Why assess human rights impact?

There is both a business case and a legal case for assessing human rights impact.

The business case for assessing the impact of human rights

Integrating equality and human rights into governance, policy and decision making structures will help to:

Achieve better outcomes for people

Equality and human rights are core to achieving national and local performance outcomes which aim to improve the quality of life and opportunities for all people across Scotland.

Improve performance

The consideration of human rights and equality issues will assist in improving performance in delivering high quality public services as efficiently, effectively and economically as possible as they will ensure they are responsive to people’s individual circumstances at the point of delivery.

Demonstrate accessibility and accountability

Where equality and human rights are assessed, based on evidence and the meaningful involvement of communities, stronger relationships will be built and it will be easier to demonstrate fairness, transparency, accessibility and accountability thereby enhancing public ownership and legitimacy in policy and decision making.

Ensure compliance with the law

Proactively taking account of human rights and equality in the exercise of an organisation’s functions will provide it with assurances rather than assumptions that actions are fair, not arbitrary, and that they comply with the law. This helps to prevent violations before they require redress and thus reduce both legal and financial risks and expense.

In interviews council officers have said:

“I have difficulty to see where the dividing line is between the two, equality and human rights. Upholding people’s rights should include reflecting diversity and affording everyone equality of opportunity or access to services.” 

“It saves complicating things of what is an equality and what is a human rights issue. For officers in the council, we shouldn’t muddy the waters by trying to work out which is one and which is the other. It is irrelevant in terms of what the council wants to achieve at the end of the day.” 

In addition to the above the integration of human rights into your impact assessment approach will assist with following:

Avoid duplication of process - it's all about people

In furthering the above objectives it is practical to use an integrated approach for integrated thinking around equality and human rights, avoiding duplication of time and effort whilst ensuring policy making which improves outcomes for everyone. Human rights are inherently “person centred” putting people at the heart of effective public service design and delivery in a consistent and clear way. It provides a legal and objective basis for ensuring a person centred approach in practice, focusing the attention of service design on what will deliver the best outcomes for people, rather than 'one size fits all' policies which seek to make people fit systems.

The legal case for assessing human rights impact

The Human Rights Act 1998 makes it unlawful for a public body or those performing a public function to act, or fail to act, in a way that is incompatible with the European Convention on Human Rights. This means understanding human rights and taking them into account in all day to day work.

Introducing human rights while having due regard to equality in policy analysis will assist organisations meet duties under the Human Rights Act 1998 by:

  • Broadening the scope of impact assessment.

  • Providing a framework for balancing competing rights, interests and risks.       

  • Highlighting the most serious impacts.

Broadening the scope of impact assessment

The public sector equality duty covers the following protected characteristics: age, disability, gender, gender reassignment, pregnancy and maternity, race, religion or belief and sexual orientation as well as marriage and civil partnerships, with regard to eliminating unlawful discrimination in employment.

In interviews council officers have said:

"It is nice to be able to tell people we are not just planning for equality groups but for everyone."

"You have to see the totality of impact on people and if you separate into streams then you miss the whole impact. If you make decisions about services for carers it impacts disproportionately for women but it also impacts someone’s independence or family life so you have to see it as impact on people. To take it separately you lose the sense of how the decision will impact on lots of people in lots of different ways."

Human rights however, belong to all of us regardless of status or any protected characteristic. As Article 1 of the Universal Declaration of Human Rights states:

‘All human beings are born free and equal in dignity and in rights.’ (Universal Declaration of Human Rights)

The universality of rights and the equal enjoyment of rights by all persons provides a different perspective on some of the policy areas considered in the case studies and pilots.

As human rights apply to everyone, taking an Human Rights Based Approach compliments an equality analysis by prompting consideration of whether the impact of a policy on people’s rights is acceptable and also how a policy might drive up standards of services and enhance positive impacts for all people, not only those defined by particular characteristics. It could mean that impacts disproportionately affecting vulnerable, disadvantaged or voiceless communities are considered where they might otherwise be overlooked. This would include, for example, consideration of impacts on people living in poverty, homeless people, carers, or people with a particular health status (such as people living with HIV).

Providing a framework for balancing competing rights, interests and risks

A human rights analysis can help balance competing rights and interests of different people. This is because very few rights are absolute. Most human rights can be interfered with when justified, in pursuit of a legitimate aim, such as the protection of the rights of others, and proportionate, that is the minimum necessary interference in pursuit of a legitimate aim. You can learn and understand more about this in our basic training resource.

By demonstrating that policy and decision making takes account of the rights of everyone an impact assessment can support the understanding that there are rights to be respected for all communities, whilst also paying regard to protected characteristic groups.

As one council officer said: “I think that’s what a lot of people forget about human rights. …It’s not just one thing or another, you do have to balance different people’s rights and priorities.”

Local authorities have provided examples of balancing competing rights and interests in practice, including:

  • The rights of Scottish Gypsy/Traveler communities to respect for private, home and family life must often be weighed alongside the right to respect for private, home and family life and to peaceful enjoyment of property of settled communities. This demonstrates how human rights are for everybody.

  • In assessing its response to street begging a local authority had to consider the impact on the physical accessibility of pavements for disabled people, as well as the rights of homeless people. Taking a human rights approach the authority found that a proposed bye-law prohibiting street begging could have a disproportionate negative impact on homeless people, and the bye-law was ultimately rejected.

  • A school used an Human Rights Based Approach in shaping its exclusion policy to balance the rights of the pupil subject to exclusion, such as the right to education, with the rights of the other pupils and teachers in the school.

  • An understanding of human rights has assisted council officers in dealing with the privacy claims of householders refusing access to their homes for gas safety appliance checks, without which the right to life of others would be compromised.

Furthermore an understanding of human rights and the concept of proportionality helps to balance rights and risks in decision making, getting the balance right between protecting people from risk of harm and upholding autonomy. Human rights require that we act to protect people at risk of serious harm. They require that any restriction on our right to live our life as we choose (our autonomy) be based on law, pursue a “legitimate aim” such as protecting the rights of others, and be the least restrictive effective means of achieving that aim. Understanding the balance of these rights and duties provides a framework for making difficult decisions on balancing risk and rights.

Highlighting the most serious impacts

Human rights are fundamentally about the human dignity of all of us and the opportunity to lead fulfilling lives.

A human rights analysis will identify where impacts on people with protected characteristic or others reach a threshold which could amount to a human rights violation. This includes but is not limited to those impacts already identified by an equality analysis. Taking an Human Rights Based Approach helps puts in place minimum standards of treatment for all regardless of whether they are from a protected characteristic group. In human rights terms everyone must be treated with dignity and respect.