WRITTEN
EVIDENCE SUBMITTED
BY EQUALITY
AND DIVERSITY
FORUM
The Equality and Diversity Forum (EDF) is the network
of national non-governmental organisations (NGOs) working on equality
and human rights. The network unites some of the major national
NGOs tackling discrimination on the grounds of age, disability,
gender, gender identity, race, religion or belief and sexual orientation
together with leading human rights organisations and advice agencies.[102]
We welcome this opportunity to comment on the Government's Equality
Strategy, the Public Sector Equality Duty (PSED), the Equality
and Human Rights Commission (EHRC) and the recent announcement,
during the course of the budget, of the non-implementation of
the Equality Act dual discrimination provision and of a wider
review of regulation.
EDF members identify their common policy views on
a consensus basis and this submission summarises some of our most
significant current concerns. Because of the short time available
in which to make the submission, it has been drafted by EDF's
secretariat without direct input from individual member organisations.
SUMMARY
We welcome the fact that the Coalition Government
has published an equality strategy and has appointed a Cabinet-level
Minister to lead equality policy, supported by a team of junior
ministers. We note that in some areas, such as lesbian, gay, bisexual,
transgender (LGBT) equality, specific programmes of work have
now been published. However, we have a number of concerns and
these are growing. In particular:
— We
are very concerned that aspects of the Budget announcement earlier
this month treat equality measures as a burden rather than a benefit
and by the proposal to review all equality and employment regulation
with a presumption that it should be removed;
— We
are concerned that proposals to reform the EHRC may threaten its
independence and may remove important aspects of its remit;
— We
are concerned that the late removal of most of the specific equality
duties that the Government had proposed in January 2011 will leave
public authorities with the (incorrect) impression that they do
not have to do much in order to comply with the public sector
equality duty; and
— We
believe the Government's equality strategy is weak in some areas,
such as race equality.
GOVERNMENT'S
EQUALITY STRATEGY
We welcome the fact that a cross-government equality
strategy document has been published and a commitment given to
monitor progress against specific targets. We were also pleased
to see that an inter-ministerial committee chaired by the Home
Secretary is overseeing implementation of the strategy. However,
we are concerned that the strategy and commitments are weak in
some areas, including race, religion or belief, disability and
age. We recognise that there are differences, sometimes considerable
differences, in the experiences of people who share what the Equality
Act 2010 calls a "protected characteristic". To be effective,
policies need to take positive account of the fact that people
from ethnic minorities or disabled people are not homogenous groups,
but they must also recognise that it is not just a question of
saying "every individual is different". Extensive evidence
shows that systemic barriers affecting particular groups exist[103]
and need to be addressed.
We welcome the fact that the cross-government equality
strategy treats tackling discrimination and inequality as of benefit
not just to individuals but also to business, public bodies and
society as a whole. However, the implication of announcements
in the "Plan for Growth" published as part of the recent
Budget is that the Treasury and the Department for Business, Innovation
and Skills (BIS) view equality rights as a burden on business.
We believe there is good evidence available to support the view
that equality is a benefit rather than a burden (some of it available
in research commissioned by BIS) and are concerned that the Treasury
and BIS appear not to be aware of this.
PUBLIC SECTOR
EQUALITY DUTY
The EDF is very concerned about the recently announced
late changes removing large elements of the proposed specific
equality duties. Public authorities will still have to meet the
requirements of the general equality duty in section 149 of the
Equality Act 2010. Limiting the specific duties to a nominal level
will not provide sufficient clarity for public authorities as
to how they should meet their general equality duty. Additionally,
there is a clear risk that public bodies are being given the inaccurate
impression that they do not have to do much in order to comply
with the equality duty. This could seriously undermine the Equality
Strategy's stated goal of embedding equality into all areas of
public policy.
These risks could be reduced if:
— Ministers
make clear public statements that the changes to the specific
duties in no way reduce the effort and commitment that need to
go into achieving the three equality duty goals of eliminating
discrimination, advancing equality of opportunity and fostering
good relations; and
— The
Equality and Human Rights Commission publishes a statutory code
of practice giving clear guidance based on case law about what
is involved in meeting the requirements of the general equality
duty.
We recognise that, as part of the Government's localism
policy, some functions and decisions are being decentralised from
central to local government. If the localism policy is to contribute
to the government's equality strategy (and vice versa), it is
essential that appropriate protection for minority groups is built
in. We are therefore very concerned about the far reaching powers
proposed in clause 5 of the Localism Bill that permit the Minister,
by order, to "amend, repeal, revoke or disapply" any
statutory provision that s/he thinks "prevents or restricts
local authorities from exercising the general power". This
extensive power is dangerously broad and could be used to disapply
important statutory provisions, such as the public sector equality
duty, with minimal parliamentary scrutiny. If ministers are concerned
that particular statutory provisions conflict with a general power
of competence for local government then they should bring forward
public proposals to amend the provisions in question, not take
powers to disapply almost any provision with little parliamentary
scrutiny or public engagement.
EQUALITY AND
HUMAN RIGHTS
COMMISSION
EDF supported the creation of the Equality and Human
Rights Commission (EHRC) and argued for it to have a robust remit
and powers. Since its creation we have sought to work closely
with the EHRC but also to hold it to account when appropriate.[104]
We recognise that the EHRC has not yet achieved what stakeholders
hoped for when it was created and that it has experienced a number
of governance and management difficulties. Nonetheless, we think
it is vitally important that the EHRC retains its independence
and has the remit and powers to enable it to be an effective body
that both promotes and enforces equality and human rights.
We do not believe that ministers have made a good
case for changing EHRC's remit and are concerned that the changes
they have proposed will tie the EHRC too closely to a relatively
narrow legal compliance role. We are also concerned that some
of the changes they are proposing may fetter the EHRC's independence
and that their proposal to remove funding for specified parts
of EHRC's current work may result in a fall in support for vulnerable
individuals facing discrimination.
The EHRC was established by the Equality Act 2006
after extensive debate in both Houses of Parliament and the sections
of the Act which dealt with the EHRC were passed with all party
support. The parliamentary debate followed a lengthy process of
consultation with relevant experts that took into account both
European requirements[105]
and International requirements[106]
for such bodies. In particular the UN Paris Principles (paragraph
3a) require that a national human right institution, such as the
EHRC, should be able to:
Freely consider any questions falling within its
competence, whether they are submitted by the Government or taken
up by it without referral to a higher authority, on the proposal
of its members or of any petitioner.
The EHRC is accredited by the United Nations as a
national human rights institution. If it is retain this accreditation
it must remain independent of ministers (and others) and it must
also retain powers that enable it to promote human rights (including
equality) as well as take enforcement action in relation to them.
It would be highly embarrassing for Britain if the EHRC's UN accreditation
were to be put at risk.
Extensive and recent evidence points to persistent
and deep-seated problems of inequality in our society.[107]
The scale and nature of the challenges around equalities and human
rights currently mean we need a body that has both promotional
and enforcement remit powers. We can see no reason why it makes
sense to narrow the EHRC's equality remit, as the Government proposes
to do, and to remove those parts of its equality remit that recognise
that advancing equality of opportunity and supporting diversity
are beneficial in themselves and not merely legal requirements.
The Government's proposals to remove the EHRC's budgets
for grants to facilitate legal casework need to be considered
alongside the proposed reforms to legal aid set out in the Ministry
of Justice's consultation document.[108]
Whilst the fact that legal help is being retained in discrimination
cases is welcome, we are concerned that removing legal aid for
other linked housing, employment or welfare rights cases will
effectively result in a substantial decrease in the number of
advice providers and consequently potential clients will find
it hard to get information and advice on their rights. In addition,
many discrimination cases arise out of or in connection with other
legal claims such as housing, employment or welfare benefits.
If it is not possible to obtain funding for these parts of the
claim it will be very difficult to take action to pursue the discrimination
claim yet the GEO's consultation on reforming EHRC suggests that
"instead of continuing to provide a separate funding stream
for legal advice and advocacy on discrimination cases, we propose
that support is solely delivered through civil legal aid".[109]
The overall result of these changes will make it much harder for
people to bring challenges under the Equality Act 2010.
EQUALITY ANNOUNCEMENTS
MADE AS
PART OF
THE BUDGET
We greatly regret the announcement during the course
of the Budget earlier this month of the decision not to implement
the dual discrimination provisions as they are alleged to be a
"burden on business" and the message given by aspects
of the budget package that equality is a burden rather than a
benefit. When people are treated badly or unfairly because of
a combination of protected characteristics they, not unreasonably,
expect to be able to seek a remedy in the courts. We consider
that the law needs to be able to take account of the complexity
of life as it is really experienced by people and it needs to
be able to reflect the discrimination that has actually occurred.
The dual discrimination provisions need not be difficult to understand
or burdensome for employers to comply with and would more accurately
address real problems that people are experiencing on the ground.
We are also very concerned, as indicated earlier,
that aspects of the Budget announcement treat equality measures
as a burden rather than a benefit and by the proposal to review
all equality and employment regulation with a presumption that
it should be removed. No detail is yet available about how this
review of regulations will take place but those at risk appear
to include regulations on the right to request flexible working,
which have been widely recognised by employer and employees as
adding considerable value and which the Government had previously
pledged to extend.
March 2011
102 EDF members: Advice UK, Age UK, British Humanist
Association, British Institute of Human Rights, Children's Rights
Alliance for England (CRAE), Citizens Advice, Discrimination Law
Association, End Violence Against Women Campaign, Equality Challenge
Unit, EREN-The English Regions Equality and Human Rights Network,
Friends, Families and Travellers, Fawcett Society, JUSTICE Back
103
How Fair is Britain?, EHRC, 2010 and Anatomy of Economic Inequality
in the UK: Report of the National Equality Panel, Government Equality
Office, 2010 are rich sources of evidence Back
104
EDF gave evidence to the JCHR Inquiry into EHRC in 2009 Back
105
Council Directive 2000/43/EC and Directive 2006/54/EC of the European
Parliament and of the Council, 5 July 2006 Back
106
Office for the United Nations High Commissioner for Human Rights,
"Principles relating to the status and functioning of national
institutions for protection and promotion of human rights". Back
107
See sources cited in footnote 2. Back
108
Proposals for the Reform of Legal Aid in England and Wales, November
2010. Back
109
Building a Fairer Britain: Reform of the Equality and Human Rights
Commission, March 2011. Back
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