Prof Brice Dickson: The UK’s Engagement With International Human Rights Monitoring Mechanisms
5 December 2022
We are pleased to welcome this guest post from Prof Brice Dickson, Emeritus Professor of International and Comparative Law at Queen’s University Belfast, in which he sets out the international human rights monitoring mechanisms applicable to the UK and considers the UK’s engagement with the relevant monitoring processes (Eds).
On 10 November 2022 the UN Human Rights Council conducted its fourth Universal Periodic Review of the UK’s compliance with international human rights standards. The Council’s report was adopted just six days later and contained no fewer than 302 recommendations from other States on how the UK could improve its human rights record. That figure is up from 227 in 2017. For early accounts of the review meeting see the pieces by Marcial Boo and Robert Booth.
The UPR, of course, is just one of many international mechanisms for monitoring human rights in the UK. In a book published this month, International Human Rights Monitoring Mechanisms: A Study of their Impact in the UK, I examine the full range of monitoring mechanisms to which the UK is subject and attempt to evaluate how they have operated to date, especially since 2000. In particular, I try to determine what difference they have made to the protection of human rights in practice. The analysis extends to monitoring conducted by a committee of the International Labour Organisation and by the Council of Europe’s Group of States against Corruption (GRECO), two bodies which do not usually attract the attention of human rights lawyers.
The UK’s monitoring commitments
The UK has ratified seven of the UN’s nine ‘core’ human rights treaties, as a result of which it has committed itself to be monitored by seven treaty bodies. Since the first such body began operating in 1970 (the Committee on the Elimination of Racial Discrimination) the UK had issued 54 national reports to them by the end of 2021. This is on top of its three UPR reports to the Human Rights Council and its annual reports to the International Labour Organisation on eight ‘fundamental’ Conventions dealing with a variety of workers’ rights.
The UK has also ratified eight Council of Europe human rights treaties and is monitored by five Council of Europe treaty bodies, to which it had submitted 57 reports by the end of 2021. The majority were considered by the European Committee of Social Rights, which began its monitoring in 1968 on a biannual basis but then moved to an annual appraisal in the late 1990s.
UN and Council of Europe approaches to monitoring
The UN mechanisms tend to require each State to submit a national report, in accordance with strict word limits. In most instances the issues to be focused on are notified to the State in advance. The State is then expected to send a delegation to a review meeting with committee members in Geneva. Increasingly these meetings concentrate on steps taken by the State to comply with the committee’s previous proposals. The committee’s concluding observations (also word limited) include recommendations and sometimes the State is required to submit a mid-term report prior to the next monitoring cycle.
The Council of Europe also tends to request national reports, but these are usually based on a pre-circulated questionnaire centred on whatever theme has been designated as the focus of that particular monitoring cycle. It does not see the need for word limits and, rather than asking state representatives to travel to Strasbourg for a dialogue, treaty body members often travel to the State to engage with a variety of stakeholders, including members of civil society organisations. The European Committee of Social Rights, however, relies purely on documents when conducting its monitoring and seems no less effective as a result.
Duplication of effort and delays
There are two striking features of the international monitoring system. The first is the overlap in the terms of reference of monitoring bodies. A topic such as race discrimination, for example, is monitored by no fewer than six UN bodies: the Human Rights Council, the Committee on the Elimination of Racial Discrimination, the Human Rights Committee, the Committee on Economic, Social and Cultural Rights, the Committee on the Rights of the Child and the Committee against Torture. Within Europe it is monitored by the European Committee of Social Rights, the Advisory Committee on the Framework Convention for the Protection of National Minorities and the Group of Experts on Action against Human Trafficking (GRETA). Despite this proliferation of monitors, it is rare to see any committee cross-referencing the work of others – although the practice seems to be changing within Council of Europe bodies. It would be sensible to adopt a lex specialis approach. This would mean that on any given topic the most specialised committee would be tasked with examining it in detail, leaving the other committees to focus on different issues.
The second point that stands out is the length of time it takes for a monitoring round to be completed. Often many years elapse between the submission of a national report and the issuing of a monitoring committee’s views on that report. Even the European Committee of Social Rights, which otherwise applies the most systematic and exacting scrutiny, produces conclusions that often relate to situations prevailing some six years earlier. As we know from the UN Secretary-General’s latest biennial report, the committees themselves, especially at the UN, are over-worked and under-resourced. For some reason they remain unwilling to increase their productivity by dividing themselves into smaller chambers.
UK reports and responses to recommendations
The UK is a State which tends to submit comprehensive reports on time, even if there is not always as much consultation with civil society organisations in the compiling of those reports as there should be. Only occasionally do the national reports cross-refer to what has been said in reports to cognate committees – the 2014 report to the UN Committee on Economic, Social and Cultural Rights constitutes a notable exception. More needs to be done by the UK to comply with the best reporting practices recommended by the UN.
Since 2000 the reports have increasingly referred to the human rights situation in the three devolved regions of the UK. The Scottish government contributes a lot of information, while the Northern Ireland Executive is often much less cooperative. Monitoring bodies understandably insist that it is the central UK government which remains responsible at the international level for human rights violations anywhere in the State, but in recent years some recommendations have been directly addressed to devolved governments too.
Generally speaking the UK responds to conclusions of monitoring committees by explaining what it has done to improve the defects identified. Judging whether these improvements are a consequence of the committees’ conclusions, or would have occurred in any event, is very difficult to establish. I have not seen any explicit statement by the UK government admitting that a change was made because of a monitoring committee’s recommendation. There can be no doubt, however, that the monitors’ constant snapping at the heels of the government has had a direct influence on its compliance record with international human rights standards.
Nevertheless, on some issues there is a stand-off between the government and the UN monitoring bodies. Although none of the UN human rights treaties obliges a Member State to incorporate the treaty into domestic law, the monitoring committees constantly assert that this should happen. The UK government frequently points out this contradiction and also retains some reservations to human rights treaties. Yet in its own approach to treaty ratification the government itself displays a contradictory approach. It refuses to ratify the International Convention on the Protection of All Migrant Workers and Members of their Families because it thinks domestic law already replicates the obligations it imposes, but it recently ratified the Istanbul Convention on Preventing and Combating Violence against Women and Domestic Violence precisely because it had recently brought domestic law into line with its requirements. In due course, therefore, GREVIO will become yet another treaty body monitoring the UK’s human rights record.
If it is difficult to pinpoint reforms that are directly attributable to the monitoring activities of UN and Council of Europe committees, we can at least credit an inquiry conducted by the UN Committee on the Elimination of Discrimination against Women with leading to the reform of abortion law in Northern Ireland. A statutory provision expressly mandated implementation of CEDAW’s recommendations. By way of contrast, an inquiry conducted by the UN Committee on the Rights of Persons with Disabilities into the effect of austerity measures on disabled people in the UK did little but provoke the ire of the government.
UK institutional engagement with monitors
Sadly, not many institutions within the UK pay close attention to the musings of treaty-monitoring bodies. Parliament and the courts pay virtually no heed, with even the Joint Committee on Human Rights having recently reduced the amount of time it devotes to them. It is largely left to the three national human rights institutions – the Equality and Human Rights Commission, the Scottish Human Rights Commission and the Northern Ireland Human Rights Commission – to engage in a meaningful way with the monitoring bodies by submitting shadow national reports, lobbying individual committee members, sending representatives to review meetings, publicising the committees’ concluding observations and scrutinising the UK’s implementation of recommendations. While the SHRC has been particularly engaged with some of the bodies in the past few years, over the course of the last two decades it has been the NIHRC which has been most consistent in its involvement.
In 2021 the Supreme Court made it clear that it did not view unincorporated human rights treaties as having any legal consequence in the UK. The views of monitoring bodies are likewise downplayed by the judiciary. This means that the burden falls on civil society organisations to keep the important work of monitoring bodies in the spotlight. While those bodies are rarely if ever going to be clear agents of change – unlike the European Court of Human Rights, for instance – they can still wield significant soft power. Their overall influence may be hard to quantify but it is definitely operative.
Brice Dickson, Emeritus Professor of International and Comparative Law, Queen’s University Belfast