House of Commons - Communities and Local Government Committee

Select Committee on Communities and Local Government Committee Sixth Report

2 COMMISSION FOR EQUALITY AND HUMAN RIGHTS

9. The CEHR acknowledged "the ambitious timescale for [its] launch and delivery" as its most immediate challenge.[8] Trevor Phillips stressed the "absence of time" as a major constraint, going on to point out that the Government has created the new institution without a Single Equality Act on the statute book and that this "is why things are not quite as straightforward as they ought to be".[9]

10. The Government established a transitional team to manage the merger of three existing commissions—the CRE, the Equal Opportunities Commission and the Disability Rights Commission—and the establishment of the CEHR. This team in turn appointed a number of consultancy firms to take forward different aspects of the transitional work including recruiting a chairperson, commissioners and a senior management team; development of the necessary infrastructure; and the provision of premises.[10] Two consultancy firms have been used in organisational development work. This is a time-critical aspect of the transition as the process of matching staff from the existing commissions to posts within the CEHR cannot start until an organisational design defining the structure, nature and location of posts has been developed and agreed by the CEHR board. Ernst & Young LLP was initially retained but following the appointment of Trevor Phillips as CEHR Chair, it was replaced by Towers Perrin.[11] The CEHR told us that the final organisational design would be agreed by the board in "late June" at which point the job-matching process would commence.[12] This has now occurred.

11. The Public and Commercial Services Union (PCS) stated that "as a result of changes in the DCLG transition team and the replacement of the original consultants engaged to develop the CEHR organisational design, the programme schedule is now running 9 months later than anticipated".[13] The CEHR confirmed the delay, except in respect of the helpline service where an exemption had been made to ensure that its personnel were in place on 1 October, but nevertheless sought to assure us that delays in the organisational design work would "not delay the job-matching process".[14] The Minister admitted that some of the processes had "taken longer than would have been ideal".[15]

12. A number of implications flow from delays in the transition process. Not all staff will be in place on day one. Although it is expected to be operational on time, the PCS questioned how effective the helpline could be without the support of other staff across the CEHR. It argued "the helpline cannot function in a vacuum" and that to be effective it needs to work closely with "law enforcement, campaigns, media and policy teams to identify strategic cases, inform potential investigations, promote campaigns, [and] assist with good practice development".[16] On the basis of these concerns the PCS argued for "a more realistic timetable" for the establishment of the CEHR.[17]

13. The long-term impact on staffing is also a consideration. The existing commissions offered voluntary redundancy to those staff who did not wish to join the CEHR.[18]Delays in establishing an organisational design have meant that employees have been expected to decide whether to accept voluntary redundancy without knowing what jobs will be available in the new Commission, what the grading structure might look like or where in the country they may be located. Anecdotal evidence suggests that uncertainty over a future with the CEHR may have prompted some experienced staff to opt for redundancy who might otherwise have chosen to stay, representing a loss of expertise to the Commission. Some of those opting for redundancy could subsequently be re-employed by the CEHR when its staffing requirements become clear. While this may go some way to recovering any loss of experience and expertise it will also be an unnecessary and costly process: those staff could simply have been matched to posts in the new organisation if the transition process had been more effectively managed. It is inevitable that the uncertainty and delay over the establishment of the CEHR will have lowered the morale of staff in the existing commissions.

14. In June 2007 the Minister confirmed that the CEHR will not be fully operational at the time of its launch: "it will not be doing everything on day one".[19] She expected helplines and a website to be in place on 1 October but stated: "exactly how much of the Commission will be in place and the issues which will be dealt with are not known at this point".[20] It is deeply disappointing that the responsible Minister could, with less than four months left before its launch, offer so little information on the extent to which the Commission will be operational at the time of its launch. It is indicative of a significant failure to manage the transition process.

15. The Commission for Equalities and Human Rights will not be fully operational when it is launched in October 2007. The decision to establish the Commission before a Single Equality Act could be implemented complicated the process from the outset but indecision, instability and delays in Government's management of the transition have also undermined the ability of the Commission to deliver effectively from day one.

16. The CEHR has been allocated an annual operational budget of £70 million. This is more than the combined budgets of the three existing commissions. The Government told us that among the factors taken into account in determining the CEHR's budget were the operational budgets of the existing commissions, the larger remit the new Commission was expected to fulfil and the fact that "clearly bringing Commissions together would lead to some economies of scale".[21] A research report for the EOC suggests that the last of these factors is questionable. It showed that merging existing commissions in Northern Ireland "actually produces little or no cost savings or economies of scale" partly because of the need to develop a cross-equality strand approach.[22]Both the EOC and the Fawcett Society have called for the CEHR to have an operating budget of £125 million with a significant element reserved for supporting individual cases.[23] The PCS argued that the current budget is insufficient and that "without sufficient funding [the CEHR] will be unable to make effective use" of its enforcement tools.[24] It has also argued that there should be "ring-fenced resources for each equality strand".[25]

17. The start-up budget for the CEHR is £24 million. The Fawcett Society has noted that the start-up costs for Ofcom, which brought together five existing regulatory bodies, was £80 million, more than three times the amount provided for CEHR start-up costs.[26]

18. The Minister was "confident that the Commission will have the amount of money to do the job that Government expects it to do".[27]This confidence was shared by Trevor Phillips who told us that, while the Commission could always use more funding, he was "moderately relaxed about the budget" and more concerned with how the CEHR influenced other bodies to "spend their money in the interests of equality".[28] It remains to be seen whether the budget for the CEHR is sufficient.

Remit and role

19. The CEHR's remit is broad and its objectives ambitious. At its launch it will bring together three existing public bodies—the EOC, the DRC and the CRE. As well as assuming their powers, the CEHR will have further powers to enforce legislation more effectively and promote equality for all. Its remit will also cover three equality strands not covered by the existing commissions—sexual orientation, religion or belief, and age. It will also have a duty to promote awareness and understanding of human rights. Trevor Phillips, Chair of the CEHR, explained that if it is successful the Commission would, amongst other things, "become a substantial national institution, the guarantor of standards of decency and fairness in our society and the guardian against injustice".[29]

20. The Government's position, supported by many who responded to the consultation preceding the Equality Act 2006, is that a single Commission will be a "stronger champion for diversity", and more effective in tackling inequalities by bringing all the equality strands together.[30] It also believes that a single Commission for equality is able to tackle more effectively the discrimination on multiple grounds that some may face¯disabled women, for example. The EOC shares this view, arguing that its "recent work on ethnic minority women and employment and on the impact of caring responsibilities and social care on women's employment show how inter-connected different equality issues are".[31]

21. Over and above the case for establishing the CEHR to cover all equality strands a further argument is that it enables a more holistic approach, going beyond the current focus on particular groups. Trevor Phillips argued that this traditional approach is outdated as a number of equality deficits "do not line up neatly with strands", such as equality for carers.[32] We welcome the establishment of a single Commission to cover all aspects of equality. It is a positive development in the battle against unfair discrimination and inequalities.

22. Nevertheless, some continue to fear that the creation of a single Commission risks reducing the emphasis applied to some areas of equality or a degradation in the expertise and resources devoted to them. The PCS, for instance, commented that it is important to ensure that some strands are not prioritised over others in the overall CEHR workplan and resources.[33] Help the Aged argued that disability, race and gender issues could dominate the agenda for the CEHR to the detriment of combating age discrimination, partly because existing commissions will have a strong legacy impact on the CEHR and partly because older people have a "relatively quiet voice".[34]The DRC is concerned that the CEHR may not be able to sustain across its wide remit the focus currently given to the "distinctive features of disability inequality".[35] Indeed, based on these concerns the DRC was successful in persuading Parliament to include provisions in the legislation which ensure that the CEHR will have a disability committee with statutory decision-making powers.[36] The CRE similarly emphasised the priority it had given to tackling segregation and social exclusion and is "concerned that issues of cohesion might become marginalised by an over-concentration on equality".[37]

23. It is inevitable that to some extent the work of the CEHR will be judged against that of its predecessor commissions. Each of the existing commissions has its own track record on casework support for individuals experiencing discrimination which reflects differences in strategic priorities and resources. Each existing commission has different resources at its disposal—the Fawcett Society pointed out that the EOC's budget was half that of the CRE.[38] One of the challenges for the CEHR is to ensure that there is no diminution of emphasis on any one equality strand and one way for it to allay concerns over this outcome would be to monitor and evaluate its strategic outputs, such as casework support, and resource allocations against each equality strand. The Northern Ireland Equality Commission has a statutory obligation to monitor its expenditure on each equality strand.[39] Trevor Phillips stated that "we will monitor, certainly by the six categories but probably by other categories as well, our own output: how we spend our money, who calls us, how many hits there are on our website".[40] Some doubts have been expressed that those strands which are less easy to monitor¯such as beliefs or sexual orientation¯may suffer under this approach. We welcome the commitment made by Trevor Phillips, Chair of the CEHR, that the Commission will monitor its outputs and resource allocations by each equality strand but recognise that there may be difficulties in monitoring for less visible strands such as sexual orientation.

24. Trevor Phillips told us he expected that all CEHR staff, "whether they are in research, on helplines, dealing with strategic and policy wants and so forth, will work across the integrated mandate".[41] This approach appears to have prompted concerns over a possible loss of specialist expertise. The Mayor of London argued,

The DRC stressed the importance of retaining a specific focus on disability in addition to work on generic issues. In particular, it argued that the disability committee, working within the CEHR's overall remit and strategies, should be able to carry out specific functions and, because the distinctive features of disability discrimination warrant a targeted approach, that it should be supported by expert staff and specific resources.[43] The complexity of existing equalities legislation underlines the case for specialist expertise being maintained and developed within the CEHR. However, even if equalities legislation were simplified there would still be a strong case for specialist expertise on each equality strand to explore the reasons for persistent inequalities and to address the distinctive elements within certain types of inequality.

25. The CEHR will be a state-funded organisational advocate for human rights, the first of its kind in the UK. The British Institute for Human Rights (BIHR) laid out a compelling case for placing human rights at the heart of the CEHR's work. It argued that human rights "offer a unifying framework" to bring together all equality strands and to provide the conceptual basis for demonstrating the relevance of the work of the CEHR to all UK citizens, not just to particular interest groups.[44]It sees a human rights-based approach as an opportunity for the CEHR to expand its work to cover groups who may be discriminated against but not covered within the established equality strands framework, groups such as asylum seekers, refugees or carers. The Commission's creation is also an opportunity to tackle the problems of those who face discrimination on multiple grounds.[45]

26. Trevor Phillips stressed the importance of the CEHR challenging common misunderstandings that exist around the use of the Human Rights Act 1998.[46] He told us:

He also stated that human rights are important in providing a framework for resolving conflicts, for example "between those people who think that the interests of their faith may override questions of equality in relation to sexual orientation or gender equality".[48] We welcome the CEHR's role in promoting human rights and its commitment to challenging popular misunderstandings and myths surrounding their application.

27. Current equality legislation prohibiting discrimination against people on specified grounds applies equally across the public and private sector. However the positive duties to promote racial, gender and disability equality of opportunity and to tackle discrimination in these areas apply only to public authorities. The Fawcett Society, among others, called for a greater emphasis on combating discrimination in the private sector where, for instance, women make up only 10.35 per cent of FTSE 100 directors.[49] Part of the CEHR's remit will be to work with the private sector to promote equality and tackle unfair discrimination. The CBI argued that providing "high quality advice for business on diversity issues [and] support when employers inadvertently get things wrong" should be a priority for the new Commission.[50] The need for parity of opportunity in the private sector as well as the public sector is underlined by the fact that it provides an estimated 80 per cent of all employment opportunities in the UK.[51] We agree that the CEHR should work closely with private sector employers to promote equality and tackle unfair discrimination.

28. The Fawcett Society, among others, argued that, if the CEHR is to be successful in reducing inequalities and tackling discrimination in society at large, then it needs to consider discrimination in the home as well.[52] It points out that traditionally efforts to eliminate inequality have focused on issues such as access to employment and individual rights in the workplace but that inequalities experienced in the home, the result of caring responsibilities or domestic violence for example, can also affect experiences, particularly those of women, in more public environments.[53] The EOC included "promoting greater safety, including addressing domestic violence, rape, forced marriage and trafficking for forced prostitution" among its six priorities for the CEHR, thus reflecting a broader approach than one centred on employment only.[54] We agree that the CEHR should address inequalities and discrimination arising from domestic experiences and circumstances and well as those which relate to the workplace.

29. The CEHR will inherit from the existing commissions powers to conduct inquiries, to issue codes of practice, to support individual strategic cases and to settle disputes. It will also be vested with new powers to take up human rights cases, to intervene in court cases relevant to its remit as a third party, and to enter into binding agreements with public authorities on the steps needed to prevent or end discrimination. The Fawcett Society stressed the importance of the CEHR "supporting strategic litigation that deepens equality outcomes including by championing individuals' cases".[55] The PCS also welcomed this development, stating that "having an effective law enforcement function will maximise the integrity and reputation of the CEHR", although it is concerned that the CEHR may have insufficient resources to undertake necessary investigations and strategic cases.[56] On the other hand, the CBI argued that it is important to take enforcement action only as "a last resort".[57]

30. According to the Public Interest Research Unit—a small non party political think-tank—the existing commissions have a poor track record in enforcement. Its research showed that between 1996 and 2006 little use was made of enforcement powers. For example, despite the fact that no other organisations could enforce provisions against discriminatory job advertisements, none of the commissions had used their powers in this area. As a consequence, the unit argued, the majority of discriminators "got away with committing unlawful acts, and that some of the most vulnerable people in the country were left without protection or redress".[58] Trevor Phillips, a former head of the CRE, disputed this analysis, claiming that the existing commissions had used their powers "pretty extensively".[59] Nevertheless he said that the new Commission would focus on strategic cases, including by supporting the legal profession and trade unions, and that the CEHR itself would only "take a very tiny minority of the cases that enter tribunals".[60]The Mayor of London told us that, given the very high number seeking support to challenge discrimination, this "actually means that many people will be denied the necessary legal assistance".[61] Effective action against specific instances of discrimination can be a powerful deterrent to others. We believe that the CEHR's long-term priority should be to prevent discrimination but we welcome its capacity to intervene in strategic cases to support individuals seeking redress against discrimination. The balance between these two functions should be monitored closely.