LIORA LAZARUS AND NATASHA SIMONSEN
University of Oxford
Introduction
In this presentation we consider two primary questions. First, what powers does the EHRC have in relation to enforcement? And second, how are those powers exercised?
In relation to the first question, we will situate the enforcement powers of the EHRC in a comparative framework, having regard to the powers which similar bodies in other jurisdictions wield. In relation to the second question, we will consider and assess the role which EHRC enforcement action played in the important human rights issue of the DNA database.
Part One: the spectrum of enforcement powers wielded by NHRIs
National human rights institutions can be conceptualised as instruments of accountability. NHRIs typically rely on preventative and remedial activities to achieve their goals rather than binding enforcement action. These preventative and remedial forms of promoting human rights accountability include issuing reports, monitoring policies and legislation, and making recommendations to the government and other public bodies.
These measures have been described as ‘weak form’ accountability and have been contrasted with other, ostensibly stronger measures such as issuing decisions which are binding on the participants. However, the terms ‘strong’ and ‘weak’ are more problematic than they first appear, with some research indicating that measures which might have been classified as ‘weak’ (because non-binding) may nevertheless be more effective in achieving practical outcomes; particularly with respect to institutional change.
In this part, we will analyse the enforcement powers with which the EHRC is vested (found in sections 20-32 of the Equality Act 2006) and compare them with those of other similar bodies such as the Canadian and Australian Human Rights Commissions.
Part Two: EHRC enforcement in practice
In this part of the presentation we consider some of the statistics on EHRC enforcement action and the Commission’s enforcement and compliance policy. We will then take a more detailed look at the role the Commission has played in a key human rights issue which has arisen in recent years: the DNA database and the implementation of the decision of the European Court of Human Rights in S and Marper v UK.