22
Examination of witnesses
Dr Michael Lane, Professor Jon Yorke and Dr Alice Storey.
Q1 The Chair: Welcome to the 23rd meeting of the Joint Committee on Human Rights. Today we are going to be looking at the universal periodic review. Our committee is made up of six members of the House of Commons and six members of the House of Lords, all of whom have a deep knowledge of and passion for human rights and care about the application of human rights to residents and citizens of the United Kingdom. Last week, we published our legislative report on the new Border Security, Asylum and Immigration Bill. That report is now available online for any of those who are joining us for the hearing today. Please do see what we have to say about that and our recommendations. Committee consideration of that Bill, which has completed its House of Commons stages, will begin in the House of Lords tomorrow.
We have also published our similar legislative review into the Mental Health Bill, which is proceeding through its stages in the House of Commons, having completed its stages in the Lords. That contains a number of important recommendations. Along with Dr Peter Swallow, we had a meeting last week with Stephen Kinnock, the Minister who was involved with that Bill, who is taking our recommendations seriously. We are grateful to him and the Government for that.
There are current inquiries that have to be completed before Parliament rises on 24 July. So we are hoping to publish our report on supply chain transparency and modern day slavery, but also our report on transnational repression. But today we are looking, as I say, at the universal periodic review. What is it? It is the mechanism of the United Nations Human Rights Council, under which states’ human rights records are reviewed by other states at the council every four and a half years. Under the UPR, all countries are treated equally. So all 193 United Nations member states are reviewed by their peers for compliance with existing human rights obligations, and reviews take place during an interactive discussion between the state under review and other states, which can submit questions and comments or make recommendations to the state under review.
Before the review, Parliaments can contribute to the state’s report on the human rights situation in the country and encourage their Governments to host a broad consultation process. This committee, the Joint Committee on Human Rights, is pre-eminent in that process. During the review, they can participate in the interactive discussion, either as members of the government delegation or as observers. Last time around, in 2023, 27 Members of Parliament took part in the process. Perhaps most importantly of all, after the review, they were instrumental in making sure that the recommendations from the UPR were translated into national legislation, policies and budgetary action, and implemented at the national level. Those are all themes that will be explored by the committee today.
In their oversight function, Parliaments play a crucial role in ensuring that Governments implement the recommendations. So to help us explore these serious, important questions that cut to the heart of the work we do as a committee, we are joined today by three distinguished, eminent witnesses. They are Dr Michael Lane, who is a lecturer in law at the University of Worcester. His PhD thesis examined the United Kingdom’s engagement with the United Nations universal periodic review, offering a comprehensive review of the UK’s engagement with the mechanism and providing theoretical and empirical insights into the UPR’s impact.
We will also hear from Dr Alice Storey. She is associate professor of human rights and the lead on the UPR project at Birmingham City University. She is also associate director of the Birmingham City University Centre for Human Rights. She researches the UPR mechanism and how it can be strengthened, as well as state engagement with international human rights more generally, with a focus on women’s rights and capital punishment.
We will also hear from Professor Jon Yorke, who is professor of human rights in the School of Law and director of the Centre for Human Rights at Birmingham City University. His expertise is in international human rights law, and his current work focuses on the UPR and the filing of stakeholder reports in the Human Rights Council in Geneva.
We begin with a curtain-raising preliminary question before we get into the real detail. Can you give us an overview of the universal periodic review: what is it, how does it work, and are its recommendations actually legally binding on states?
Dr Alice Storey: Thank you very much, Chair and thank you to the committee for inviting us here today. Chair, you gave a wonderful overview of the UPR mechanism. It is a mechanism of the UN Human Rights Council, which reviews all 193 member states cyclically—so every four-and-a-half years. One of the most incredible achievements of the UPR is that, to date, it has received 100% co-operation from all 193 member states.
We have had three full cycles of review now. The UK has been reviewed four times. So there is a substantial amount of data and information that we can work from. As was said, it is state led. It is intended to be a peer-review mechanism—states reviewing states. We can see that is good for state engagement with the 100% co-operation rate. But it does involve other UN bodies and, importantly, civil society organisations as well. They can submit reports in advance of each state’s review. Importantly, those reports are seeking to inform the recommendations made by the other member states to the state under review. These recommendations, regarding human rights, broadly, are scrutinised one by one by the state under review, and it decides whether to support each recommendation, note it or partially support it.
There is an expectation that the supported recommendations are implemented in practice domestically. That domestic implementation is vital to the UPR’s impact, and it requires a wide range of entities to make that happen: the Government, parliamentarians and national human rights institutions, civil society organisations, etc. There have been concrete successes of the UPR all across the world. The fantastic organisation UPR Info works tirelessly to support human rights through the UPR, led by the fantastic Nicoletta Zappile, Mona M'Bikay and Gianni Magazzeni. They wrote a report in 2022 called Beyond Reporting that essentially set out the concrete impacts of the UPR, saying, “Look, it is not just something that we go to in Geneva and write reports on. This has an impact on human rights”. I will give a quick example from here in the UK. That report talked about how the UPR had some impact in Scotland, raising its age of criminal responsibility to 12. We can see something actually happening here.
I am going to hand over to Dr Lane to talk about the legal status of recommendations.
The Chair: As you do so, Dr Lane, can you also tell us what the implications are if someone does not do what they are told to do by the universal periodic review? Are there any consequences?
Dr Michael Lane: Thank you again, Chair, and the committee for having us. The starting point is to accept that recommendations when they are made, even when they are supported by the states, do not create any international obligations on the state. What this means is that if a state fails to implement any recommendation, there are no international legal consequences. The consequence, therefore, of not implementing a recommendation is, if you like, political or diplomatic, perhaps. We may come on to it later but some of what we see is recommendations being taken up by domestic actors like yourselves here, the committee, other parliamentarians and civil society, and using those recommendations to essentially leverage their claims.
All that said, it is wrong to assume that, simply because recommendations are not made by a law-making authority like a legislature—the UPR is not akin to a court—all the recommendations have zero legal significance whatever. Perhaps I may give four examples of ways in which we are seeing how recommendations could have legal significance, and are.
In the first example, the committee may be familiar with this kind of customary international law and how it is identified. Usually, we look at state practice and what is called the opinio juris. There is some good research by a colleague of mine, Dr Frederick Cowell, who has shown how we can use the UPR recommendations to essentially identify custom. The UPR being the only human rights body with 100% participation, as Dr Storey said, it is a useful forum to identify whether any international norms are emerging.
The second example in the UK was the Supreme Court case of Al-Waheed against the Ministry of Defence. There, Lord Reed uses a UPR recommendation to inform his opinion about whether the European Convention on Human Rights had extraterritorial application. The recommendation in question was from Switzerland to the UK, essentially saying that the ECHR has extraterritorial application, and the UK accepted that. Lord Reed argued that this was essentially informing the interpretation of that treaty. That was the state party’s agreed interpretation.
The third example is whereby we see courts and tribunals increasingly using recommendations of other states to inform their opinion of whether there is a risk that if a migrant is removed from the UK, they would face the risk of persecution. You might look at the Rwanda case, for instance, or AAA v the Secretary of State, where the court referred to a UPR recommendation from the UK to Rwanda, whereby the UK criticised Rwanda for “extrajudicial killings, deaths in custody, enforced disappearances and torture”. The court used that to inform its opinion that if you remove these migrants to Rwanda, they are going to suffer such treatment.
Finally—then I will end my points—although we have not seen it yet, it is not unforeseeable that a recommendation could create a legitimate expectation. This is the idea that if a state accepts or, rather, supports a recommendation, that may create essentially a promise to citizens that they could enforce domestically. This is, I suppose, a theoretical point in the sense that we have not seen this yet. Nor do I think that any of the UK’s recommendations meet the kind of threshold that is necessary for a legitimate expectation, because what we need is a very specific recommendation and support from the state that is essentially unconditional. We have not seen that across any of the UK’s recommendations.
Q2 The Chair: So it is not just a paper tiger. Professor Yorke, would you like to add to these preliminary remarks before we turn to Sir Desmond?
Professor Jon Yorke: I look at it from the perspective of a constitutional conversation, because it is a conversation in Geneva that the state under review is having with the states that are making the recommendations during the review. When you as a committee look at the recommendations and what our Government supported, noted or partially supported, you use that as a tool for your work. So when other Governments speak to our Government about the different human rights issues raised, it allows you to use that language of other Governments to therefore add greater sophistication to your engagement with the Bill under scrutiny, or with the actions of our Government.
The other thing about the language of recommendations when you review them here in Westminster is that they were given to a Government who have now changed. So the past review was of the previous Government. Now we have a new Government and the language of the recommendations also allows you to have a new lens to review what the previous Government noted and supported. That adds more sophistication to your analysis. I would say that this is the soft law approach; Michael outlined the hard law approaches.
The Chair: Baroness Lawrence would like to chip in now. I think we are going to come to her after Sir Desmond but, rather than losing the point, let us just hear her.
Baroness Lawrence of Clarendon: Following on from what Dr Lane was saying and then Professor Yorke, when the discussion was happening in in Geneva and the stuff around Rwanda was said to the UK Government, what year was that?
Professor Jon Yorke: 2022.
Baroness Lawrence of Clarendon: In that time, the Government were insisting that Rwanda was safe for us to—
Professor Jon Yorke: This is an interesting question, because we were invited to give our stakeholder report for the United Kingdom’s pre-session, and it was actually an intersessional event. We raised this specifically during our pre-session report. Governments picked up on that and then made the recommendations that you know within our review.
Dr Michael Lane: Baroness Lawrence, were you referring to the recommendation that the UK made to Rwanda? Was that correct in the Rwanda case?
Baroness Lawrence of Clarendon: Yes, within the discussion about what was happening in Rwanda at the time. That is why I was asking about when that discussion was happening. Because after that, the previous Government said that Rwanda was a safe country.
Professor Jon Yorke: Yes. During the pre-session when the British Government were making the statement, they basically said that the policy was sound within the Human Rights Act. We were raising our concerns that it was not the case.
The Chair: That is a helpful clarification. We do not need to explore that issue again.
Lord Murray of Blidworth: I disagree.
The Chair: Lord Murray, who was a Minister at the time will, no doubt, want to come back to that as we proceed. Sir Desmond has been very patient, so let us come to him now.
Sir Desmond Swayne: Thank you, Chair. Before I move on to civil society, I will ask a supplementary on the back of your question.
You will recall, of course, the shenanigans in 2015, when the United Kingdom and Saudi Arabia, of all nations, colluded to get both of them on to the council. The council’s current membership is Algeria, Benin, Burundi, Cote d’Ivoire, Cyprus, Democratic Republic of Congo—for heaven’s sake—Ethiopia, Gambia, Kenya, Kuwait, Maldives, Marshall Islands, Morocco, Qatar, South Africa, Sudan, Thailand and Vietnam. It is almost a joke. To what extent does the make-up of the council taint or even infect the process of the UPR?
Professor Jon Yorke: I would argue that it does not, because the review itself is taken up by a troika, which is committed. It is not the make-up of the Human Rights Council that is therefore reviewing the universal periodic review. This is a mechanism of the Human Rights Council but separate from the make-up you have just outlined. I would not make any comment on the make-up.
Sir Desmond Swayne: Who chooses the troika?
Professor Jon Yorke: It is randomised and not the list of countries that you just outlined. It is a randomised three-country review, which acts as the secretariat of the review. As regards, the concerns that you have just raised, that is why it is a universal periodic review. The voices of those Governments can be heard but then the voices of other Governments can be heard also. Then we can receive a balanced perspective.
Sir Desmond Swayne: Why are countries so keen to get on to the council, as we and Saudi Arabia were? What does the council do?
Professor Jon Yorke: The Human Rights Council, in its normative work, acts as a legislative body that therefore produces resolutions on different human rights topics. It engages with the universal periodic review.
Sir Desmond Swayne: In what way?
Professor Jon Yorke: No—sorry: it creates the universal periodic review and the UN expert mechanisms, which are the special procedures mechanisms, the independent experts, the special rapporteurs. The council is the main human rights body of the United Nations.
Sir Desmond Swayne: It creates the universal periodic review, and you say that, in creating it, it does not taint or infect it?
Dr Michael Lane: If I may, Jon, I was going to point out that one of the rationales for the universal periodic review and, indeed, the UN Human Rights Council was to combat some of the criticisms of the previous institution, which it replaced, the Commission on Human Rights. One of the issues with the commission was that it was deemed to be too selective: it was focusing on human rights issues in certain parts of the world but not others. One of the rationales for the UPR was that, if this is a universal mechanism where all states take part, it removes that selectivity because, if I may, underlying the kind of the criticism that you point out is the fact that some states may have worse human rights records than others.
Sir Desmond Swayne: Just a bit.
Dr Michael Lane: Yes, but that is to say that all UN member states have work to do, and the UPR provides that space where we can, if you like, “share best practice”, which are the words used in the resolution that creates the mechanism. There is this idea that, if we look back to the UN charter and the whole rationale of the United Nations, it is about co-operation and states working together. All these ideas underpin the UPR process. Whatever concerns we may have about the UN Human Rights Council and its membership could be applied to any human rights body, or any other international body for that matter, because they are made up of states.
Q3 Sir Desmond Swayne: Moving away from the states, how do civil society organisations and human rights institutions engage with the UPR process?
Professor Jon Yorke: I shall start off with our own Equality and Human Rights Commission. Under the implementing resolution 5/1 and subsequent UNGA and Human Rights Council resolutions, it makes a specific reference to the role of civil society as the voice of victims and their participation in the process. It is important that their voices are heard, and the UPR is a very important mechanism that provides a voice for people who are victims. Civil society can be mobilised and therefore present stakeholder reports and participate in the process, if they attend the pre-sessions. It is a way for them to voice the concerns that they have about the Governments that they are under.
The Equality and Human Rights Commission created a project in 2022 called universal periodic review 2022—UK Civil Society Engagement. During this project, we were able to have a session to train civil society to engage with the UK’s UPR. We also had a session with UNA in the UK here in Parliament to have a conversation on how parliamentarians can engage with civil society. We then had a session with the legal profession at Mountford Chambers, with Mr Chris Henley KC. He very graciously allowed us to have a session at his chambers with the Law Society. Members of the Bar attended, and it was a way for the lawyers to engage with civil society as well. At different levels, civil society can engage with the UPR, and it creates great opportunity for them to voice their concerns. We have specific projects on that, which Alice has led on.
Dr Alice Storey: I recently conducted a study with civil society organisations and national human rights institutions that engage with the UPR globally called Empowering Civil Society Organisations at the UPR. There were lots of findings, but there is one example that came out of that project that it may be important for the Committee to consider. One UK-based civil society organisation participated in this, and it expressed its unease with how the previous Government had engaged with civil society organisations on its cycle 4 UPR in late 2022 to early 2023, in the sense that they were not particularly transparent. I think they said it was a bit of a “tap on the shoulder” approach. This came out in the conference that Jon mentioned in relation to the funding that we had. When we spoke to other civil society organisations that came along, they agreed: they had not heard that the Government were contacting civil society organisations. We can compare this with the UK’s cycle 2 UPR from 2012: the Government led multiple events for civil society organisations and national human rights institutions, and these were publicised on web pages, et cetera. It has to be underscored here that, according to those founding principles of the UPR that we have been mentioning, Governments should be engaging with civil society organisations and national human rights institutions before and after the UPR. Of course, it is also helpful for parliamentarians to be involved. Inviting us here today is exactly one example of that.
Sir Desmond Swayne: How would that work in an authoritarian state, where civil society is effectively a front for the authoritarian state?
Dr Alice Storey: You are right that there are, of course, examples of countries where civil society is restricted. Usually, domestic civil society organisations will look outside to international organisations that can write reports. The UPR project at BCU is an example of this. We have submitted 50 reports to 47 different countries, and we do that in a supportive way for civil society organisations that perhaps may feel in danger if they write reports like this. That is one way that we support them in practice.
Professor Jon Yorke: To give an example from Sudan, in the cycle 3 review, President Bashir revoked all the visas of civil society coming from Khartoum. We were there, supporting one human rights organisation; because we were there, we could therefore allow a suspension of the sessions for appropriate consideration of the evidence, had those people been there. In authoritarian regimes, there are still ways around, with the global connectivity of civil society, to help one another in those difficult countries.
Sir Desmond Swayne: In our democratic environment, how fair is it to say that those who step forward to engage are self-selected—that they are people with time and an agenda to make their voices heard? We used to describe them, at university, when we were dealing with the NUS, as “the democracy of the committed”: those who had the time and energy to sit up late at night for all those votes and that sort of thing. How balanced is the process?
Dr Michael Lane: Is the question in relation to how the UPR, if you like, ensure that the civil society organisations—
Sir Desmond Swayne: The voices you hear are the voices that want to be heard. How do you come to a balanced judgment?
Dr Michael Lane: It is country by country, of course, but one of the things that is quite useful and important about the UPR is how easy, practically, it is for essentially anyone—civil society organisations or individuals—to submit to it. You need an internet connection, and that is really it. The stakeholder reports that get submitted have a certain word limit and things like this, but they can be presented in whatever format and can relate to any human rights issue whatever, because the universal periodic review covers all human rights. If we are focusing on the UPR specifically, does it ensure that civil society is represented across the board? In terms of its format and modalities, I would say that it does.
The Chair: As we proceed, we will probably want to go deeper into some of these questions, because Sir Desmond raises a concern that many have: sometimes, the watchdog and burglar seem to be rather closely identified with one another. What difference are we making in those kind of regimes? There will be questions on that, but I am anxious that we should go back to Baroness Lawrence to talk about what we are doing in the UK.
Q4 Baroness Lawrence of Clarendon: To what extent have the UK Government historically engaged with the UPR process in making and implementing recommendations?
Dr Michael Lane: We will probably come on to talk specifically about the current cycle in more depth, but, if I may, I can cover the previous cycles, if that would be helpful. We can look at the UK again, because it is a state-led mechanism, as a reviewee as a state under review and as a reviewer of other countries. In terms of the former, as a state under review, across the previous three cycles to date, there are some themes that we might pull out.
Notwithstanding some of the concerns that the participants in Dr Storey’s research raised, the UK has always engaged to some extent with civil society and stakeholders. In the national report—which the state submits on behalf of itself—the UK has constantly reiterated its commitment to the UPR, to influence human rights usually both at home and abroad. The UK at the review in Geneva always sends a ministerial delegation, usually supported by a number of senior civil servants. They generally engage with the process in a pragmatic and appropriate way. In terms of some of the consistent issues that we see and have seen again in the fourth cycle, one of the problems, if we compare it to other states, is the consistently low rate of supporting recommendations. That is, the UK has consistently across the three previous cycles and the fourth had a lower rate of accepting recommendations compared with other European states.
That raises a question of why and what particular recommendations are the UK not particularly receptive to. We can maybe talk about that later. Certain themes of recommendations have always faced a level of resistance and are not supported. So the UK often receives quite a number of recommendations around its treaty obligations to consider ratifying treaties that are not ratified or to further implement those treaties in domestic law. Those recommendations are among the most that the UK receives but are among the most that the UK notes and does not support.
Finally, I will touch upon implementation. With regard to the first cycle, when the UK was reviewed in 2008, between then and 2012—the next review—research conducted by UPR Info found that the UK had implemented 55% of the recommendations. In the following cycle, a report was released by the British Institute of Human Rights, which brought together a number of civil society organisations to do a joint survey of implementation. For that second cycle, it found that the UK had implemented fully—the terminology used was that the UK had “met”—only 4.5% of the recommendations. The report found that 42.5% had received some action but 53% had not been implemented to any extent. For the third cycle and the current cycle, which is ongoing, we do not have much data around implementation. We might talk about the difficulties practically of researching implementation. That is hard because of various factors. But the two first-cycle reviews by the UK gives you a sense of where it is, at the very least.
Baroness Lawrence of Clarendon: It was somewhere out there and has gone somewhere down now, basically.
Professor Jon Yorke: That is what the data suggests.
The Chair: It would be helpful in taking Baroness Lawrence’s question further, as and when more data does become available, if you could share that in writing with the committee. It would be appreciated.
Professor Jon Yorke: Absolutely.
Q5 Lord Murray of Blidworth: I want to ask you some questions about the fourth UPR cycle. Obviously, it is available on the internet on the Human Rights Council web page as to who engaged with the review. One can see, going back to the questions asked by Sir Desmond a moment ago, that many of the civil society responses were provided by campaigning groups. You will probably accept that the tenor of the campaigning groups was that they were on the left of the political spectrum. Is there a result that the UPR would therefore tend to be reflective of the views that it hears from its people who have replied to the call for evidence during the UPR process?
Dr Alice Storey: I can take this. Thank you, Lord Murray. The issue, at least when I was speaking to civil society organisations who engaged with the UK’s UPR was that only small select groups were contacted by the Government. Perhaps they shared this with other organisations. But we as the UPR project at BCU also submitted two reports to the UK’s UPR. We were active around that through the Equality and Human Rights Council funding. But we were not contacted. So we do not really know how the Government decided which civil society organisations would, and perhaps would not, be contacted. It is difficult to answer. I do not know.
Lord Murray of Blidworth: Can organisations of their own volition submit contributions to the review process?
Dr Alice Storey: Yes. As Dr Lane said, organisations can submit reports in advance of the review. Something that the UN’s Office of the High Commissioner for Human Rights says must be credible and reliable information, and, if it is not credible and reliable, it will not include that information in its summary reports. It will be disregarded by the UN. Yet any organisation can get involved, particularly at that early stage.
Professor Jon Yorke: The value of the universal periodic review is that it is open to everybody. If there are, as you say, Lord Murray, more on the left that are submitting, it is not that those who would perhaps be on the political right cannot submit—they absolutely can. It is an open facility for them all.
Lord Murray of Blidworth: Indeed. To what extent do you think the decision-makers considering the evidence account for differences of policy? For example, one of the submissions made to the fourth review was on detention action. It had a firm position that there should be no immigration detention longer than 28 days. That came out as one of the recommendations in the review, did it not? That cannot be said to be the only view you could reach on a human rights basis. Clearly, there would be a range of views. To what extent is it right to say that the way in which the review process works at the moment is flawed and does not build in a way of getting out of that echo chamber?
Professor Jon Yorke: That is the thing—it is designed not be an echo chamber, not to produce silos. It is designed to have a transparent multi perspective or dialogue. Therefore, if there are people who would say, “28 days is too short, let us submit a UPR report. Let’s make our case factually about why it should be extended”, there is absolutely no reason why nobody could not do that. With regards to the balanced approach, the working group of the UPR, which collates the report, will read all the stakeholder submissions, however many there are, and then give a summary of all the issues—not a value judgment but a summary of the factual issues. If there were reports saying that the 28 days should be extended, they would also be included alongside the 28-day position. Then it is for the Governments themselves to pick up. They make the recommendations. That is why it is a wonderful facility for a dialogue.
Lord Murray of Blidworth: But it is not that wonderful, is it? We come back to Sir Desmond’s point about it being a democracy of the committed. The fact that there were no submissions from people who have contrary views meant that they assumed that that was the case.
Dr Michael Lane: I think it comes back to Professor Yorke’s point. They can submit contrary points, and the fact that, for that particular issue, there were no contrary points, I do not think—
Lord Murray of Blidworth: I am not sure that that is a satisfactory answer, but there it is.
The Chair: Except that democracy is about the willingness of people to take part, and it is open to anybody to make these submissions. That is the gist of the answers that we have been given so far. Just to help the committee—maybe you said this but I may have missed it—in the last review, how many organisations in total made submissions, and if not organisations then individuals? If you do not have the numbers we can get them.
Professor Jon Yorke: We can probably get the number.
Dr Michael Lane: Sorry, just to clarify the question, is this just with respect to the UK’s figures?
The Chair: Yes, just the UK. I want to pick up on the thought that only certain groups are participating and, in a way, you are challenging others to do the same—if they feel strongly about these things they should take part. It would be helpful for us to know how many did.
Dr Alice Storey: There were 71 stakeholder submissions. Civil society organisations are referred to as stakeholders within the UPR process. There were 71 in the last UPR at the fourth cycle. As Professor Yorke said, they were summarised by the UN Office of the High Commissioner for Human Rights. It does not create value judgments. You are absolutely right. We would encourage as many human rights organisations as possible to get involved with this process.
The Chair: Hopefully your evidence today will encourage that.
Q6 Afzal Khan: How many recommendations were made at the end of the review? How many were accepted, partially accepted or noted by the Government?
Professor Jon Yorke: There were 302 recommendations made, and we accepted 135. That is consistent with our low percentage throughout the previous cycles. For various reasons, 16% were partially accepted—we will go into the statistics and give you the themes that were affirmed under the sustainable development goals. When the recommendations are made, they are grouped under the 16 SDGs. We can see that, for our review, we supported 18% provided under international instruments, 20% for the rights of the child, 57% on racial discrimination, 69% on women’s rights and 37% on labour rights.
The average is a lot higher: under international instruments, the average for the third cycle was 50% and in the European Union was 61%; ours was only 18%. You can see the disparity there. Rights of the child had 84% global acceptance, with 76% in the EU and only 20% by the UK Government. On racial discrimination, the global average is 79%, acceptance in the European Union is 87%, and we accepted 57%. The women’s rights global average is 86% of acceptance of recommendations, supported recommendations in the European Union is 88%, and ours was 69%. For labour rights, the global support is 61% and the European Union is 51%, and our percentage is 37%. All these statistics are in our briefing on the fourth cycle, which is on our website. We can send you the link, Chair, for that.
Afzal Khan: To follow on from that, did the Government provide reasons for not fully accepting the recommendations?
Dr Michael Lane: Thank you for the question. For the majority of the recommendations, whether supported or noted, it should be said that the UK provided some substantive reasoning. If we look at all the previous cycles, the UK has always done this for every single recommendation. With this cycle, however, this was the first time that—if I may get the statistics right—158 of the UK recommendations, some supported and some noted, were not accompanied by any reasoning at all. That probably equates to about half.
The Chair: That is interesting. Thank you.
Q7 Lord Sewell of Sanderstead: I want to ask you about the recommendations and their accuracy. In the summary, you have some on education and some on violence against women and girls—I think you have that paper. This leads to another question. I just want some clarification here. It is stated that the attainment gap for disadvantaged pupils from low socioeconomic backgrounds in Britain increased in 2019, but it goes on to say that we should also look at the protected characteristics groups. That is the recommendation. The tension there—and, I would say, the contradiction—is that there is only one group in this country at the moment that is suffering from that attainment gap. It is not those with protected characteristics: it is the majority-white, lower-income group. It seems to me that there is a sort of tension in the accuracy of that. It is not clear.
Here is another example. On violence against women and girls, in light of our recent grooming gangs thing, there is every other group—disabled and ethnic-minority women and girls, and long-term funding for LGBT victims—but nothing about that particular group in those northern towns, et cetera. It seems to me that there is this sort of sense—I wonder whether it is linked to the activists’ ability to influence and whether we are really getting to what is, in a sense, a human rights thing—that a group is missing here; there is a gap. I just wanted to know if you want to comment on that.
Dr Alice Storey: Thank you for the question. This speaks to the mechanism. I understand the point about the specific group, but, of course, every country that makes recommendations decides itself how it will create this recommendation, be it from the national report of the United Kingdom, from the report compiled from UN bodies, from civil society organisations, or from advocacy that takes place in Geneva. This goes to also speak to the idea that this is a co-operative mechanism. If the UK disagrees with a recommendation, as we have heard from the statistics, it can note that recommendation: it can say, “We do not agree with this”. Certainly, the last Government said in the fourth cycle that they disagreed with this recommendation.
It will partly be related to a lack of information about a certain group, and that has not filtered into those recommendations. Also, each individual member state of the UN has the autonomy to make whatever recommendation it wants. You can read through them all and see the differing perspectives of different Governments, et cetera. For example, I do not think we quite mentioned the following. Baroness Lawrence asked the question about how the UK engages with the UPR. In the first three cycles of all countries’ UPRs, the UK made over 1,500 recommendations. The UK is also doing the same thing: trying to gather information about other countries to make recommendations to them. I personally cannot speak to the specific point of why that group was left out of these attainment gap recommendations, but I do think we have to remember that it is up to these countries what recommendations they make.
Lord Sewell of Sanderstead: It comes back to what Sir Desmond and Lord Murray were implying: is there something here about the ability of activist groups to speak on behalf of those people? That, in a sense, taints some of the things we have here. Let us be honest: that group should really be glaring out here from the UK—not even that, but the whole notion of a group being the worst achieving in the country. It then just jumps across to ethnic minorities, which are actually doing very well at the moment, particularly in London.
Dr Michael Lane: Maybe this comes to something that we have perhaps not touched on yet: some of the flaws of having a human rights system that is universal, in the sense that the UK—and every state—gets reviewed every four and a half years. The review takes three and a half or four hours. There is only so much time, I suppose, for these issues to get raised in the formal working group process. To reiterate what Dr Storey said, this will be effective. The recommendations that a state chooses to make will be affected by a number of different considerations. One of those would be its own foreign affairs policies, which may influence the recommendations that it makes, in this case to the UK.
A lot of it comes back to this: in my view, if there is an issue here about certain civil society organisations, groups or individuals not having a voice at the UPR, I do not believe that it is because of the way that the process is set up. I think this comes down a lot of the work that my two colleagues here do through their UPR project—it is about bringing this mechanism to those groups and those individuals and saying, “Look, this is here for you. You can use it, and here is how you use it”. There is an ongoing process of capacity building in introducing this process to, in this case, civil society groups in the UK, but, in my view, there is nothing about the process or the modalities that would stop these queries that you have raised.
Lord Sewell of Sanderstead: I do not want to go on, and I am sorry to do so—I know my time is up—but here is what I am taking from this. You are really talking about the voice of the voiceless when you talk about human rights, are you not? That happened for a long time for black groups, and now we have moved to another group, and we have taken a long time to extract that. My sense of the index is that there is a flaw here, in the sense that we cannot seem to get that voice of the voiceless out in a way that is effective, and that is why it gets hidden in this.
Professor Jon Yorke: On the voice of the voiceless, we need to differentiate between a modality that prevents the voice from being heard and a modality that allows the voice to be heard but where the voice has not raised itself properly. If you as a committee feel that there is a section of society that has not been reflected in our previous universal periodic reviews, there is absolutely no reason why you cannot engage with civil society organisations, maybe APPGs, and therefore raise the concerns that you have made. I think we have to differentiate between a United Nations process that prevents voices and a United Nations process that allows all voices. The UPR is the latter, not the former. There is no kind of trickery and no obstacles to prevent different sections of society; it is quite the opposite, actually.
Lord Sewell of Sanderstead: I disagree with that.
The Chair: Let us leave this for the moment. I think there is a common theme in some of the questions: there are groups that clearly feel that they are excluded in some way from this process, and there must be better ways of encouraging them to engage. In the wonderful work that you do at your centre in Birmingham, perhaps you can engage individually with Lord Sewell afterwards about how these sometimes underrepresented groups are represented. I have not lost sight of my two colleagues who are trying to come in with supplementaries.
Q8 Alex Sobel: The five most prominent areas for recommendations in the fourth cycle for the UK were international instruments, rights of the child, racial integration, discrimination, women’s rights and labour rights. Do you want to provide an overview of the substance of those recommendations?
Dr Michael Lane: I can probably make a start on the first of those categories. The category of international instruments encompasses those recommendations that call upon the UK in some way to modify, in many cases, its treaty obligations. In cycle 4, the last cycle, 23% of the recommendations the UK received were on this; 35 of these, which was the majority, were recommendations calling on the UK to sign or ratify, or consider signing or ratifying, additional treaties. The UK has ratified seven of the nine core UN treaties; the two that it has not signed or ratified are the Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, and the convention on enforced disappearance. Many of those recommendations are calling upon the UK to ratify those. Additionally, with these core UN treaties, there are what is known as optional protocols. When states are signed to them, citizens in their countries can essentially petition to these convention committees. It is a sort of quasi-judicial process—a hearing, if you like. The UK receives many of these recommendations calling upon it to ratify those outstanding optional protocols. That is the largest group of those.
Secondly, 10 recommendations at the last cycle were calling upon the UK to, in some way, take steps to enhance or maintain compliance with its existing treaty obligations. Those recommendations might be along the lines of, “Continue to ensure compliance with the International Covenant on Civil and Political Rights”.
Finally, five recommendations that the UK received were requesting that it withdrew, or considered withdrawing, reservations or declarations to treaties that it has ratified. These are against the international convention on racial discrimination, the Istanbul convention, the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination Against Women. The UK has reservations or declarations against these treaties, and five recommendations it received called upon it to remove or modify those in some way.
Alex Sobel: That has triggered two follow-up questions, which I ask together for time. First, you talked about international treaty obligations. Would the UPR also look at obligations under the ECHR—for instance, protocol 12, which the UK has neither signed nor ratified—or would it not, because it is a European convention? Secondly, the sixth and eighth most prominent recommendations were around migrants and asylum seekers, and the 12th was around sexual orientation and gender identity. This makes me think about our latest committee inquiry report around the migration Bill. This is maybe a slightly tangential question, but would the UK use UPRs of other countries to work out whether those were safe countries or not for those groups?
Dr Michael Lane: On the first question on whether the UPR can cover, if you like, the regional system, the short answer is yes, it can. What underpins the review are the existing international obligations of the state. Of course, for the UK, that includes the European convention. There is nothing stopping a state recommending to the UK that it adopts the protocol that you mentioned. I do not know whether a state has previously, but it can do so if it wishes.
With respect to your second question on whether the UK Government do or can use other states’ recommendations to form an opinion, you are getting at non-refoulement and removing migrants to other countries. I have no idea whether it does—but could it, in the sense that have we seen that in other forums? The answer is yes. We see that courts and tribunals are using recommendations of other countries to form their own opinion on those questions.
Q9 Lord Dholakia: I bring up the issue of monitoring the UK’s UPRs. What are the mechanisms that exist to do this? Secondly, are there any changes necessary in this respect?
Dr Michael Lane: I can speak very briefly on what the Government do to monitor them, and my colleagues Dr Storey and Professor Yorke might touch on the other mechanisms. My knowledge on this was informed by a session that the committee conducted last year, I think, with the then Human Rights Minister Lord Bellamy and Rob Linham from the Ministry of Justice. At that session, and in a follow-up document that I think was sent to the committee, it was explained that there is no central monitor, body or mechanism in government that essentially overlooks all UPR recommendations—or recommendations of any other UN body, for that matter. To kind of flesh out why that is the case, Lord Bellamy explained at that session that “awareness of human rights obligations across government and across departments is pretty high in this country, due not least to the work of committees like this and to our very active NGOs and other organisations”. He is explaining here that there is no watchdog in government that points a finger if a given department has not taken or implemented a given recommendation. It is more what I think Rob Linham referred to in that session as a mainstreaming approach, where, essentially, they can come to the Ministry of Justice for advice, but it does not provide advice on what particular policies should be, even with respect to UPR recommendations.
We may touch upon it later. But it might just be worth mentioning now that the Government have been called upon by non-governmental organisations—I know the Equality and Human Rights Commission has requested this, and the UK received a letter after its fourth cycle from the Office of the High Commissioner on Human Rights—all of them encouraging the Government to change this approach and to have a more centralised one. The Government’s feeling was that this would—I can quote Lord Bellamy—be “administrative clutter”. He explains that we have the, “deeply rooted concept of collective responsibility, which also enables us to co-ordinate and co-operate very effectively across departments”. So that is the current position, which was as of last year. Whether things have changed since then, I cannot say.
The Chair: Ministers have changed but it was wise advice that the committee was given at that time by Lord Bellamy.
Q10 Peter Swallow: At slight risk of agreeing with Lord Sewell, I wanted to raise some recommendations from one of the countries involved in our review—China. It recommended that we “Eliminate Islamophobia and combat religious discrimination and intolerance”. It suggested we “Investigate ill-treatment and misuse of force in detention facilities and promote accountability”. It has suggested that we “Immediately lift unilateral coercive measures against developing countries” and “Stop interfering in the internal affairs of other countries under the pretext of human rights”. It is fairly clear why I have raised these particular cases but I do so to highlight a broader point. Is it fair to say that the UPR mechanism is not perfect, which is to say that there are clear issues with encouraging peer review of other countries where, frankly, human rights are of much less significant concern? Given that, I guess my point would be: while accepting those limitations and deep flaws and, at times, utter frustration one must feel to have China of all countries suggesting we tackle Islamophobia, given that this Parliament has rightly condemned it for committing genocide against the Uigur people, do we nevertheless have something to learn from this process when taken as a whole, and not just cherry-pick particular recommendations which we may or may not find helpful?
Dr Michael Lane: My short answer would be yes. We should recognise that it has flaws. I do not want to speak on behalf of my colleagues but my personal view is that, yes, the UPR is imperfect. It is perhaps very imperfect. You allude to some examples. There are more. It is a politicised process, at the end of the day. It is state led. But it comes back to something that I said earlier about this being an international mechanism. All state-led forums suffer from these problems. Does that mean to say that we should say this is useless, we should ignore it, forget about it or not engage with it? The short answer is no. We have already talked about some promises from the UPR. We can talk about more. Just because it is politicised does not mean that it is useless. Just because recommendations are made by states that may be contradictory of their own human rights situations does not undermine the whole process. We may have highlighted some examples of problems already, and they are valid. But there is vast literature and research showing how the UPR is effective while being imperfect. That would be my position.
The Chair: Dr Storey. Perfection?
Dr Alice Storey: It is definitely not perfection. That is partly because the work we do is both research-based but practical as well. Certainly, my work says this is not a perfect mechanism. A lot of the work that we are doing is to strengthen and improve that mechanism on the international level. But some recommendations are purely political. You see this in every single UPR. The UK is not alone in that. Sometimes, as Dr Lane said, there are countries making recommendations that they probably receive in themselves. But in the vast majority of times, what they are saying is true. It should be considered.
Peter Swallow: But we do have a challenge with Islamophobia in this country. The fact that China has raised it does not make it none the less true. The fact that China has vastly more significant challenges with Islamophobia is by the bye. To expand on this further, the other benefit of us being part of this system, of course, is that we are then making recommendations to other countries.
Dr Alice Storey: Absolutely.
The Chair: As to pointing out the contradictions, Professor Yorke?
Professor Jon Yorke: The UPR, like any other facility of the United Nations, is only as good as the people in it. Also, it is only as good as the competence of those people who review it. Actually, Dr Swallow, your interaction there with Alice hits the point. We have to differentiate between who makes a recommendation and what is recommended. We have to be mature enough to sometimes differentiate the politics from the content. If we can do that, the UPR will be much more successful. As this committee has a more sophisticated approach to the UPR, you can apply that interpretive methodology to it. It is about using what is beneficial to try to achieve our goals under the UN charter—to preserve a world of human rights but also, under Article 2, to preserve our sovereignty. On that, I would argue that the UPR is part of our sovereignty because it is part of the correct articulation of not only our national law but the standing of the United Kingdom in the international community. The more we get to know the UPR and the more we learn how to utilise it effectively, the better our sovereignty will be as well.
Sir Desmond Swayne: I was going to make exactly the same point, although I might have reached a different conclusion.
The Chair: I thought Dr Swallow was in danger not only of agreeing with what Lord Sewell said but agreeing with you too.
Peter Swallow: That is happening far too much recently.
The Chair: I think we are all getting very worried about this.
Q11 Lord Murray of Blidworth: I want to discuss implementation of recommendations. We know that in the last review there were 331 recommendations. The Government supported 135 and partially supported 55. When we had Lord Bellamy here, he said that the Government’s response to the UPR periodic review process “is exemplary, actually. People will not always agree with us, of course, because there are all kinds of interest groups, NGOs and other people who will always complain about something, but on the whole it is taken very seriously in this country and we are in relatively good standing compared with most countries”. Does the panel agree with Lord Bellamy that that is right, that our standing is high?
Dr Michael Lane: Thank you, Lord Murray, for your questions. The starting point is to accept, as I illustrated earlier, that the UK’s engagement with the process, what happens beforehand and in Geneva—well, I perhaps would not go so far as to say that it was exemplary. I might disagree with Lord Bellamy but it is good. The problem, which gets to the root of your question, is with implementation. What happens afterwards? I gave some statistics earlier from the first and second cycle. In the first cycle we saw that in the region of 50% of recommendations were considered in the research to be fully implemented. In the second cycle, that number seemed to drastically drop. Part of the reason could be that, in the first cycle, the UK received only 28 recommendations. As the UPR process has evolved, states are receiving quite a number more. There could be something to say that that drop in the statistics could simply be a result of so many recommendations.
In respect of certain themes that we could tease out, there are certain recommendations that, cycle on cycle, have never been implemented. That is, in fairness, often because the UK did not support them in the first place, so you might wonder, “Of course it has not implemented them”. An example is the one I touched upon earlier on international instruments.
Lord Murray of Blidworth: I want to focus on our implementation of recommendations which we have supported.
Dr Alice Storey: I can give a thematic example of this. My own work focuses on violence against women and girls. Of 39 recommendations in the women’s rights category, 18 were on violence against women and girls. Of those, 12 were supported and five were partially supported. One of the issues raised within that by multiple countries, including Iceland, Mexico and Spain, was the reservation to Article 59 of the Istanbul convention relating to protecting migrant women from domestic abuse. This has been a recurring theme: it has been raised consistently by civil society organisations, academics, practitioners and the Domestic Abuse Commissioner—I could go on.
Lord Murray of Blidworth: Yes, and it is raised frequently in the House of Lords.
Dr Alice Storey: Yes, and, of course, you had your own inquiry in this committee too. These countries were asking to basically remove that reservation from Article 59. The answer the previous Government and, in fact, the current Government gave in the House of Lords when this was discussed in November last year was that they were waiting for the findings of the Support for Migrant Victims scheme to be reviewed. The problem with that is that the pilot ended in August 2023, yet this reservation is still not being lifted. There are migrant women who are, unfortunately, staying with their abuser because they are worried about their immigration status, losing their children and things like that.
That is an example that this Government could take—and the committee could encourage the Government to really consider taking—some positive action on. When we are talking about implementation now, the Government in place when the UK was reviewed and had its cycle 4 UPR is not the same Government that is now considering implementation. That is an example of some really positive action that could be taken through the committee and the Government. We are seeing the generic recommendations that say, “Continue prohibiting violence against women and girls”; the Government can support that, as it is really broad, and say, “Of course we are taking some action”, but it seems that they are less likely to want to engage on these real specifics about removing a reservation. Dr Lane talked about that with regard to other international agreements.
The Chair: That is very helpful indeed. Thank you very much.
Q12 Peter Swallow: We have touched on this several times throughout this really helpful session, but I want to nail down specifically what role we, the Joint Committee on Human Rights, and Parliament more broadly can play at each stage of the UPR cycle.
Professor Jon Yorke: An important consideration is that, when you go to the universal periodic review, you are going to the world, and to the world of human rights. It might feel like, with your work timetable, it is a bit too much for us to be able to do everything. One of the most important training aspects of the committee is to disseminate the workload with other, subject-specific committees—that, if there is a committee on women’s rights or children’s rights, they therefore review the children’s rights recommendations or the women’s rights recommendations and the work behind that, and that you do not shoulder everything yourselves. The General Assembly and the Human Rights Council resolutions speak to Parliament—not committees specifically but Parliament as a whole. I think the most important thing, first and foremost, is the training of the whole of Parliament and not to shoulder the burden yourselves.
Q13 Tom Gordon: To what extent is the UPR process effective in actually achieving the aims in relation to the UK? Has the process resulted in any changes to law or policy that have improved the UK’s human rights framework?
Dr Alice Storey: There was the example I gave right at the start about Scotland raising the age of criminal responsibility. I think it is important that it was not the UPR alone that created that change, but it had a significant impact.
Dr Michael Lane: That is perhaps the most important question, and it might be good that we have left it until last. The example of the age of criminal responsibility in Scotland is a very good one. Another example from Scotland was Scotland’s National Action Plan for Human Rights—I think the acronym was SNAP. It was informed by UPR recommendations. It looked at recommendations from the UPR and other UN bodies and at other platforms where human rights issues concerning the UK were raised, and used that to, essentially, identify the priorities for that national action plan. There are examples from other countries as well.
Professor Jon Yorke: I would also look at this question in a more sophisticated way, thinking of the different branches of Government and the work in that constitutional conversation. Michael referred to the Rwanda policy case, the AAA case, earlier. There is another example of Chris Henley KC. He used our stakeholder report, specifically on the issue of children’s rights, in his case in the Court of Appeal—R v Layton and others. In his presentation of the interpretation of our national law, that was a soft law example of how to therefore give a wider review of that case for children’s rights. I recommend reading the International Bar Association’s work for the legal profession’s tips on reviewing that as well.
The UPR is kind of a humble mechanism: it does not shout very much about itself. It does have a voice, but, really, the people who use it are the ones who shout. If we therefore do not shout about the successes, they really do not get known. The more that this committee uses the UPR in its scrutinising of the work of Bills and keeping our Government to account, the more you yourselves can point to successes of your usage of the UPR. The more barristers—and the Law Society—use the universal periodic review in their legal work, the more examples there will be from the legal profession. Then, as our Government engage with other Governments in bilateral and multilateral communications, again, we will be able to see it, because there are examples.
As an example, in my field, Sierra Leone said that it was because of the universal periodic review that it abolished the death penalty. It was the clarity that the mechanism showed it, not just from other Governments or the opinio juris of states, but the way in which civil society educated it on the different failures of the death penalty and the opinio juris of states. When it brought that back to its Parliament, the death penalty was abolished—and similarly with Papua New Guinea, again on the death penalty. On the success of the UPR, the narrative of it needs unpicking. You cannot just point to one thing; it is about pointing to many things.
The Chair: That is a good and positive note on which to end this session today. On behalf of the whole committee, I thank all three of our witnesses for the enlightening contributions they have made. I think we are all a lot wiser now about what the universal periodic review is capable of achieving, and that it is a mechanism—not itself the Council of Europe or the United Nations Human Rights Council—and it is about how we use it.
You have challenged us in various ways. I was struck by the challenge that Dr Storey gave us a few moments ago about the reservation on Article 59. Given that we have legislation currently before Parliament, some of which is looking at recommendations that we have made on the borders Bill, we would be very interested to hear further in writing from you about what we can do, and how we can do more, to prevent violence against women, especially where they are migrant labour. At the end, Professor Yorke, you raised the issue of the rights of the child, and it will come as no surprise that this committee is very concerned about the Convention on the Rights of the Child and what more we can do to make a reality of some of its provisions. I hope you will see this as an opportunity to continue engagement with us as one of the mechanisms here in Parliament that is able to hold Government to account.
Dr Lane, Dr Storey and Professor Yorke, on behalf of the committee, I thank you very much indeed for being with us today. We have appreciated it very much. With those words, I end the meeting. Order, order.
