Last quango in Paris? Why the fate of the EHRC is important for all of us – Neil Crowther

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:

  1. 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;
  2. Independence from government;
  3. Independence guaranteed by constitution or legislation;
  4. Adequate powers of investigation;
  5. Pluralism including through membership and/or effective cooperation; and
  6. 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.

14 thoughts on “Last quango in Paris? Why the fate of the EHRC is important for all of us – Neil Crowther

  1. The writer does not seem to respect the right and duty of the elected government to manage the public finances.

    • I would prefer that its budget were set and agreed by Parliament, as with bodies such as the Parliamentary and Health Services Ombudsman, Electoral Commission, HM Inspectorate of Constabulary & the Scottish Human Rights Commission on a three year cycle in order to provide the stability it requires to be operationally independent from Ministerial interference. If Ministers can cut its budget or use financial leverage to determine what it does and does not do then it cannot operate with the independence necessary to credibly perform its role: ensuring that the UK State respects, protects and promotes human rights. The Commission is already accountable to the National Audit Office for its use of public money and to the Public Accounts Committee of Parliament. I would suggest that the measures in the Framework Agreement and proposed in Building a Fairer Britain are about control, not accountability hence their incompatibility with the Commission’s role as one of the UK’s three National Human Rights Institutions.

    • Of course the government has a duty to manage the public finances, but it must also have regard to the wider implications of the choices it makes on our behalf. The advice and assistance given by organisations such as the EHRC can improve the speed and quality of dispute resolution, leading to quicker and cheaper outcomes for all concerned i.e. less time spent in court or tribunal dealing with ill-conceived or badly presented cases by litigants in person. Moreover the possible downgrading of EHRC from A rating by the ICC / UN may not have any immediate impact on the public purse but that does not mean there would not be repercussions on the international stage.

  2. When I tried to get the EHRC to help with really serious human rights issues they told me to get lost!
    So I have just written to Navi Pillay pointing out that the UK cannot be given the responsibility of looking after its citizens human rights as quango EHRC is run by bigots and fools.

  3. A very valuable article relating to issues not generally reported upon in the mainstream media disclosing a revealing insight into the corrosive nature of government manipulation and control of bodies the government would have the general public believe are ‘independent’ of it

    It is extremely doubtful that any single body in receipt of public funds can be said to be truly independent of government influence and control. Those who assert independence are, as here, either, neutralised by financial strangulation or the threat of it.

    Other examples include access to remedies being made procedurally difficult or financially impossible to obtain, or where they are obtainable, made worthless in practical effect. It is a depressing feature of this government as well as the previous government who, between them, seem to be working to a consistent pattern, especially in areas of human rights, access to qualified legal advice and representation in our courts while at the same time introducing legislative measures specifically designed to remove the organs of state from independent scrutiny and democratic accountability.

    Please keep us up to date on this one!

  4. The EHRC used to offer a really useful service to the general public – a helpline which was staffed by people who offered excellent advice on matters such as disability discrimination, racism etc. Unfortunately, this service was terminated in April of this year, leaving a huge gap in the delivery of impartial, expert advice.

    • Hi Evelyn

      The Government decided not to fund the EHRC to provide the Helpline any longer. It has now funded a consortium including Sitel (a private company call-centre that previously partnered the Disability Rights Commission to provide its helpline) and Disability Rights UK among others to provide the ‘Equality Advisory Support Service’ http://www.equalityadvisoryservice.com/

      Neil

  5. Tim: the government has better democratic credentials than the United Nations!

    Neil and others: does the Equality Advisory Support Service offer its help to employers or traders who want to resist an equality claim which is being asserted against them? Or are they expected to pay for any help they need?

    If so – why the inequality?

    • Unlike the previous Helplines, the new one only provides advice to individuals. The Helpline’s have never offered specific legal support to individuals or duty-holders just general information, but may refer individuals on to such support. I’m not sure what the government’s intention is in relation to advice for duty-holders, though it has indicated that it believes this should be generated by those close to e.g. business as opposed to the EHRC.

    • Hi Andrew. The government has withdrawn funding from the EHRC to provide a Helpline and has instead established a new advice line http://www.equalityadvisoryservice.com/app/home. Unlike the EHRC Helpline the new advice line does not provide information and advice to duty-bearers. In any case, neither it or the previous EHRC Helpline provide/d legal advice and support, so there is no charge of inequality to be made in that respect.

      The EHRC has published a wide range of practical guidance on the law: http://equalityhumanrights.com/advice-and-guidance/new-equality-act-guidance/ However, the government has signalled that in future it will not fund the Commission to do so.

      ACAS also offers support to employers: http://www.acas.org.uk/index.aspx?articleid=1363

      Best wishes, Neil

  6. An employer may be an individual.

    It is outrageous that a publicly-funded body should offer help and advice to one side of possible litigation and not the other.

    • HM Government, which is also a publicly funded body, seems to have dedicated a huge amount of effort to doing just that, with its swathe of one-sided employment law changes which are aimed at helping employers and hindering employees in such litigation.

      Employers can also use the publicly-funded Acas helpline for advice on a whole range of employment law and industrial relations issues including discrimination. The fact that one organisation no longer offers such services does not mean those services cannot be obtained elsewhere for free.

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