Building block 4: Understanding the legal basis of EQHRIA

To undertake an EQHRIA that will have a positive effect on policy outcomes, assessors must have knowledge of key human rights and equality principles and law. They must also understand how to apply key principles and law to the issues that they are assessing.

Commentary  

  • Why is understanding the legal basis of EQHRIA important? 

The business case

EQHRIAs based on a sound understanding of human rights and equality principles and law will allow policymakers to take account of human rights and equality issues when they make key decisions. Such EQHRIAs will provide assurances rather than assumptions that actions are fair, not arbitrary, and that they comply with the law, preventing violations before they require redress and added expense.

Reflections on understanding the legal basis for EQHRIA:

“Equality and Human Rights Impact Assessment, if it’s done properly, gives organisations an opportunity to ensure that they are meeting their legal obligations both under the Equality Act and the Human Rights Act.”

“It’s important that assessors are supported and that they undertake training to ensure that they are aware of, and have knowledge of, not only the Equality Act but also the Human Rights Act principles. And that is the only way to ensure that Equality and Human Rights Impact Assessment is carried out properly…”

“Obviously there are huge risks in that they [public bodies] can be challenged for failures in relation to the Equality Act and the Human Rights Act. Undertaking Equality and Human Rights Assessment is one way to feel confident that you are managing those risks and hopefully that you are not facing challenges in the future.” Muriel Robison, Equality law consultant and trainer

 

The legal case

Regulation 5 of The Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 requires listed authorities, where and to the extent necessary to fulfil the equality duty, to assess the impact of applying a proposed new or revised policy or practice against the need to eliminate discrimination, advance equality of opportunity and foster good relations.

In making the assessment, a listed authority must consider relevant evidence relating to people who share a relevant protected characteristic.

A listed authority must:

  • Take account of the results of the assessment in respect of the policy or practice;

  • Publish, within a reasonable period the results of any assessment of a policy or practice it decides to apply; and

  • Make appropriate arrangements to review and, where necessary, revise any policy or practice that it applies in the exercise of its functions to ensure that, in exercising its functions, it complies with the equality duty.

Any consideration by a listed authority as to whether or not it is necessary to assess the impact of applying a proposed new or revised policy or practice is not to be treated as an assessment of its impact.

The Human Rights Act 1998 provides that it is unlawful for a public authority to act in such a way as to contravene the European Convention of Human Rights and assessment of impact provides an opportunity to ensure that applying a proposed new or revised policy or practice will not do so.

  • What are the practical considerations?  

EQHRIAs should use recognised national and international legal frameworks as the basis for assessment. In the UK context this means that the Equality Act and Human Rights Act are indispensable elements of any impact assessment process. But applying human rights and equality obligations to specific areas of public policy such as health, education, housing or transport is not an easy task. Therefore considerable training, support and examples of good practice will be required for assessors to be able to apply these legal frameworks appropriately (see building block 3).

Organisations should also consider utilising other international human rights standards that provide more detailed elaborations of particular equality and human rights issues. For instance, the International Covenant on Economic, Social and Cultural Rights; the Convention on the Rights of the Child; the Convention on the Rights of Persons with Disabilities; the Convention on the Elimination of Discrimination Against Women; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.  

Pilot practice example:

In Renfrewshire training was delivered in equality and human rights to council officers across services. Additionally, officers within the Chief Executive’s Service developed a knowledge hub consisting of a wide range of evidence on Renfrewshire’s diverse population, key issues and emerging trends (see Building block 6 on evidence gathering) and impact assessment support, information and guidance is being developed for publication on the Council’s intranet Renfo. Furthermore, capacity building packages are being developed to advance thinking, understanding and knowledge of equality and human rights.

 For equality and human rights training resources detailing the applicable legal frameworks.

For links to further human rights training resources.