NICK O’BRIEN
Visiting Research Fellow, The Liverpool Law School

The main focus of this presentation will be the identification of the distinctive quality of the legal powers possessed by the EHRC and analysis of the extent to which those powers have been used effectively.

In identifying distinctiveness, attention will be paid to the extent to which the EHRC’s various legal powers form a coherent package, capable of mutual reinforcement. It will make that evaluation in the context of the powers held by its predecessor GB equality commissions and by other GB agencies of judicial or quasi-judicial power (e.g. civil courts, tribunals, regulators, inspectorates and ombudsmen).

It will be argued that such distinctiveness resides especially in the ability offered to the EHRC to transcend the individualism of conventional litigation and so achieve outcomes that are of collective and systemic value, without any surrender of the vividness that comes from the concrete experience of particular cases. It will be suggested that, to that extent, the test is how far the EHRC has ‘given force to’ equality and human rights frameworks rather than of how active it has been in its ‘enforcement activities’.

In analysing impact, attention will be turned to the shape of the EHRC’s overarching strategy and the extent to which its legal strategy fits with it. The presentation will consider not just the EHRC’s use of litigation in the courts (including, for example, the wider consequences and implications of the approach in the DDA case of Malcolm v Lambeth Council), but its use of general and named-party enquiries (including, for example, the general Human Rights Inquiry), of conciliation, codes of practice, work on the positive equality duties, and outreach with legal practitioners and policy makers. It will consider its explicit, and implicit, priorities (including the interests of particular groups) and the balance achieved between civil rights and social rights, negative and positive duties.

An attempt will be made to infer from these various activities the nature of the EHRC’s regulatory model and of how far any such model expresses a positive vision for the EHRC, and more generally for human rights and equality in GB.