The Government announced the outcome of its review of the UK's position under international human rights instruments on 3 March 1999. A note summarising the issues considered and the conclusions reached in respect of the United Kingdom and Crown Dependencies was placed in the Library of Parliament and on the Internet. This is an updated version of that note and reflects the position on 26 August 1999. The position in the Overseas Territories is covered in Part III of the 5th Periodic Report.
1. European Convention on Human Rights (ECHR)
Not ratified
i. Protocol no. 4
There are concerns over Articles 2 and 3 of Protocol 4 which could be taken, respectively, to confer rights in relation to passports and a right of abode on categories of British nationals who do not currently have that right. The Government wishes to give formal recognition to the rights contained in Protocol 4, but this must be done in a way which is compatible with immigration legislation. The Government is considering whether it would be possible to draft a reservation to enable the UK to ratify the Protocol, or whether fresh legislation would be required.
Not possible to ratify at this stage.
ii. Protocol no. 6
Death Penalty.
Ratified for the UK and Crown Dependencies on 20 May 1999.
iii. Protocol no. 7
There are three rules of family law which need to be amended in the context of Article 5 before the UK can ratify this Protocol. These rules are:
The Government will propose the necessary changes when a suitable legislative opportunity arises.
In addition, the provision in article 1(1) which provides for a right of review in the event of expulsion of an alien who is ‘lawfully resident' presents problems of definition. The Government may need to make a reservation on ratification to ensure that the wording is interpreted as having the meaning it is given in the Explanatory Report to the protocol.
The Government is committed to ratifying Protocol 7 when inconsistencies in family law have been removed.
Reservation
i. Protocol 1, Article 2
This reservation, made on ratification, makes clear that Article 2 is accepted ‘only so far as is compatible with the provision of efficient instruction and training, and the avoidance of unreasonable expenditure'.
Need to retain.
Derogation
i. Article 5(3) of ECHR
This derogation relates to the Secretary of State's power under the Prevention of Terrorism (Temporary Provisions) Act 1989 to extend the period of detention of persons suspected of terrorism connected with the affairs of Northern Ireland for up to a total of seven days.
The derogation would be able to be lifted once a suitable judicial element is introduced into the extension of detention process. The Government sought views on the most effective arrangements for doing so in the consultation paper, Legislation Against Terrorism, published in December 1998.
The derogation needs to be retained until provisions for a judicial element are introduced.
2. International Covenant on Civil and Political Rights (ICCPR)
i. First Optional Protocol to ICCPR
Right of individual petition.
Commitment to review again after implementation of the Human Rights Act.
ii. Second Optional Protocol to ICCPR
Death penalty: the United Kingdom will ratify this without any declaration to preserve the death penalty in wartime.
The United Kingdom signed the Protocol on 31 March 1999 and expects to ratify it before the end of 1999.
Derogation
i. Article 9(3): detention of terrorist suspects.
This derogation would be able to be lifted once a suitable judicial element is introduced into the extension of detention process. The Government is seeking views on the most effective arrangements for doing so in the consultation paper, Legislation Against Terrorism, published in December 1998.
The derogation needs to be retained until provisions for a judicial element are introduced.
Reservations
i. General: ratification does not preclude laws and procedures to preserve service and custodial discipline of the armed forces and prisoners.
It is necessary to retain this for matters relating to discipline in the armed forces, in order to maintain combat effectiveness.
It is also necessary to maintain good order and discipline in prisons, and to ensure that prisoners can be subject to disciplinary proceedings. Prisoners are subject to a series of restrictions and procedures which are not specifically provided for in the Covenant.
Need to retain.
ii. Article 10(2)(b) & 10(3): reserve right not to detain juveniles separately from adults in certain circumstances.
The Prison Service is establishing a separate under-18 estate, but there will continue to be occasions when some mixing of young offenders and adult prisoners is necessary. This may be due to a lack of suitable accommodation or adequate facilities for a particular young person. For example, young people may have to be lodged in adult prisons on their way to and from court, or during a trial.
Need to retain.
iii. Article 11: reserve right not to apply this in Jersey.
Jersey law permits imprisonment for debt. The power is rarely used, and only in cases where the debtor is unwilling, rather than unable, to pay. Law also allows for the arrest of a debtor prior to judgement in certain cases.
Need to retain.
iv. Article 12(1): interpreted as applying separately to each of the UK territories and dependencies.
Article 12(1) says ‘Everyone lawfully in the territory of a State shall, within that territory, have the right of liberty of movement and freedom to choose his residence'. This reservation is necessary to clarify the extent of the provision - without it, Article 12 could preclude controls on immigration from the Overseas Territories.
Need to retain.
v. Article 12(4): reserve right to apply immigration legislation.
Article 12(4) says ‘No one shall be arbitrarily deprived of the right to enter his own country.' This reservation is needed to ensure that the meaning of ‘own country' is not inconsistent with immigration laws.
Need to retain.
vi. Article 20: advocacy of national, racial or religious hatred - interpret to be consistent with Articles 19 and 21 and therefore reserve the right not to introduce further legislation.
UK legislation covers offences against public order, including incitement to racial hatred, but there are currently no plans to legislate against religious discrimination.
Need to retain.
vii. Article 24(3): acceptance subject to provisions of nationality legislation limiting citizenship to those having sufficient connection with the UK.
Article 24(3) says ‘Every child has a right to acquire a nationality'. The reservation is needed to protect restrictions in UK law on the acquisition of British citizenship by minors.
Need to retain.
3. Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT)
Declaration
i. The UK has not made a Declaration under Article 22 of CAT recognising the right of individual petition.
Commitment to review again after the implementation of Human Rights Act.
4. International Convention on the elimination of all forms of racial discrimination (ICERD)
Declaration
i. The UK has not made a declaration under Article 14 of ICERD recognising the right of individual petition.
Review again after implementation of the Human Rights Act.
Interpretative statements
i. The UK does not regard the Commonwealth Immigrants Acts 1962 and 1968 as involving racial discrimination and reserves the right to continue to apply them.
The Acts of 1962 and 1968 have been repealed, but their substance (with refinements) is in current immigration legislation. The interpretation is still required because it covers the successor legislation.
Need to retain.
ii. Article 4: legislative measures needed only as far as required for purposes of the Article having regard to the principles of UDHR and the rights in Article 5.
The UK maintains its interpretation that a party to the Convention need only adopt further legislative measures if it considers such action necessary having regard to the rights of freedom of expression, freedom of association etc. Article 4 requires State Parties to ban the dissemination of racist views as well as organisations and organised activities which promote and incite racial discrimination, and to outlaw participation in such groups and events. The UK has no plans to impose such a ban, on the basis that current laws are sufficient to fulfil our obligations under this Article. (It is an offence to incite racial hatred, under Part III of the Public Order Act 1986. The UK is also committed to the European Union Joint Action on Racism and Xenophobia which provides for improved judicial co-operation in tackling racially inflammatory behaviour and material.)
Need to retain.
iii. Article 6 - interpretation of ‘reparation or satisfaction'.
This is necessary for clarification. Article 6 refers to the role of domestic tribunals in satisfying a complainant's right to ‘reparation or satisfaction'. The UK interprets this right as having been satisfied if one or other of these forms of redress is made available. It interprets ‘satisfaction' as including any form of redress which would bring the discriminatory conduct to an end. It would be unusual for an industrial tribunal, having upheld a complaint of racial discrimination, not then to make financial reparation. But the finding of a violation of human rights is not invariably followed by a payment of compensation. In ECHR cases, for example, a judgement finding a violation can be sufficient just satisfaction in itself.
Need to retain.
iv. Article 20 - if a reservation is not accepted the reserving State does not become a party.
The UK interpretation of Article 20 and the other related provisions of Part III of the Convention remains unchanged.
Need to retain.
5. Convention of the Rights of the Child (CRC)
Interpretative statements
i. Convention only applies following a live birth.
Need to retain.
ii. ‘Parents' are those treated as parents under law.
Need to retain.
Reservations
i. Reserve right to apply immigration and nationality legislation.
The UK believes that its immigration and nationality law is consistent with the Convention. The reservation makes it clear, however, for the avoidance of doubt, that nothing in the Convention is to be interpreted as affecting the operation of the legislation.
Need to retain.
ii. Article 32: applies subject to employment legislation relating to young people aged 16-18.
Following implementation of the Young Workers Directive, this is no longer necessary.
The reservation will be withdrawn.
iii. Article 37(c): reserve right not to accommodate young offenders separately from adults if there is a lack of suitable accommodation or facilities.
The Prison Service is establishing a separate under-18 estate, but there will continue to be occasions when the mixing of young offenders and adult prisoners is necessary. This may be due to a lack of suitable accommodation or adequate facilities for a particular young person. For example, young people may have to be lodged in adult prisons on their way to and from court, or during a trial.
Need to retain.
6. Convention on the Elimination of all forms of Discrimination against Women (CEDAW)
Interpretative statements
i. Statement A (a): the UK does not regard the Convention as imposing any need to modify any existing laws which require women to be treated more favourably than men - the undertaking under Article 4 to be construed in that light.
This makes it clear that the intention of the measure is to protect women from sex discrimination and to promote women's rights up to the level enjoyed by men. It also preserves areas of the British Nationality Act which discriminate in favour of women.
Need to retain.
ii. Statement A(c): obligations under the Convention do not extend to the Throne, the peerage, titles etc, religious denominations or the armed forces.
This may be reviewed again in due course in respect of the Throne, but will still be necessary for titles of honour, social precedence, armorial bearings, and religious denominations or orders. This also covers some posts in the armed forces which are closed to women on grounds of combat effectiveness.
Need to retain.
iii. Statement A(d): right to continue to apply immigration legislation.
Reserves the right to continue to apply immigration legislation - acceptance
of Article 15(4) and other provisions is subject to that.
Need to retain.
Reservations
i. Article 9: does not invalidate continuation of transitional provisions
relating to the British Nationality Act 1981.
For certain applications for resumption of British nationality, ancestral
connections with the United Kingdom or an Overseas Territory traced through
the male line will suffice, but not a connection through the female line.
There is no deadline for the submission of applications in this category,
but it is transitional in the sense that the applicant must, by definition,
have been alive on 31 December 1982. The reservation will be required while
applications can still be made under the Act.
Need to retain for the time being.
ii. Article 11: reserves right to apply UK legislation etc on pensions and benefits, and to provide for restrictions on employment to protect women's health. Part of the reservation is redundant as benefit rules have been equalised, but survivors' benefits are not equal, as widow's benefits are not paid to men. The legislation concerning survivors' benefits is, however, under review.
Need to retain for the time being.
iii. Article 13: does not affect tax law.
This reservation applies to the Isle of Man. It enables the Isle of Man to deem, for tax purposes, the income of a married woman to be her husband's income. The reservation will be necessary until the Isle of Man enacts legislation to remove the discrimination.
Need to retain.
iv. Article 15: only the elements of a contract which are discriminatory are invalid, not the contract itself.
The effect of article 15.3 is that an entire contract would be declared void, which the UK regards as counter-productive. The reservation follows the line taken in the Sex Discrimination Act. For example, if a mortgage document contained a discriminatory term, under article 15.3 it would be declared void and the borrower would immediately have to repay the loan. The reservation has the effect of placing any consequential loss on the discriminator.
Need to retain.
v. Article 16: does not affect adoption law.
Article 16 provides that the interests of the child shall be paramount, but the test in English adoption law is slightly different. The Adoption Act 1976 requires a court to have regard to all the circumstances, although the welfare of the child is the first consideration. Domestic adoption law would need to be amended before this anomaly can be corrected. There is currently no prospect of primary legislation.
Need to retain for the time being.
7. International Covenant on Economic, Social and Cultural Rights (ICESCR)
Declaration
i. Article 1: in the event of any conflict, obligations under UN Charter prevail (Article 103).
Need to retain.
Reservations
i. Article 6: interpret as not precluding restrictions based on place of birth and residence qualifications to safeguard employment opportunities.
Removal would be contrary to Government employment policy e.g. Work Permit scheme.
Need to retain.
ii Article 7(a)(i): postpone application of equal pay for equal work in certain territories.
Now only applies in Jersey, Guernsey and the Isle of Man. At time of ratification, the Islands did not have any legislation dealing with equal pay for equal work. There are currently proposals to introduce legislation on sex discrimination, but these are at an early stage.
Need to retain.
8. ILO Conventions
i. ILO Convention 111 (Discrimination)
The UK ratified this Convention on 3 March 1999.
ii. ILO Convention 138 (minimum age)
Under review.