The International Covenant on Civil and Political Rights and United Kingdom Law

By David Harris; Sarah Joseph | Go to book overview
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secure full compliance with EC law. The Trade Unions Congress, too, has made a complaint to the Commission on a similar basis and has also complained about the abolition of the Wages Councils by the Trade Union Reform and Employment Rights Act 1993, section 35, which dismantled one of the most practically effective ways of maintaining equal pay for women.230


EQUALIZING DOWN

Two alternatives seem available to redress violations of the Covenant's non-discrimination norms: to raise the rights of the victim to the level of those treated better than him/her, or to lower the rights of those others to the level of the victim. The latter solution would seem to satisfy the Covenant's discrimination provisions, although its effect is to diminish the rights of others, while barely, if at all, benefiting the author. Committee member Ando conceded in Pauger v. Austria (415/ 1990) that 'equalizing down' could satisfy Article 26 requirements, but added that 'practical considerations . . . suggest that society would hardly have endorsed [this] alternative'. Furthermore, 'equalizing down' could be precluded by Article 5(2), which prohibits the invocation of the Covenant as a pretext for reducing the existing rights of persons within a state party.

The United Kingdom has 'equalized' the previously unequal position of foreign males and females under immigration law by reducing the rights of the persons who had previously received beneficial treatment.231 Furthermore, the fixing of common pensionable ages for men and women at 65 from the year 2010 will reduce the pension rights of women. Presumably, the United Kingdom Government would attempt to counter any Committee criticism by resorting to arguments of fiscal necessity.


CONCLUSION

The guarantees of non-discrimination enshrined in the ICCPR are of great importance. Human Rights Committee jurisprudence is still developing, but there have already been significant decisions and opinions. The ICCPR compels states parties to prevent and to remedy invidious discrimination by public authorities, and probably by private bodies exercising public functions.

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230
EOC, Briefing Paper, 'TURERA: Abolition of Wages Councils' ( London, 1993).
231
e.g. the immigration rights of the wives of Commonwealth citizens were reduced to those of husbands of Commonwealth citizens by the immigration Act 1988, s. 1; see also ch. 9.

-594-

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