In its foreign policy, the UK Government is a keen advocate of national human rights institutions (NHRI’s). The Brighton Declaration, drafted by the UK, encourages Council of Europe States to consider ‘the establishment, if they have not already done so, of an independent National Human Rights Institution’. In June 2012 the UK signed a UN General Assembly resolution ‘Reaffirming the important role that such national institutions play and will continue to play.’
Yet at the same time, Navi Pillay, UN High Commissioner for Human Rights wrote to Theresa May MP raising concerns about proposals to reform Britain’s own NHRI, the Equality and Human Rights Commission (EHRC):
While fully respecting your Government’s priority to improve EHRC’s financial and operative performance as a public body, I would like to call on your Government to review some of the proposals with a view to preserving EHRC’s independence and to ensuring its continued compliance with the (Paris) Principles.
The ‘Paris Principles’ are the standards regarding the independence and mandate of NHRI’s agreed by the UN General Assembly. The accreditation process, led by the International Coordinating Committee of NHRI’s (ICC) with the support of the UN Office for the High Commissioner for Human Rights assigns ‘A’, ‘B’ or ‘C’ status. ‘A’ status endows NHRI’s with useful rights and privileges including during UN human rights review procedures. Three of the ten ‘A’ accredited NHRI’s in the European Union are presently in the UK – the Equality and Human Rights Commission, the Scottish Human Rights Commission and the Northern Ireland Human Rights Commission.
A recent report by the EU Agency on Fundamental Rights identifies the following six main criteria of the Paris Principles:
- A mandate “as broad as possible”, based on universal human rights standards and including the dual responsibility to both promote and protect human rights, covering all human rights;
- Independence from government;
- Independence guaranteed by constitution or legislation;
- Adequate powers of investigation;
- Pluralism including through membership and/or effective cooperation; and
- Adequate human and financial resources
The Equality Act 2006 equipped the EHRC with the statutory foundations to apply for this status, which it did so successfully in 2008. Drawing on the Paris Principles and its ‘general comments’, the ICC did however express concerns regarding the process by which EHRC Commissioners and investigating commissioners are appointed and rules requiring the Commission having to secure the consent of the Secretary of State regarding the payment and terms of Commissioners and staff. It also expressed its desire for the EHRC to be given the ability to fund free-standing human rights cases.
The Commission was the object of a special review by the ICC in 2010 following a critical report by the Joint Parliamentary Committee on Human Rights. However, the ICC was sufficiently convinced of the progress being made by the Commission to re-affirm its ‘A’ status. EHRC now faces the prospect of a further ‘special review’ given the significant implications for its mandate and independence arising from plans contained in the Enterprise and Regulatory Reform Bill, the government report ‘Building a Fairer Britain – reform of the Equality and Human Rights Commission’ and a significant cut in its budget.
The Government’s stated case for reform is that the EHRC’s mandate is too broad, that it wishes to focus the EHRC on its ‘core role’ and that it needs to take steps to improve the Commission’s financial accountability. It appears that the government took some note of Navi Pillay’s intervention. The Bill before Parliament does not contain mooted legislative amendments regarding EHRC’s accountability. Nevertheless, despite the ‘independence clause’ in Schedule 1 of the Equality Act 2006 the government has required the EHRC to enter into an informal ‘framework agreement’. This significantly intrudes on the operational independence of the EHRC by setting out a wide range of decisions where Ministerial or government consent is required or where the Commission must give advance notice of its actions. For example, the Commission is mandated to promote understanding of the importance of human rights, yet must secure consent from government regarding each item of expenditure on marketing and promotion. Until very recently approval rested with the Home Office’s Director of Communications.
The UN resolution the UK supported in June 2012 stresses ‘the importance of financial and administrative independence and the stability of national human rights institutions.’ Yet the UK government continues to threaten the EHRC with closure or further re-organisation if ‘sufficient progress’ is not made, without specifying what the desired progress is and plans a further review in 2013. Government has, without amending the statutory powers of the EHRC, made targeted budget cuts which prevent it from exercising its powers, ceasing to fund the Commission to provide a Helpline or to make grants, and has indicated that it will in future cease to fund the Commission to provide guidance to those with duties under the Equality Act 2010. It has also announced plans to conduct a ‘zero-based review’ to examine ‘those activities the EHRC is uniquely well-placed to do because of its legislative powers, strategic partnerships and expertise, and the resources – budget, staffing and infrastructure – necessary to support this’. Cuts in the Commission’s budget already appear disproportionate in contrast with other public bodies, from £70 million per annum in 2007 to £26 million or below by 2015.
The Enterprise and Regulatory Reform Bill aims to narrow the Commission’s mandate, repealing its ‘general duty’ and its duty and powers to promote good relations yet will not give the EHRC powers to support individual human rights cases as recommended by the ICC.
The EHRC has attracted criticism from those who wish it to be tougher in its defence of equality and human rights and in relation to its use of public money. Government may feel it has no choice but to respond. But as the UK begins to seek support for election to the UN Human Rights Council in 2014, to knowingly place its own NHRI’s ‘A’ status at risk would seem a peculiar and avoidable diplomatic folly.
Neil Crowther is an independent consultant and previously held the posts of Director of the Human Rights Programme and Director of Disability Rights at the Equality and Human Rights Commission.