Bold vision, as articulated before the 2010 General Election
Whatever became of the Equality and Human Rights Commission?
You may well ask.
When was the last time you heard about them?
This is an important question, as the Commons will debate on Tuesday this week whether to strip away an important part of their statutory authority.
You'll probably not hear about this in the media, consumed as they are with the Thatcher controversy.
And you'd have to look hard anyway, as the provisions are buried inside an arcane-sounding debate on the Enterprise and Regulatory Reform Bill.
The Lords have already voted against this move.
However, readers will know by now what generally happens when the Government is determined to get its way. Tuesday's debate sees the amendment return to the Commons, where the repeal clause will probably be reinstated.
I shall therefore explain why this is important … starting with some background.
The Equality and Human Rights Commission
The Equality and Human Rights Commission (EHRC) was originally created by the Equality Act 2006. The new commission, which replaced three separate historical regulators for gender, race and disabled peoples' equality, came into being on 1st October 2007.
There were mixed feelings about the EHRC from the beginning.
On the downside, supporters of the former Equal Opportunities Commission (for gender), Commission for Racial Equality, and Disability Rights Commission were concerned about the lack of focus which a single regulatory body would lead to. The EOC, CRE and DRC had all been very successful advocates for rights in their own respective corners and feared dilution of their efforts. The concern was increased by the numbers of specialists in these areas who were shed through redundancy in the three bodies, as the new body recruited from scratch.
On the plus side the new commission promised a unified approach to dealing strategically with a much wider range of equalities, including sexual orientation, gender identity, religion or belief and age. As the name suggests, the EHRC was also to be the UK's home for strategic thinking and education about Human Rights.
The EHRC operated four clear strands of work:
- It created a single national helpline for anyone with concerns about their personal rights, or for employers and policymakers seeking advice about complying with equalities legislation. This was going to be especially relevant when the UK's confusing historical baggage of rights legislation was replaced by a single Equality Act in 2010. The help line operated separately in England, Scotland and Wales (where the laws are different) but was available to anyone for the cost of a local call via an 0845 number.
- The new commission also had the power to pursue strategic legal cases where it thought that the judgement of those cases would advance an important aspect of equalities law. This was not new. The three commissions which the EHRC replaced had varying amounts of statutory power to support important legal cases. What was new was that the EHRC brought some of the best legal minds together in one place, with the ability to bring cases to the courts which might otherwise not have been possible. The textbook example of this was the Sharon Coleman case, which the EHRC inherited from the Disability Rights Commission. The successful outcome of this case led to the incorporation of protections on grounds of association in the Equality Act 2010.
- The EHRC also had a budget to support the strategic funding of voluntary sector organisations, in order to carry out operations which were compatible with the commission's aims. In 2011, for instance, the commission granted £10 million to a total of 61 organisations. The priorities were voluntary or charitable schemes which were: (a) Providing advice and advocacy services; (b) Promoting good relations; and (c) Providing legal advice.
- The other principal mission of the commission was to act as the regulator for Equalities and Human Rights. This meant ensuring, in particular, that Public Sector bodies complied with the Public Sector Equality Duty. In 2010, for instance, the EHRC carried out national research to determine for itself how effectively NHS organisations were implementing the duty. This followed earlier action where the Commission issued warnings pending legal action to NHS Trusts failing to comply with the Race Relations Act (which was still in force at that time).
"The legal advice we have received indicates that the British National party's constitution and membership criteria, employment practices and provision of services to constituents and the public may breach discrimination laws which all political parties are legally obliged to uphold"
Death by a Thousand Cuts
In May 2010 the Conservative and Liberal Democrat Coalition Government took power.
Although both parties had cooperated in passing the Equality Act 2010 in the last week of the previous administration, it was readily apparent from the rhetoric of the Conservative side of the partnership that equalities (and in particular the Human Rights Act) were seen as incumbrences or "red tape" getting in the way of business and weighing down the public sector.
I wrote about the threats at the time and I explained how the Government's strategy worked from several directions at once in a pincer action.
Since then, much of this has come to pass.
- The Government has 'reformed' legal aid provisions, making it harder for individuals to get professional support to obtain redress on their own through tribunals and the courts. Without this, the role of the EHRC's helpline and its support for third sector advice services would be even more important.
- The Government has also 'reformed' the EHRC, cutting the workforce in the process and obliging it to abandon certain activities, such as running a helpline or running big independent campaigns.
- The Government has also talked of 'reforming' the way that Judicial Review actions can be brought to the Courts. Judicial Reviews are often used to challenge the legality or rationality of actions by public bodies.
The EHRC's strategic plan for 2012-15 shows how it has scaled back its ambitions.
The moves taking place in Parliament tomorrow need to be understood within this context.
The attack on Section 3
Parliament will this week be debating Clause 57 of the Enterprise and Regulatory Reform Bill, which proposes to repeal Section 3 of the Equality Act 2006.
The debate is part of a process called "Ping-Pong", where the Commons debates amendments which the Lords have made to their legislation at an earlier stage in Parliamentary process.
The Lords had been persuaded to throw out this particular provision during their debates on what the Commons had previously passed.
The Enterprise and Regulatory Reform Bill is an arcane sounding piece of portmanteau legislation, which is probably why few have really concentrated on what it contains. You wouldn't learn much from the official description either:
A Bill to make provision about the UK Green Investment Bank; to make provision about employment law; to establish and make provision about the Competition and Markets Authority and to abolish the Competition Commission and the Office of Fair Trading; to amend the Competition Act 1998 and the Enterprise Act 2002; to make provision for the reduction of legislative burdens; to make provision about copyright and rights in performances; to make provision about payments to company directors; and for connected purposes
Clause 57 proposes to repeal Section 3 of the legislation which created the EHRC: The Equality Act 2006.
Section 3 of that legislation is quite important as it sets out the actual purpose of the organisation:
The Government has argued in the past that this so-called purposive clause isn't necessary as it doesn't itself DO anything.
Purposive clauses are quite rare in UK legislation. Where they exist, however, they assist the courts in determining how to interpret the legislation they preface, by spelling out the overall purpose of everything else in the Act. If anything is unclear or appears ambiguous the courts can refer back to such a statement to clarify what was probably in the minds of the lawmakers when they passed the legislation.
Lawyers might be too polite to say so but such clauses also act like a burglar alarm for the rest of the legislation. It is difficult to stealthily change the effect of the detailed clauses in the legislation if the effect of removing or amending clauses creates a conflict with the purpose of the whole. The only way around that would be to amend the purpose clause … and that is a dead give-away.
Removing the General Duty clause may not have immediate effect, therefore. However, the danger is in what the removal facilitates by stealth at a later date.
What Parliament had said before
The advice given to the Lords when they reviewed and rejected the change was phrased in a prettier way, of course.
Their Lordships had been reminded of the original purpose of the clause, as explained by the Bill Minister in 2006, Lord Falconer:
"The Bill aims to move us towards a society which reaches out towards its diverse members and communities. It places the emphasis on the positives. The new commission will use its powers to tackle inequality, diversity. the fair treatment of disabled people and human rights, reaching out to a wide audience. It will improve compliance with the law through it enforcement powers. It will benefit public services by embedding human rights at their core. By promoting understanding between communities, it will help to advance a stronger, more cohesive Britain. The new commission will bring a new ethos and style, built on partnership working, responsiveness to stakeholders and to expertise."
Parliament's Joint Committee on Human Rights in its 16th Report unanimously welcomed what is now section 3 saying that it would "serve in practice as a unifying factor in the performance of the commission’s duties."
The original wording of the clause was debated and amended in the House of Lords in 2006, following objections by the (then) Conservative Opposition that it was too broad.
There was no opposition to the amended section 3 in the House of Commons at the time. Eleanor Laing MP (Conservative), who withdrew proposals for minor changes in the wording, said: "the important thing about [section] 3 is that we all admire the aspirational nature of the general duty within it."
What this Government now says
The Government’s Consultation Paper, Building a Fairer Britain: reform of the Equality and Human Rights Commission, GEO March 2011, para 1.8 stated that section 3 "has no specific legal function" and "creates unrealistic expectations…about what the EHRC can achieve."
The Government claims that the repeal of s3 is simply "legislative tidying up" and the "removal of gold-plating".
In its parliamentary briefings (July and September 2012) the EHRC (which knows how to watch its language in public) said that the repeal of s3 is "unlikely to have a significant adverse impact on its work."
However, if the clause does so little (as the Government claims) you would have to ask why they are so determined to remove it.
Professor Sir Bob Hepple, Emeritus Master and Emeritus Professor of Law at Clare College Cambridge argues:
"First, section 3 EA 2006 does have a legal function. In the absence of a ‘purposes’ clause in the EA 2010, the courts and others enforcing the EA 2010, are able to use section 3 EA 2006, as a helpful guide to the interpretation of the single Equality Act., enabling them to fill gaps and to resolve ambiguities. The Labour Government declined to insert a purposes clause in the 2010 Act believing (mistakenly in my view) that this might conflict with specific provisions of that Act , and could involve the ratification of Optional Protocol 12 of the European Convention on Human Rights, a step which successive governments have resisted. However, the absence of a purposes clause in the single Equality Act was less important than it might otherwise have been, because of the general duty of the EHRC set out in section 3 of the earlier 2006 Act. The repeal of section 3 will deprive those applying the law of interpretative principles and will leave equality law rudderless. It increases the likelihood of inconsistencies in the way in which the single Act is applied."
"Secondly, and perhaps even more significantly, repeal will remove the unifying principle to which both the Lord Chancellor and Lord Lester referred when promoting the EA 2006. It will remove the link between equality and other fundamental human rights. "At the core of the EHRC’s general duty , and implicitly underlying the specific rights against discrimination, harassment and victimisation and the positive duty to advance equality as set out in the EA 2010, is respect for and protection of each person’s human rights." Section 3 embodies the same approach as Art 2 of the Universal Declaration of Human Rights, which provides that all "the right and freedoms" embodied in the Declaration are to be enjoyed without any kind of discrimination. The EA 2006 and 2010 seek to overcome the fragmented approach to different strands of discrimination, which has characterized British legislation in the past. Section 3 of the EA 2006 adopts a unitary human rights perspective. That does not raise "unrealistic expectations", as the Government claims, but sets out the nature of the society which the new legal framework seeks to achieve. Repealing that provision will undermine the historic reunification of equality and human rights law which was achieved in the Acts of 2006 and 2010. Section 3 does not imply that the EHRC alone can achieve the kind of society described. Its obligation is simply to "encourage and support" those working for such a society."
"No evidence has been produced that s3 has produced ‘unrealistic expectations’ of what the EHRC can achieve. On the contrary, the importance of the link between equality and human rights was demonstrated in the EHRC’s broad-ranging inquiry into the ill-treatment of old people receiving care in their own homes, which is both an equality and human rights issue.8 The link between the issues is based on s3’s aim of encouraging and supporting a society ‘in which there is respect for and protection of the dignity and worth of each individual.’ Another example is the investigation by the Commission for Racial Equality (CRE), a predecessor of the EHRC, into ill-treatment of black prisoners.9 The Prisons Service’s perfectly valid legal defence to the allegation of discrimination was that white prisoners were treated equally badly. There was, at the time, no equivalent to s3 EA 2006. Conversely, when the EHRC intervened in a case arising in respect of the Public Sector Equality Duty (PSED) of alleged race disproportionality in the application of the use-of-force policy against young detainees, it became apparent that the general duty under s3 was crucial. Had the case only involved the PSED, the Home Secretary could have reconsidered the policy and made the same decision. But the link with s3 ensured that the new use-of-force policy had to be abandoned to the benefit of all detainees. Without s3 this result would not have been possible."
The Professor continues:
"Thirdly, the removal of the duties in s3 will limit the EHRC’s ability to encourage and support voluntary self-regulation. As Baroness Campbell of Surbiton said, s3 ‘reinforces the notion hat the EHRC is doing more than enforcing the law.’10 The Government wants to restrict the EHRC to core law enforcement functions. ‘Bizarrely’ remarked Baroness Campbell, ‘this will stem from a Bill to promote enterprise and growth by reducing the regulatory burden. We risk creating a body increasingly reliant on costly and intensive legal action to have a meaningful impact.’11 Lord Lloyd of Berwick, the distinguished former Law Lord, has challenged the Government’s claim that s3 should be repealed on the grounds that it is ‘purely aspirational’. He points out that the wording of ss 8 and 9 is also ‘aspirational’ but these sections are not being repealed. How can the Government claim that s3 is ‘too broad’ and at the same time say that it contains nothing that is not already in ss 8 and 9?"
He argues that the intended repeal of Section 3 weakens the EHRC itself:
"Taken in the context of severe cuts in the funding of the EHRC and other changes, the proposed repeals are likely to further weaken the EHRC’s case for accreditation by the International Co-ordinating Committee of National Institutions for the Promotion and Protection of Human Rights (ICC) as a status A body in full compliance with the ‘Paris Principles .’ The International Council on Human Rights has emphasized that ‘ the most effective national institutions generally have a broad and non-restrictive mandate’ and an ‘all-encompassing jurisdiction’ as well as ‘adequate budgetary resources’( Assessing the Effectiveness of National Human Rights Institutions, ICC, 2005, p 8). The ECHR’s A status is already being questioned (see the correspondence between the Rt Hon Theresa May MP and the ICC and UN High Commissioner for Human Rights, appended to the ECHR’s briefing, September 2012). The Government should be using this Bill to implement the ICC’s recommendations, and to increase the ECHR’s accountability to Parliament, rather than seeking to restrict its mandate."
A polite translation would be that international bodies are not impressed by the EHRC being reduced to the status of decorative Poodle.
Hepple also stresses why voluntary sector bodies cannot fully replace the functions of the EHRC that have been curtailed:
"Severe cuts are being made in the resources provided to the EHRC, and nearly all the EHRC’s frontline activities are being withdrawn or contracted out to less experienced bodies. It is unrealistic to expect voluntary organizations to take over the promotional work that the EHRC has done in the past, or to work towards the kind of society envisaged in s3 without the encouragement and support of an independent equality and human rights commission. Not only are the resources of those organizations limited, but they lack the experience and authority of an independent statutory agency. It is vital that these duties be retained by the EHRC. The argument that financial mismanagement by the EHRC in its first years makes it necessary to cut back its powers now, cannot be sustained because in the past two years no such difficulties have risen and the Commission is under ‘new management’. In order to retain its independence and to ensure the most effective delivery of its services, the Commission should have the broad aims set out in s3 and the discretion to decide which of its services it can best provide itself and which should be contracted out to other providers."
You could be forgiven for feeling that Bob Hepple's arguments and plea sound rather like the summing up of the Defence before the court decides whether to send the accused down for life.
As I said in my introduction, however, this is possibly a plea that is already too late, as the true objectives of the Government are all too clear.
Looking back, you could be forgiven for wondering whether both the idea of a single equality body and a single equality act may have been a strategic blunder by the previous government, creating a system of regulation that is far more easy to tear down than what preceded them.
One regulator is easier to emasculate than three, as we are now witnessing. And nine Acts of Parliament plus over 100 sets of regulations were probably rather more difficult to demolish than one single Equality Act.
Still, it was good while it lasted.