 under the Human Rights Act. It meant that citizens no longer had to take their case to Europe to enforce rights contained in the convention but could make challenges in the British courts. Story from BBC NEWS: http://news.bbc.co.uk/go/pr/fr/-/1/hi/uk_politics/3582652.stm Published: 2004/08/20 11:27:06 GMT © BBC MMV

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Bibliography Action on Elder Abuse (2000) Listening is not Enough: An Analysis of calls to Elder Abuse Response – Action on Elder Abuse’s national helpline by Jenkins G and Asif Z, London: Action on Elder Abuse Age Concern (2004) Public Involvement and the Commission for Equality and Human Rights Age Concern (2001) When a House in not a Home: Older people and their housing Age Concern (2001) Improving Access by black and Minority ethnic elders to Information and Advice Services Audit Commission (2002) Equality and Diversity: learning from audit, inspection and research AC: London Audit Commission (2003) Human Rights: Improving Public Service Delivery, London Back, L. and Solomos, J. (1992) "Who Represents Us? Racialized politics and candidate selection" Research Papers No 3, Dept. of Politics and Sociology, Birkbeck: London British Institute of Human Rights, Watson, Jenny (BIHR) (2002) Something for Everyone, Comic Relief Cabinet Office (2002) Creating Public Value: An analytical framework for public service reform Council of Europe (2005) Report by Mr. Alvaro Gil-Robles, Commissioner for Human Rights th th on his visit to the United Kingdom 4 -12 Novermber 2004, Council of Europe: Strasbourg th Croft, Jeremy (2003) “Report by Jeremy Croft: 6 Report”, Vol II Ev 252 Joint Committee of Human Rights Davis David (2005) “Victim Nation” The Spectator August 2004 Daw Rowena (2000) “Human Rights and Disability: A Report prepared for the Disability Rights Commission and The Royal National Institute for Deaf People” Department of Health, Alexander Z (1999) Study of Black, Asian and Ethnic Minority issues, London: Department of Health Department of Health (1998) They look after their own, don’t they? Inspection of community care services for black and ethnic minority older people, London: Department of Health Gooding Caroline (2004) The Application of the ECHR in British Courts in relation to disability issues: Disability Rights Commission Grant P et al (2000) “The management of elderly blunt trauma victims in Scotland: Evidence of ageism” 31(7) Injury, 519-29 Hayden C and Boaz A (2000) Making a Difference: Better Government for Older People Evaluation Report Health Advisory Service (2000, 1998) Not Because they are old: An independent inquiry into the care of older people on acute wards in general hospitals, London: Health Advisory Service Help the Aged and ACHCEW (2001) Casualty Watch 2001, London: Association of Community Health Councils for England and Wales Help the Aged (2002) Age Discrimination in Public Policy: A Review of Evidence Home Office (2001) “Implementation and Early Effects of The Human Rights Act 1998” Session 2000-1, Evidence to the JCHR th Joint Committee of Human Rights (2002-3) The Case for a Human Rights Commission, 6 Report, session 2002-03 HL Paper 67-I HC, Vol pp 11-12 Joint Committee of Human Rights (2005) Draft Mental Health Bill, Vol 1, session 2004-05, HL Paper 79-I HC 95-I Institute of Public Policy Research (IPPR), Butler, Frances (2004) Human Rights: Who needs them? Using Human Rights in the Voluntary Sector, IPPR: London Kent Count Council (2002) Culturally Competent Care Services Klug, Francesca (2001) “The Human Rights Act: Can you Spot the Difference?” Lecture given at the British Institute of Human Rights, London Klug, Francesca (2000) “The Human Rights Act Research Unit. Target of the tabloids”, the Guardian 14.7.2000 Lakey R, J Modood, T., Berthoud,. Nazroo, J., Smith, P., Virdee, P. and Beishon, S (1997) Ethnic Minorities in Britain: diversity and disadvantage, The Fourth National Survey of Ethnic Minorities PSI: London.

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Lord Falconer (2004) “Using Human Rights in the Voluntary Sector” Speech at the Institute of Public Policy Research, London Lord Falconer (2003) “Examination of Witness” Joint Committee on Human Rights Obrien, Mike (1998) HC Deb. 21.10.98 col 1322 National Director for Older People’s Services (2004) Better Health in Old Age

Macpherson, Sir William (1999) The Stephen Lawrence inquiry, presented to Parliament by the Secretary of state for the Home Department by Command of her Majesty Margiota Pat, Raynes Norma, Pagidas Dimitri, Lawson John and Temple Bodusia (2003) Are you listening? Current practice in information, advice and advocacy services for older people, York: Joseph Rowntree Foundation Mental Health Act Commission (2000) Response to the Council of Europe’s White Paper on Mental Health and Human Rights Mind (2004) For Better Mental Health: The National Service Framework for Mental Health MORI (2001) Understanding Satisfaction: Customer Attitudes to Public Services – Research review conducted for the Cabinet Office National Standing Nursing and Midwifery Advisory Committee (2001) Caring for Older People: A Nursing priority, London: NSNMAC Office of the Deputy Prime Minister B (2003) Equality and Diversity in Local Government in England, ODPM: London Prime Minister’s Strategy Unit (2005) Improving the Life Chances of Disabled People, London: Cabinet Office Sheard D 1999 The empowerment and participation of service users in service evaluation and development -Study for Coventry Health Authority Social Exclusion Unit (2004) Tackling Social Exclusion: Taking stock and looking to the future, London: ODPM Straw, Jack (1999) “Building a Human Rights Culture” Address to Civil Service College Seminar, London Telephone Helplines Association (2003) THA Bulletin: October The 19990 Trust (2004) Delivering Equality and Human Rights for Black and Minority Ethnic Communities, London: The 1990 Trust

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Other documents used Governmental and Parliamentary documents • • • • • • • • • • • • • • • • •

• • • • •

Audit Commission (2003) Human Rights: Improving public service delivery, London Audit Commission (2003) Connecting users with citizens, London: AC Audit Commission (2002) The Human Rights Act: A Bulletin for public bodies Audit Commission (1998) Better by far: Preparing for best value, London District Audit (2002) The Human Rights Act A Bulletin for Public Bodies, London: District Audit Welsh Assembly Government (2000) Core Guidance for Public Authorities, Equality Policy Unit Local Government Association, Deciding rights: Applying the human rights Act to good practice in local authority decision-making Department of Health (2001) Care homes for younger adults and adult placements, London: Stationery Office Reports of the Parliamentary Joint Committee on Human Rights (see separate document) Prime Minister’s Strategy Unit (2005) Improving the prospects of people living in areas of multiple deprivation in England, Cabinet Office Prime Minister’s Strategy Unit (2005) Improving the life chances of disabled people, Cabinet Office Prime Minister’s Strategy Unit (2002) Life Satisfaction: The state of knowledge and implications for government Performance and Innovation Unit (2001) Satisfaction with public services DTI (2004) Fairness for all: A new commission for equality and human rights: White paper and responses House of Lords Hansard (3 November 1997) 1228, 1308, statements made by the Lord Chancellor: “a culture of awareness of human rights will develop” CEHR/TF/08/002, CEHR/TF/11/001 David Lammy (4 February 2004) Inspecting for Improvement: Developing a Customer Focussed Approach Speech on Equality and Human Rights, Queen Mary and Westfield College Seminar Healthcare Commission concordat (2004) Concordat between bodies inspecting, regulating and auditing healthcare Department of Health Care Homes for Older People (2003) A statement of national minimum standards published in February 2003 DFEE (1990) Education for citizenship and teaching of democracy in schools Jack Straw (9 December 1999) Building a human rights culture, speech Civil Service College Home Office (1999) Putting Rights into Public Service: The Human Rights Act 1998: An introduction for Public Authorities, London: HO

DCA documents • • • • • •

DCA Core Guidance for Public Authorities Human Rights Unit nd DCA (2002) Study guide, 2 ed DCA (2002), The impact on the courts and the administration of justice of the Human Rights Act 1998, by Raine John and Walker Clive, No 9/2002 David Lammy (24 February 2005) Human rights under attack, Speech at the London School of Economics, London Lord Falconer of Thoroton (8 December 2003) Constitutional Reform Speech, University College London Lord Falconer of Thoroton (3 December 2003), "DCA: Justice, Rights and Democracy" Speech to the Institute for Public Policy Research, London

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•

DCA Human Rights Act 1998: A Statistical Update (www.dca.gov.uk/humanrighhts/hrimpact.htm)

Documents by NGOS and centres • • • • • • • • • • • • • • • • • • • •

Community Care magazine statistics (1-7 August and 19-25 September 2002) children and young people with severe mental illness) The British Deaf Association statistics Clarke Alison and Les Bright (2002) Showing Restraint: challenging the use of restraint in care homes, London: Counsel and Care Easterbrook Lorna (2001) Friday is pay day, Help the Aged Counsel and Care (2002) Residents taking risks Counsel and Care (2002) Sex and relationships Children’s Society, Refugee Council and Save the Children (2002) A case for change Refugee Council (2002) Disabled people in refugee and asylum seeking communities, Joseph Rowntree Foundation The British Institute of Human Rights (2002) Something for Everyone, London: HR and Comic Relief Public Law Project (2003) The impact of the HRA on judicial review Help the Aged (2003) Memorandum on older people and human rights LAG (2003) Human Rights Act toolkit Frances Butler (2 July 2001) Mediation: a Tool for Mainstreaming Human Rights? Evidence to the Joint Committee on Human Right Rachel Hurst (2001) Why a Convention on the Rights of Disabled People?British Institute of Human Rights Newsletter BIHR (2002) Inquiry into the Definition of Public Authority: Implications for the Application of the Human Rights Act Frances Butler (2004) Human Rights: Who Needs Them? Clare Collins (2004) Public involvement and the Commission for Equality and Human Rights Age Concern Women and Equality Unit in DTI (2003) Delivering on Gender Equality: Supporting the PSA Objective on Gender Equality 2003-2006 Women and Equality Unit in DTI (2004) Delivering on Gender Equality: A Progress Report on the Gender Equality Public Service Agreement 2003-2006 Organisation for Economic co-operation and Development (1996) Responsive Government: Service Quality Initiatives, OECD

Academic documents • • • • • • • • • • •

Keir Starmer (1999) European Human Rights law, London: LAG Francesca Klug (14 July 2000) The Human Rights Research Unit – Target of the Tabloids The Guardian Francesca Klug (2001) The Human Rights Act – Can You Spot the Difference?, Speech BIHR Francesca Klug (2001) The Human Rights Act – A ‘Third Way’ or ‘Third Wave’ Bill of Rights, King’s College London Francesca Klug (2001) The Impact of Human Rights on Civil Society, The Directory of Social Change/Justice Conference for the Voluntary Sector on 23 November 2001 Francesca Klug (2001) Human Rights Day Introductory Speech, Justice/Liberty Human Rights Awards on 10 December 2001 Human Rights Act Research Project 2001, Year One of the Human Rights Act 1998 Francesca Klug (2002) The Human Rights Act 1998: Winners and Losers, Justice Seminar on 9 August 2002 Jennifer McDermott (2003) Public Authorities under the Human Rights Act 1998, Partner Lovells on 6 October 2003 Francesca Klug (2003) The United Kingdom Experience, speech Francesca Klug (2000) Value of a godless age, Penguin Books

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• • • • • • • • • • • • • • • • • • • • • • • • • • •

Francesca Klug and Sarah Spencer (1998) Education for citizenship, Joint Response to the Interim report of the Advisory Group on Education for Citizenship Halliday Simon and Schmidt Patrick (2004) Human Rights Brought Home: Socio-legal perspectives on human rights in the national context, OUP Pollit Christopher and Bouckaert Geert (1995) Quality improvement in European Public Services: Concepts, cases and commentary, London: Sage Drabble Richard, Maurici James and Buley Tim (2004) Local authorities and human rights OUP Farran Sue (1996) The UK before the European Court of human rights: Case law and commentary, Blackstone Gearty Conor (2004) Principles of human rights adjudication, OUP Vickers Lucy (1997) “Whistleblowing in the public sector and the ECHR” Public Law, 594602 Palmer E (1999) “Residential care: rights of the elderly and the contracts” 22 (4) Journal of Soc Wel. & Fam. L., 461-476 Oliver Dawn (2000) “The frontiers of the state: Public authorities and public functions under the human rights act” Public Law, 476-493 Oliver Dawn (2000) “The Human Rights Act and Public Law-Private law divides” 4 European Human Rights Law Review, 343-355 Pollock Allyson (2001) “Complaints as accountability? The case of health care in the UK” Public Law¸115-133 Craig Paul (2002) “Contracting out, the Human Rights Act and the scope of judicial review” 118 Law Quarterly Review, 551-568 Fairgrieve Duncan (2002) “Pushing back the boundaries of Public authority liability: Tort law enters the classroom” Public Law, 288-308 Susking Maurice (2004) Pushing forward the frontiers of human rights protection: The meaning of public authority under the Human Rights Act” Public Law, 643-658 Clements Luke and Morris Rachel (2004) “The Millennium Blip: The Human Rights Act 1998 and local government” in Halliday and Schmidt Human Rights Brought Home, OUP Meechan K (2001) “The Human Rights Act: Public Authority preparations” Journal of Local Government Law¸56-60 Klug Francesca (2001) “The Human Rights Act: Basic Principles and Values” Journal of Local Government Law, 41ff Hammond A (1999) “The Human Rights Act and the Government Legal Service” 20 (3) Statute Law Review, 230-37 Spencer S and Bynoe (1998) A UK Human Rights Commission-the options, London: IPPR Rosenberg GR (1991) The Hollow Hope: Can Courts Bring About Social Change? London: University of Chicago Press Clements L and Read J (2003) disabled People and European Human Rights, Bristol: Policy Press O’Neill O (2002) a Question of Trust, CUP Harris J (2003) The Social Work Business London: Routledge Clements L and Young JR - Human Rights: Changing the Culture, Blackwell, Oxford Clements L - The Dog that didn't bark Disability Rights in Europe: From Theory to Practice (Editors Lawson L and Gooding C), Hart Publishing, Oxford (2004) Clements L - Community Care Law and the Human Rights Act Understanding care, welfare and community (Editors Blytheway, B et al), Routledge, London Clements L - Protecting Rights in a Culture of Change: Legal Action Journal of the Legal Action Group, May (2002)

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Dr. Theo Gavrielides Strategy Development Division/ Consumer Strategy Directorate Department for Constitutional Affairs 5th Floor, Selborn House 54-60 Victoria Street, London SW1E 6QW Tel: 020 7210 8059 Fax: 020 7210 1393 Email: [email protected]

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