The Equality and Human Rights Commission (EHRC), the Equality Body covering England, Scotland and Wales, recently launched an inquiry into statistical evidence showing that COVID-19 had a disproportionate effect on people of Black, Asian and other ethnic minority background, and whether this could have been mitigated. To me, this initiative, which also responded to calls by political leaders and public figures for such an inquiry, is a good illustration of the situation we find ourselves in Europe. On the one hand, the COVID-19 pandemic has exposed mercilessly the inequalities that persist in our societies, amplifying the existing vulnerability of marginalised groups, including ethnic minority groups, people with disabilities, older people and LGBTI people. On the other hand, most Council of Europe member states have the tools, including equal treatment legislation and national Equality Bodies -- such as the EHRC-- that can help address these inequalities and combat discrimination.
As we negotiate our way out of the COVID-19 crisis, it is crucial to strengthen the potential of these Equality Bodies, to harness their expertise and heed their recommendations in order to build equal and resilient societies.
Equality Bodies: defending equality at the national level
The principle of non-discrimination is enshrined in international law and in the national constitutions and legislation of Council of Europe member states. It is rooted in the Universal Declaration of Human Rights, the European Convention on Human Rights (ECHR) and its Protocol 12, the Charter of Fundamental Rights of the European Union (EU) and in the EU equal treatment law. Twenty years ago exactly this month, the EU took a decisive step to strengthen the enforcement of this principle. The Race Equality Directive (2000/43/EC), adopted on 29 June 2000, created for the first time an obligation for EU member states to establish a specialised institution at national level to help monitor and tackle discrimination based on racial or ethnic origin.[1]
Some such institutions had pre-existed in several countries, but the Race Equality Directive gave a strong impetus for the development and expansion of Equality Bodies across wider Europe. Nowadays, most of the 47 member states of the Council of Europe have one or several Equality Bodies, many of which are mandated to deal not only with racism and gender – as required by EU law -- but also with other grounds of discrimination, including age, sexual orientation, gender identity, religion and belief, disability, and socio economic status. A Network of Equality Bodies, EQUINET, was created in 2007 to facilitate exchanges and peer learning between them; it gathers 49 members from 36 European countries and Kosovo*.
There is great diversity among Equality Bodies as regards their mandate, functions, size and type of institution (stand alone, or part of a National Human Rights Institution or Ombudsman institution). Equality Bodies are low-threshold complaint mechanisms for victims of discrimination who cannot or do not want to turn to courts. They have the expertise to analyse discrimination and to provide solid advice on laws and policies. Many of them may be able to identify and address intersectional discrimination (whereby a combination of multiple identities results in specific disadvantages, for example for Black women). Several Equality Bodies have the power to issue decisions, in some cases legally binding, and fines, in specific discrimination cases. This diversity among Equality Bodies can be a strength as it brings a variety of approaches to tackling inequalities. What is at the heart of impactful Equality Bodies is strong independence and effective internal operations, including strategic planning, as underscored in an Opinion on National Structures for the Promotion of Equality published by my office in 2011.
As Commissioner for Human Rights of the Council of Europe, I have the mandate to co-operate closely with national human rights structures, including Equality Bodies. Given their solid national expertise, I strive to keep a steady channel of communication open with them, including in many cases before and during my country visits. We reinforce each other in following-up on recommendations to national authorities. I am convinced that Equality Bodies, when they are effective and independent, hold a strong potential to make a difference. When dealing with individual situations, they can have a life-changing impact for victims of discrimination. They can help address discriminatory practices at a structural level in organisations in both the public and the private sector, including through advice and training. Crucially, Equality Bodies have demonstrated the ambition and potential to achieve societal change, by creating a culture where equality among societies’ diverse members is truly valued.
Tackling equality challenges in Europe, old and new
The adoption of anti-discrimination legislation and the establishment of Equality Bodies across Europe is a very significant achievement. It means that there is an infrastructure in place to recognise and propose solutions to inequalities and discrimination – which continue to affect our continent pervasively.
Intensifying intolerance and hate speech across Europe
There has been a worrying down-turn on human rights in recent years, marked by a rise of far-right populist politicians who manipulate hate to gain votes, increasingly polarised societies, attempts to undermine women’s rights, and a proliferation of hate speech, the most frequent targets of which continue to be minority groups that have long suffered from discrimination. Several Equality Bodies have taken courageous action to counter these negative developments. The National Council for Combating Discrimination in Romania, for example, has on several occasions fined high-level politicians for their stigmatising statements concerning ethnic minorities; the Equality Ombudsman in Sweden sued several private firms for discrimination against Muslim women and published a study on stereotypes and the representation of Muslims in the media. The Ombudsman in Poland challenged in court proceedings the legality of anti-LGBTI declarations adopted by several municipalities in the country.
Poverty and economic inequalities
Social and economic inequalities are deepening in Europe. Discrimination based on social status and origin plays an important role in perpetuating poverty, in an unending circle. In addition to anti-poverty policies, equal treatment legislation and Equality Bodies are thus important tools to address economic inequalities. The Ombudsman in Latvia, for example, has brought constitutional challenges regarding the levels of social security, minimum wage and disability pensions; UNIA in Belgium conducted research on access to employment, housing and education for various groups, including people from poor backgrounds. Unfortunately, still too few Equality Bodies in Europe have the mandate to deal with socio economic status as grounds of discrimination.
COVID-19 pandemic
The outbreak of COVID-19 has amplified existing inequalities and revealed gaps in the enjoyment of human rights. Equality Bodies, as well as Ombudsman institutions and National Human Rights Institutions, have quickly adapted their work and taken an impressive number of initiatives related to the pandemic. The Public Defender in Georgia, for example, urged the authorities to make information about COVID-19 accessible for people with disabilities and in the languages of national minorities; the Ombudsman for Persons with Disabilities in Croatia issued recommendations about the situation in social care homes for children and persons with disabilities; the Equality Body in Finland examined reported refusals of intensive care for older persons and persons with disabilities; the Defender of Rights in France underscored the imperative need for access to internet and telecommunications during lockdown and made concrete suggestions to make this possible for people and families with limited financial means. Many Equality Bodies handled individual complaints of hate speech and discriminatory treatment targeting persons of specific nationalities or those infected with COVID-19.[2]
Algorithmic discrimination
The potential impact of Artificial Intelligence on human rights is one of my priorities. In September 2019, I organised a workshop with close to 35 European Equality Bodies to discuss algorithmic discrimination. Such discrimination already exists in fields as varied as recruitment, housing, public service delivery, and financial loans assessments, to name just a few. At the same time, Artificial Intelligence also has great potential to help fight discrimination. The Human Rights and Equality Commission in Ireland, for example, used an algorithm to track and analyse hate speech and racist discourse online in order to improve policy responses. In a Recommendation entitled “Unboxing Artificial Intelligence: 10 steps to protect human rights”, I highlighted several measures that can help mitigate the negative impact of artificial intelligence. National Human Rights structures, including Equality Bodies, have an important role to play in this field to help prevent violations, deal with complaints and strategic litigation, and ensure oversight of algorithms. I am pleased that work is already underway. In France, for example, the Defender of Rights handled several cases, including one concerning alleged discrimination by an algorithm allocating pupils to universities. In Finland, the Non-Discrimination Ombudsman won a legal case in which a credit institution was found responsible for multiple discrimination after a fully automated system refused a loan to a client based on statistical data relating to grounds of discrimination such as gender, age, language, place of residence and their combined effect.
Promoting a culture of Equality
The battle for Equality will only be won if everyone in society understands what is at stake and values diversity and equal treatment for all. Outreach, awareness-raising campaigns, and human rights education in schools should therefore be an important aspect of the work of Equality Bodies. The Human Rights and Equality Commission in Ireland, for example, led a campaign “All human all Equal” featuring short video portraits of disabled Irish people from diverse backgrounds. The Gender Equality and Equal Treatment Commissioner in Estonia created a TV series tackling gender stereotypes.
Sharpening the tools
Regardless of the many invaluable contributions by Equality Bodies, there are challenges that continue to prevent them from achieving their full potential. Some have a weak legal basis, or incomplete mandates and functions. In this regard, the time has come for EU member states to show leadership again by adopting the languishing Horizontal Equal Treatment Directive to cover all grounds of discrimination in all areas of life, and give a corresponding mandate to Equality Bodies. One important function that Equality Bodies sometimes lack is the power to bring cases to courts, and therefore to carry out strategic litigation, even if they can provide legal advice to victims. Furthermore, a great number of Equality Bodies report insufficient resources. In some countries, Equality Bodies are confronted with political indifference, where the authorities fail to consult and listen to them in policy making and ignore and downplay their recommendations. Ensuring that Equality Bodies are known by and accessible to the concerned populations is a challenge of crucial importance. In its MIDIS II survey on discrimination in 2017, the EU Fundamental Rights Agency found that an average of 71% of respondents were not aware of any organisations that offered support or advice to discrimination victims in their country (with variations between groups and countries). This highlights the need for Equality Bodies to have an effective outreach strategy and the means to implement it.
In some instances, particularly when they work on sensitive issues, Equality Bodies have experienced attacks and threats by politicians and others, or other types of interference that threaten their independence. I will continue to work to ensure that independent and effective Equality Bodies are in place across Europe. This means continuing to speak up to defend Equality Bodies against attempts to undermine them, but also issuing recommendations to strengthen Equality Bodies in specific countries, as I have done for example in Estonia, Bulgaria and Moldova.
I welcome recent efforts to strengthen standards on the status and work of Equality Bodies, including the European Commission against Racism and Intolerance (ECRI) revised General Policy Recommendation nr 2 and the European Commission Recommendation on Equality Bodies, dating both from 2018, as well as EQUINET’s project to encourage the implementation of these standards. Member states bear the main responsibility for ensuring that Equality Bodies conform to these standards, as a way to respond to the challenges above and to secure a stronger impact for them.
The consequences of the COVID-19 pandemic and the recent resonance in Europe of racial justice protests following the murders of George Floyd and Rayshard Brooks in the United States are just the latest demonstrations that equality is not something we can dispense with. When some are excluded, it is society as a whole that is weakened. Equality is the cement that will help us be stronger together. Equality Bodies are tools at our disposal to create more equality. Let us make sure they are robust, independent and equipped so that we can tap their full potential.
Dunja Mijatović
[1] The EU later adopted two further Directives that contain an obligation for EU member states to have an Equality Body, namely EU Directive 2004/113/EC implementing the principle of equal treatment between men and women in the supply of goods and services and EU Directive 2006/54/EC on the implementation of the principle of equal opportunities between men and women in matters of employment and occupation.
[2] Many more COVID-19 actions by Equality Bodies are collected in a comprehensive database on the EQUINET website.
* All reference to Kosovo, whether to the territory, institutions or population, shall be understood in full compliance with United Nations Security Council Resolution 1244 (1999) and without prejudice to the status of Kosovo.