6The crucial role of the Equality and Human Rights Commission and other UK National Human Rights Institutions
121.There are three National Human Rights Institutions (NHRIs) operating across the UK; the Equality and Human Rights Commission (Great Britain) (EHRC), the Scottish Human Rights Commission (SHRC) and the Northern Ireland Human Rights Commission (NIHRC). They are publicly funded bodies with a legislative mandate to protect and promote human rights and they have a central role to play in their enforcement.120 This can take a number of forms including; educating people about their rights, funding individual human rights cases, conducting strategic litigation, undertaking formal investigations and partnership working to encourage public authorities to adopt a human rights-based approach to their work. The exact functions that each of the Commissions operating within the UK can undertake is in part determined by the legislation that governs them, summarised in the table in Annex 1.
122.It is vital that the UK’s NHRIs have the powers necessary to do their jobs, in accordance with the different roles assigned to them. Much value can be added through NHRIs undertaking work–including litigation. This can ensure that human rights violations, and in particular systemic violations, are raised and addressed - and where necessary, litigated. The involvement of NHRIs in bringing–or assisting in–cases helps to ensure that streamlined and well-argued cases are brought before the Courts, thereby addressing human rights concerns in a timely manner, while avoiding lengthy, disparate and confused litigation.
The need for sufficient powers and a stronger approach to enforcement
The Equality and Human Rights Commission (EHRC)
123.In 2003, when the JCHR examined the case for the establishment of the EHRC, it noted that “there was an unmet need for citizens to be assisted in understanding what their rights are, how these rights must be balanced with those of others, and how to assert their rights without necessarily having recourse to litigation.”121
124.Since its establishment in 2008, the question of how successful the EHRC has been in fulfilling its human rights mandate has been posed repeatedly, by this Committee and others. In a report published in 2010, the then JCHR Committee concluded:
‘The publication of a human rights strategy is evidence that the EHRC is seeking to approach its responsibilities for human rights matters on a more systematic basis than hitherto; but, in our view, the Commission is not yet fulfilling the human rights mandate set out in the Equality Act.”122
125.We regret to report once again that the EHRC is still not operating as the visible and respected champion of human rights that the country needs. We heard criticism that the Commission had, at least until recently, not used its enforcement powers to their fullest extent:
“In effect, it is a regulator and while it has some relatively muscular powers, although not as muscular as those of some other regulators, I think that in the past it has been slow to use them. Again, it would be good for the public and for the people who use and abuse human rights to have a sense that the EHRC is a body to be afraid of. If you step out of line, the commission should be something that you do not want to be confronted with. I am not sure that people feel afraid enough of the EHRC.”123
126.David Isaac, Chair of the EHRC, expressed frustration that the Commission’s enforcement powers in relation to human rights were not as robust as they were in the context of equality. The consequence is that the Commission cannot provide legal assistance to individuals in a human rights case unless there is also an equality element in the case. Similarly, the Commission has the power to undertake investigations into named bodies in relation to possible breaches of the Equality Act 2010, but this does not extend to human rights breaches.
Box 1: Cases the EHRC has not been able to pursue due to its limited powers124
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127.It is difficult to understand why the EHRC should have weaker enforcement powers as concerns human rights violations than equality matters. The EHRC’s inability to bring cases on purely human rights grounds severely restricts its effectiveness. We therefore recommend that the Government harmonise the Commission’s enforcement powers in line with its powers in relation to equality, so that it can undertake investigations into named bodies for possible breaches of the Human Rights Act and provide legal assistance to individuals in Human Rights Act cases.
The Northern Ireland Human Rights Commission (NIHRC)
128.The NIHRC is the most well-established of the UK’s NHRIs, and historically it has exercised the most comprehensive human rights powers of the three UK Commissions.
The Scottish Human Rights Commission (SHRC)
129.The Scottish Human Rights Commission (SHRC) was set up using devolved powers. It has fewer formal powers than its counterparts in other areas of the UK. While it has powers to intervene in civil cases and make inquiry into public authorities in Scotland about human rights issues, it does not have the power to give any kind of legal assistance to an individual and indeed is expressly disallowed from doing so by its governing legislation.
130.As Judith Robertson, Chair of the SHRC, explained to us, this means they focus on working in partnership with communities to support the advancement of human rights rather than using judicial routes. She gave the example of a housing project in Leith in which the Commission worked with residents to realise their right to adequate housing by using human rights arguments to persuade the local authority to invest in the property to bring it up to standard. This, she argued, demonstrates a different, but nonetheless effective, model of rights enforcement:
“For me, that is human rights being transformational, but it does not require a judicial route to achieve that [ … ]. We have other examples of similar kinds of processes, using non-judicial routes, but still successfully holding duty bearers to account when they have not delivered effectively for people.”125
The need for adequate resources
131.The extent to which the Commissions are able to utilise the powers they have is inevitably constrained by their resources. All three Commissions have experienced significant budget cuts over recent years. The EHRC’s expenditure reduced by 68% between its first full year in operation in 2008–09 to £20.3 million in 2015–16, the NIHRC’s grant-in-aid from the Northern Ireland Office has been reduced to £1,099,000, which amounts to an approximate 37% decrease in real terms since 2011126 and the SHRC has experienced budget cuts in recent years leaving its current budget standing at just short of £1 million.127
132.The Commissions have the potential to play a more significant role in the enforcement of human rights. If they are given the necessary powers and use them assertively, then there is a case for their budgets to be increased to at least partially reverse the impact of the funding reductions they have experienced. This additional cost would be off-set to some extent by a reduction in legal costs as fewer individual cases would reach the Courts. At the same time, if they are to play a more significant role then greater scrutiny of their work by their respective Parliament or Administrations would be appropriate.
120 National Human Rights Institutions (NHRIs) are accredited by the Global Alliance of National Human Rights Institutions (GANHRI) based on their adherence to the United Nations Paris Principles.
121 Joint Committee on Human Rights, Sixth Report of Session 2002–03, The Case for a Human Rights Commission, HL 67-I / HC 489-I
122 Human Rights Joint Committee, Thirteenth Report of Session Equality and Human Rights Commission March 2010
126 Northern Ireland Human Rights Commission, Business Plan 2018–19, April 2018
127 Scottish Human Rights Commission, Annual Report 2016–17, October 2017
Published: 19 July 2018