Written evidence from the Equality and Human Rights Commission (HRO0014)

Introduction

About the Equality and Human Rights Commission

The Equality and Human Rights Commission is Britain’s equality and human rights regulator. Our human rights powers in Scotland extend to reserved matters. We are accredited by the United Nations as an ‘A’ status National Human Rights Institution (NHRI). We safeguard and enforce the laws that protect people’s rights to fairness, dignity and respect.

The UK Parliament has given the Commission the power to advise Government on the equality and human rights implications of laws and proposed laws, and to publish information and advice on equality and human rights matters.

In our response of 8 March 2022 to the UK Government’s consultation on reform of the Human Rights Act (HRA), we highlighted the need for the legal routes provided by the HRA to ensure access to justice for human rights breaches. Ombudsperson services play an important role in providing a mechanism for people to uphold their rights out of court. The Commission supports the human rights mandate of existing ombudsperson services, including by publishing a human rights guide for ombudsman schemes in 2019. We therefore welcome this inquiry into how such provision can be enhanced.

Our response

Question 1: Should there be a Human Rights Ombudsperson? If so, what powers and resources would the ombudsperson need to address the challenges people face in enforcing their rights out of court?

In order to have full enjoyment of their human rights, people in Britain must have access to mechanisms for redress. These include both legal enforcement and out-of-court routes. An ombudsperson model is one means of securing out-of-court redress. Maintaining and improving access to redress is an important part of our current consideration of reform of our human rights laws, in which we aim to ensure that there is no reduction in individuals’ ability to access justice for potential breaches of their human rights.

Ombudsperson functions are an important means of enforcing rights. We have produced guidance[1] on how human rights should be applied to this role. In our view, it would be more efficient and effective – as well as more achievable – to strengthen the human rights capabilities of existing ombudsperson services, rather than develop a new body specifically for human rights. Ombudsperson services already consider human rights issues in the cases they decide. It may create confusion if, for example, these parts of a claim were handled by a separate service, particularly given the variety of existing ombudsperson and similar services (see Question 3).

The Equality and Human Rights Commission is Britain’s National Human Rights Institution. We are separate from and perform different functions from ombudsperson services. If there are to be changes the existing or new ombudsperson services, we recommend establishing clarity about their roles in human rights protection relative to ours, including how and when we can work together to promote and protect human rights (see Question 4). This could include clarifying the application of domestic legislation and international agreements where necessary.

We recommend ways in which human rights enforcement could be strengthened without creating a new body (see Question 5).

Some existing ombudsperson services may be unclear about their role in addressing the human rights aspects of complaints. This could be because it is not explicit in their governing legislation or not fully understood by their staff, and any such gaps could be addressed. This will be important if changes to human rights laws create a higher threshold for human rights claims through the courts, leaving more people potentially seeking justice through administrative routes.[2]

However, if a new ombudsperson service is created with responsibility for protecting human rights, it must have sufficient independence, powers and resources to work effectively. The Venice Principles, endorsed by the Committee of Ministers of the Council of Europe, provide a formal list of the requirements of an ombudsperson service. UN General Assembly Resolution 75/186, co-sponsored by the UK, sets out principles for states, including the importance of abiding by the Venice Principles and the independence and mandate of ombudspersons. The principles include:

Independence

Any ombudsperson service must be independent from Government, with an appointment process which ensures its ‘authority, impartiality, independence and legitimacy’.[3]

Appropriate powers

Any human rights ombudsperson should have a broad remit covering all public services. An assessment of the coverage provided by existing ombudspersons should assess any gaps, with a view to strengthening existing human rights capacity. It will also be important to clarify its remit with regard to devolved nations (see Question 4).

Ombudsperson services should have sufficient powers to investigate complaints effectively, including powers of discovery, and the power to make recommendations to relevant bodies as a result. Consideration should be given to the effectiveness of ombudspersons’ decisions in human rights cases, given their generally non-binding nature, and the need to ensure complainants have access to legal routes to redress where this route is ineffective in providing a remedy.

Any ombudsperson’s services should be sufficiently accessible on human rights matters, including through the provision of guidance for service users on human rights. Publicity to the public about the service and the role of the ombudsperson in investigating human rights complaints is crucial, as is information on the existence of routes to redress and how to access them through the ombudsperson service. The lack of public awareness about human rights, and how they might be breached, was noted by the Independent Human Rights Act Review (IHRAR) panel, and by the JCHR in its report on Human Rights Act reform. [4] 

Appropriate resources:

Any new human rights ombudsperson will require sufficient resourcing, in line with its potentially broad scope. Alternatively existing ombudspersons must be provided with sufficient resources to support the investigation of human rights complaints, and to strengthen and promote their work in this area.

Current ombudspersons may not meet all these requirements. A lack of clarity about their respective remits makes this difficult to assess. This inquiry should aim to achieve greater clarity, and stronger links between relevant organisations, including the Equality and Human Rights Commission, to ensure they operate as a coherent whole in respect of human rights.

Question 2: What powers would the ombudsperson need to ensure they provide an effective remedy, as required by Article 13 of the European Convention on Human Rights (ECHR), for individuals trying to enforce their rights?

Article 13 of the ECHR requires that individuals have access to an effective remedy before a national authority for breaches of their Convention rights. While ECHR case law shows that ombudspersons can play a role in this,[5] the remedy must be effective. Factors relevant to this effectiveness include the accessibility of the remedy, its promptness, and importantly its ability to remedy the violation.[6]

The HRA provides individuals in the UK with access to a judicial remedy for human rights violations. Courts decide individual cases and produce binding decisions on human rights violations. They can also address legislative incompatibilities and set precedents on human rights compliance, thereby helping to prevent further violations. These functions of courts are a vital part of the human rights legal framework. They could be complemented by better administrative routes to redress.

For a new or existing ombudsperson service to provide an effective remedy on human rights issues alongside that provided by the courts, issues to consider include:

It must be accessible to all, in line with Article 6 ECHR (right to a fair trial) in conjunction with Article 14 (prohibiting discrimination), and public bodies’ obligations under the Equality Act 2010. The ability for individuals to bring a case to an ombudsperson without legal support helps ensure accessibility.

It must be able to investigate and make decisions promptly. This means having sufficient resources to undertake its work. There must also be clarity on remit to reduce confusion between routes to remedy for claimants.[7]

The decisions of ombudsperson services are generally non-binding.[8] This is not necessarily a barrier to their effectiveness. However, when a public authority fails to comply with a human rights decision of an ombudsperson, the ability should be in place to bring a case to court addressing the human rights violation.

Question 3:  How would the Human Rights Ombudsperson interact with existing mechanisms such as ombudspersons and Commissioners, including in the devolved nations?

The human rights remit of the Equality and Human Rights Commission extends to England and Wales and to reserved matters in Scotland. Devolved matters are the responsibility of the Scottish Human Rights Commission. The Northern Ireland Human Rights Commission covers human rights matters in Northern Ireland.

Any new body must supplement and not conflict with existing services. Nor should any proposals result in any weakening of existing specialist bodies, for example by creating doubt about respective mandates. If any functions are to be combined in a broader organisation this must be done in a way which ensures it has sufficient resource to perform its existing and enhanced roles in full.

A non-exhaustive list of existing services that need to be considered in this regard includes: the Information Commissioner, Children’s Commissioners (England, Wales, and Scotland), Older People’s Commissioner for Wales, the Parliamentary and Health Services Ombudsman (PHSO), Local Government and Social Care Ombudsman (LGO), the Public Services Ombudsmen for Scotland and Wales, the Prisons and Probation Ombudsman and the Housing Ombudsman. All these services – and potentially others – are likely at least in part to cover human rights issues in the course of their work.

To avoid confusion for claimants, it may therefore be more effective to strengthen the human rights remits of existing bodies rather than create a new one. A similar recommendation to strengthen the ability of the Welsh Public Services Ombudsmen to handle equality and human rights issues has been taken up by the Welsh Government.[9] (See also Questions 4 and 5.)

Question 4: How would the Human Rights Ombudsperson interact with other bodies tasked with upholding human rights, including the Equality and Human Rights Commission?

Previous evidence to the Committee has suggested that giving the Equality and Human Rights Commission ‘ombudsman-like’ functions to investigate complaints from individuals who have experienced a breach of their rights[10] could make us more effective in supporting individuals to access justice. We have considered this option previously. In 2016, we funded a review of equality and human rights dispute resolutions services[11] and in 2018 we commissioned work on the possible role of the Commission in dispute resolution.[12] These studies recommended that we should provide expert advice on equality and human rights issues to dispute resolution services and ombudsmen to support them in their work rather than take on an ombudsperson role directly.

These existing services already have the expertise, capacity and infrastructure to perform an ombudsperson role effectively. Establishing a new ombudsperson function within the Commission would require significant initial investment and continued resourcing, as well as specialist expertise and professional development. This would not be the most effective role for us in improving access to justice.

Instead, we consider that we should continue to work cooperatively with any existing, new or expanded ombudsperson services, including to:

provide advice and guidance on human rights law, building on our previous work;[13]

share intelligence and insight to identify wider human rights trends and emerging issues;

accept strategic case referrals which might be more appropriately handled through our legal and enforcement powers; and

signpost individuals seeking our assistance to the appropriate ombudsperson service where we are unable to support.[14]

We would consider formalising this cooperation with ombudsperson services on human rights issues. This could take the form of a memorandum of understanding which covers our role and those of other ombudsperson services.

There is a possibility of overlap between our inquiry powers and a new or expanded ombudsperson service if it has the power to initiate investigations into human rights breaches. These powers would need to be defined to ensure clarity.

As the JCHR has previously noted, there is an imbalance between the Commission’s equality and human rights enforcement powers. We can provide legal assistance to individuals in equality cases, but not in human rights cases unless there is also an equality element in the case. We can also undertake investigations into named bodies in relation to possible breaches of the Equality Act 2010, but this does not extend to human rights breaches. Strengthening our human rights powers in line with our equality enforcement powers[15] would improve the protection of rights and strengthen access to judicial remedy. This would be separate from and complementary to justice provided by a new or expanded ombudsperson service.

Question 5. Are there other steps that should be taken alongside introducing a Human Rights Ombudsperson to ensure people can effectively enforce their rights out of court?

The IHRAR panel recommended a programme of human rights education to address a ‘lack of public ownership’ of rights.[16] Many people lack access to accurate information about human rights, or are swayed by negative public narratives about human rights.[17] Better understanding and awareness of rights will help people to access redress for human rights breaches, in and out of court, and contribute to better public policy making and the development of a human rights culture. This, in turn, reduces the need for enforcement and litigation following a breach.

Better guidance for public authorities on how to fulfil their obligations under human rights laws will also strengthen human rights protections. We support the JCHR’s recommendations to this effect,[18] and note our own role here in providing guidance. Government action will ensure that such guidance is disseminated, understood and implemented. When public bodies are clear on the requirements of human rights law, they implement more rights-respecting policies, again reducing the need for later enforcement.

It is important that existing protections for human rights are not weakened through changes to our human rights laws.[19] These protections include the liability of public authorities for breaches of human rights, their duty to act compatibly with the ECHR, and their positive obligations to protect rights.

The Equality and Human Rights Commission is part of a network of organisations that protect human rights, with complementary roles, working together to share intelligence and refer cases and issues. This Committee’s inquiry has the potential to be a catalyst in improving how this is done.