Brian Cathcart explores the abject failure of our official watchdog to challenge the Government’s onslaught on human rights 

Boris Johnson’s Government is an enemy of human rights. More than any government in living memory, it seeks to whittle away – you might say ‘cancel’ – our ability to exercise rights long recognised in international conventions. 

The right to protest is to be dramatically restricted by the Police and Crime Bill. Millions will be stripped of the right to vote by the Elections Bill. The Nationality and Borders Bill places the right to British citizenship of millions of people in doubt, while also denying refugees the right of asylum. Our right to privacy will be restricted under the Bill of Rights, and Brexit has eroded our workplace and consumer rights.  

And it doesn’t end there. A torrent of less conspicuous Government initiatives is compromising the basic rights of many minorities – Muslims, black people, Gypsies and Travellers, LGBTQ+ people, the disabled and others.

The bonfire of human rights is now fully ablaze. So we must look to our defences. Who is there to protect us?

The courts do their bit – and are under attack from ministers as a consequence – but the courts can only uphold the laws that they are given; and they cannot act too late, when rights have actually been violated.

Can anyone stop the Government? Can anyone shame it or call it to account? 

If ever there was a moment for our Equality and Human Rights Commission (EHRC) to live up to its name, this is surely it. If this large public organisation has any purpose, it must be to give leadership now. 

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Priorities

The EHRC’s official, formal mission – as stated on its website – is to challenge discrimination “and to protect and promote human rights”. It is recognised by the United Nations as a National Human Rights Institution which has “competence to promote and protect human rights”.

What is the EHRC doing right now to “protect and promote” our human rights in the face of an unprecedented Government onslaught?

All the relevant NGOs – from Liberty, Justice and Amnesty International to Human Rights Watch, Freedom from Torture, Stonewall, the Electoral Reform Society and many more – are resisting in every way that they can. But the EHRC, our official protector, is not even on the battlefield. 

Google ‘EHRC’ and ‘news’ and and trawl through the pages of results: you will find nothing to suggest that the Commission is unhappy with the trend of Government legislation. Go to the EHRC website and you will have to look pretty hard for evidence of concern. The @EHRC Twitter account, meanwhile, is tame and quiet. 

This is not to say that the EHRC has been completely silent or inactive. But there is nothing in its outward demeanour or conduct to suggest that it is even aware of a crisis of human rights unfolding on its watch. 

Its chair, Baroness Kishwer Falkner, declares on the website that “the EHRC’s duty is impartially and fearlessly to protect and promote human rights laws and standards”. But she herself gives every indication of being far more concerned about the supposed dangers posed by a small number of marginalised trans women than the obvious danger posed to millions by those holding the levers of national government. 

As a member of the House of Lords, Baroness Falkner speaks in debates and her interventions give some idea of her priorities. 

In the debates about the Nationality and Borders Bill, she has spoken once – raising the important, but hardly central issue, of the rights of Chagossians and then appealing to the Government, politely and in vain, to promise that this “humanitarian Act”, as she called it, would not overturn years of nationality law.

In the debates on the Police, Crime, Sentencing and Courts Bill, she has spoken briefly twice and on both occasions it was about the same issue – not the right of protest, not stop and search and not the victimisation of Travellers, but about trans women.

In a debate on freedom of speech last December, she spoke at greater length and again that was mainly trans-related, about the alleged silencing of ‘gender critical’ academics in universities.

None of this suggests any alarm on Baroness Falkner’s part about the Government’s conduct. Instead, it accords with the reporting of Ben Hunte about her reign at the EHRC. Employees are quitting there, Hunte wrote recently, because they believe that the organisation has become transphobic and an “enemy of human rights”.


Concerns Brushed Aside

What is the EHRC actually doing about human rights? It has a legal duty, backed by an international obligation, to brief government and parliamentarians on the implications of pending legislation for human rights and equalities. This duty appears to have been discharged.     

If you know where to look, the briefings are published and they say at least some of the things you would hope they would say. 

For example, the first briefing on the Police, Crime, Sentencing and Courts Bill, in mid-2021, stated: “The Commission advises the Government to reconsider the expansion of powers to police peaceful protest, which we consider inconsistent with Articles 10 and 11 of the ECHR (European Convention on Human Rights).” 

The briefing on the Nationality and Borders Bill was less blunt, but it too warned of a potential conflict with human rights commitments.

On the plan to introduce a ‘Bill of Rights’, the EHRC actually published a blog under the headline: ‘Human Rights Act reforms “Lack Evidence and Risk Reducing Protections”.’

But, on the Elections Bill, which threatens to strip millions of their votes, there seems to have been no briefing to date.

What is striking is that all of this is so obviously ineffective: again and again, the Government has whipped its peers and MPs into the lobbies to vote contrary to EHRC advice. The briefings make little difference because ministers are determined to carry on – and the EHRC must know that. 

To all outward appearances, in other words, it has been going through the motions, doing no more than it has to do in response to a whole raft of legislation undermining our human rights – and then sitting on its hands when its advice is brushed aside. 


Government Influence

What should it be doing? It could show leadership and be a focus of informed opposition, as you might expect, for example, of a comparable human rights organisation that was operating in a dictatorship. 

It has the powers. It has a remit to conduct investigations and publish reports, and under its international obligations, it is supposed to engage in ‘advocacy’ and ‘follow-on activities’, including issuing publications and cooperating with NGOs. But, instead, it is not even part of the public debate. 

In a way, we should not be surprised because, as is happening with other bodies that are supposed to act on the public’s behalf – such as Ofcom, the Charity Commission, the BBC and the Office for Students – the EHRC has been carefully groomed into compliance with the wishes of ministers. 

It is brazen. In a speech in 2020, then Equalities Minister Liz Truss spelled out a Conservative agenda focused on ‘levelling up’ and supporting the white working class, and then she stated bluntly: “That is why I am appointing a new chair and a wide variety of commissioners to the Equality and Human Rights Commission to drive this agenda forward… Under this new leadership, the EHRC will focus on enforcing fair treatment for all, rather than freelance campaigning.”

Out loud and in public, she told us that she had handpicked the leadership of a body formally tasked with holding the Government to account, that she had banned it from “freelance campaigning”, and that she had instead tasked it with “driving forward” her own highly partisan agenda. 

Our human rights are under attack and the public body charged with protecting us has been comprehensively neutered. Where statutory obligations compel it, it merely goes through the motions. We’re on our own. 

Brian Cathcart is Professor of Journalism at Kingston University London and the author of ‘The Case of Stephen Lawrence’ (1999)

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