Examination of Witnesses (Questions 360
MONDAY 1 JULY 2002
360. That is what I am asking about.
(Mr Singh) There is that view, but what is equally
fascinating is that the Human Rights Commission in Northern Ireland
perceive themselves, if I may say so, as a Cinderella organisation,
and the people who run that Commission would be very much happier
being within the equalities domain, i.e., within a single institutional
structure, whereas the Equalities Commission does not believe
that that is helpful. Your point about resources is fundamental.
If we are going to have a revised organisation and revised institutional
structure, whether it is human rights or a single equalities organisation,
we need to be adequately resourced in order to deliver.
(Mr Massie) If you talk to people, as I do, from the
Equality Commission in Northern Ireland, they will tell you it
is all wonderful, and I respect what they are saying. That is
not what I hear from disabled people.
361. This is what I am asking about.
(Mr Massie) I always take my line from what disabled
people tell me, because they are the experts on it. I understand
they did have a staff of about twenty people, but that has now
been reduced to five. You could argue that this is a good sign
as far as integration is concerned, but you can also argue that
this loses some of the focusand you can take it either
way. I will just make a number of points that are not really disputed.
There are more disabled people in Great Britain than there are
people in both Ireland and Northern Ireland. The dimensions of
the problem are probably even more diverse in some ways. If you
join all the Commissions in this country, as in Northern Ireland,
it would certainly need to be resourced properly. Whenever bringing
bodies together is raised, it would be surprising if somebody
in the Treasury was not thinking that there might be some cost
savings. For this to work with the new strands and the new rights
coming into effect in 2004 anyway, you are probably talking about
a much larger budget. If this is going to work, you should be
piling more money in. This will not work as a cost-saving exercise.
If it does, it will be a disaster. Even if the Government is minded
to resource this proposed organisation properlyand we have
no guarantee they willthe provisions in the Act of Parliament
that establishes it are critical. We have already found with the
DRC Act that there are areas where we know disabled people are
experiencing a pretty appalling time. We cannot do anything; we
have to sit back and say: "Sure, we know it is rough and
abysmal, but, alas, Parliament has so decreed." Let me give
you two examples to show the problem. We know of a director of
her own company with spinal atrophy. She is a qualified solicitor.
She went into hospital with a chest infection. To her horror,
she found that a doctor had placed on her notes, "do not
resuscitate". Perhaps he could not imagine that a woman as
profoundly disabled as this women is could make a valuable contribution
to society and enjoy life. We cannot act on that as an issue of
human rights. We have another case of a lady who needs to do what
we all do, to go to the lavatory. She cannot get upstairs to the
lavatory. We have the technology. You put in a stair lift. It
ain't that tough, but her local authority said: "No, you
must use a commode in your living room and somebody else can carry
the container upstairs later." That is undignified and distressing.
There is another example of a care agency: because they want to
make sure the woman is spending the money correctly, when she
has a washand her neighbours do that for herthey
insist on standing and watching. It is undignified, and we cannot
do anything about it. This is everyday life for disabled people
in this country. It is not just about ramps into buildings; it
is about the dignity that we, as a society, believe disabled people
should be afforded. In many cases, we are not doing it. We are
not resourcing it. The DRC cannot do anything about it. There
is a danger that the new body will be launched with a great fanfare
of trumpets, like the launching of a ship, and it will sink as
soon as it gets into the sea because the powers will not be there.
It is critical that the Act of Parliament is written extremely
carefully to include powers that will give people a decent life.
(Ms Mellor) I should like to pick up on the resource
aspect of your question. One of the seven principles that we have
suggested to Barbara Roche should be used in her project, in testing
the visibility of the single equality body, is around resources.
The resources for the six strands on equality should be at a level
that supports the current level of activity that is currently
followed on three strands, for all six. The Equal Opportunities
Commission would argue that it needs to be additional because
one of the reasons we have not used our enforcement powers to
do investigations over recent years is because we have not had
funds. I do not know if you have the comparative situation. We
have 7 million; Bert has about 11-12. We do not have the flexibility
within the year to launch an expensive investigation, as the CRE
had to do recently with the prison service, which was up to £1
million. On a £7 million budget, we do not have that flexibility.
We think that is one of the seven principles that should be applied
in development of a single equality body. There might be something
similar if you are looking at a human rights commission, or an
integrated human rights commission. I am happy to send on the
letter that we sent to Barbara Roche, which describes the seven
principles and elaborates on their importance.
362. My question is about how you see your role.
To what extent do the human rights principles inform the equality
agenda for you; or are human rights and equalities in separate
boxes? Do you see the Human Rights Act as just about civil and
political rights, or do you see the "culture of rights and
responsibilities" which was supposed to follow from the Act
as creating a new framework within which measures to promote equality
and diversity have to be evaluated?
(Mr Massie) The DRC see it as integral. We have just
brought a case to judicial review, and this was about lifting
policiesthat people could be lifted who were no more than
six stone, and that catches out most people. We tried to change
that. Had we had the human rights power, we would not have spent
so long using some rather clever lawyers to find a way of using
the powers we did have. It is not just about the life-and-death
issues; it is about the right to participate. Some of the areas
where disabled people's human rights are limited are literally
Victorian in many cases. We do see there is a whole agenda there
which we would very much like to be promoting. We do link it very
much with the equality/human rights agenda.
363. How far do you take into account your international
obligations which are not covered?
(Mr Massie) We obviously have obligations as an organisation,
but we have not really contributed much to the international arenawe
are two years old, as I say. In the disability movement there
is a growing movement for a UN convention on the rights of disabled
people. Through DRC membership which links with the European Disability
and Rehabilitation International Forum, we are very much supporting
that initiative. It would not have a devastating effect on this
country because most of the rights that would be introduced by
that convention are already in domestic legislationnot
all, but most. Nonetheless, it would help people in this country
if they go abroad. There is a huge range of things that would
be very helpful. We think that anyway we should be promoting issues
about which we are concerned in relation to the world-wide disability
movement as far afield as we can, given our limited resources.
364. Do you find comment on the Government's
reports to the UN under these or other instruments?
(Mr Massie) We have not so far. We would like to build
on our capacity; it is simply a case of building up. We are just
a young organisation so we put our efforts where we think we can
make an immediate impact on disabled people.
(Mr Singh) The view we take is that there is a significant
degree of overlap between equalities and human rights matters,
but there are also some important and significant differences,
and we need to acknowledge both. Clearly, the Race Relations Act
as amended and the Human Rights Act impose obligations on public
authorities as well. Compliance with both Acts can call for similar
approaches. There are also differences because human rights is
more than just about equality and concerns fair trials, privacy,
freedom of expression and those sorts of matters. Human rights
govern the relationship between the state and the individual whereas
in terms of race that is not necessarily the case. There are issues
about the state and individuals but much of it is about individuals
as individuals or against private sector organisations. There
is actually a difference. We attempt to try and pick it up, but
it is difficult, frankly, given the agenda of the Commission,
which is principally about an amended Act, where the major positive
duty is perhaps the single principal focus of the organisation.
That is the key driver for real change. Perhaps we are failing
in that respect. Certainly, our focus has been about new legislation
and the extent to which we discharge new responsibilities. That
has been the principal focus of our work. I do think that if we
are to get this right in future, then we need a much more rational
and consistent approach.
365. Do you take account of international instruments
that are not covered by the Race Relations Act?
(Mr Singh) We do not take it into account in a systematic
wayit would be false of me to say otherwise. There are
some efforts to look at this. Generally, we do not. That is very
much an honest view and I would not want to try to mislead this
366. You do not even comment on the Government's
reports to the UN. You have never done that.
(Mr Singh) Not in the way that we should. We have
been involved in debate and discussion, but not to the extent
that we should.
(Ms Mellor) Taking the first part of your question
as to whether we take human rights principles into account, we
do absolutely. We think they form a great part of our work because
equality is part of human rights; it is an aspect of the overall
human rights agenda. In terms of what account we take of the international
conventions, I, like Gurbux, would say that we do not take a huge
account of it, partly because CEDAW, for example, does not create
enforceable individual rights in the UK and partly because the
issues that we currently focus on are generally fully addressed
under the Sex Discrimination Act without EU law, and CEDAW adds
very relatively little. However, having said that, CEDAW plays
a big part in our consideration of our work on getting more women
into political life recently because it informed the work to argue
for and then support the changes in the law to allow political
parties to use special measures to boost the number of women candidates,
and CEDAW came into that.
Lord Lester of Herne Hill
367. I need to declare one or two interests.
The one that has been mentioned is my special interest in the
CRE and EOC as counsel and also, as I am sure the witnesses know,
with Bob Hepple in work in the Single Equality Bill. I should
like to summarise what I think is the highest common factor of
your evidence, rather than the lowest common denominatorthe
architecture problem about an equality commission and a human
rights commissionand then see if I have got it right. All
three bodies gave evidence last July that they were in favour
of a human rights commission with compliance powers. I assume
that that still stands. As I hear you today, the EOC and the CRE,
with the strong dissent of DRC, are broadly speaking in favour
of an equality commission, provided that the specialist non-discrimination
sections would be properly reinforced and preserved without a
hierarchy of rights. Thirdly, all bodies are in favour of being
able to deal with the wider human rights dimension of your work
whether or not there were a human rights and equality commission,
or a single equality commission, or lots of separate equality
commissions. If I can summarise the position, you are less sure,
and perhaps less keen, on having a human rights and equality commission
than you are on having a Northern Ireland or Republic of Ireland
solution of having an equality commission side by side with a
human rights commission. Can I just see whether I have got that
right or wrong before asking you the other question?
(Mr Singh) There may be some confusion about what
I said. Most certainly, we are very comfortable with an equalities
commission, but we are also very comfortable with sitting alongside
a human rights commission. In fact, we would go further than that;
we believe that a human rights commission is essential if we are
to have a serious impact in this country on human rights. Will
it create the sort of human rights framework and culture that
we all want to see? That will not happen unless an institution
is in place. We would see them side by side. The only point that
I would add to that is that if it were the case that that human
rights commission was not a runner or was not on the agenda, but
that a human rights component within a single equalities body
was, then in that context the CRE would be persuaded to re-visit
its view about supporting that line.
(Ms Mellor) On the point about a human rights commission
and being in favour of it having enforcement powers, there is
the question of what is meant by "enforcement powers".
368. Similar to the EOC's powers.
(Ms Mellor) We would need to look at what is actually
necessary within the range of what we have and the range of what
we would like, and within that range there may be some that are
more appropriate for a human rights commission, so I would not
just say "move that across and have it exactly the same".
I would like to stress that one of the things we have learnt from
25 years' experience in the Equal Opportunities Commission is
the necessity to have both enforcement and promotion, because
one without the other limits you. On your last point about which
models we are keen on, I would say something different to what
you suggested. We see three models around at the moment: one is
the separate human rights and equality commissions; another is
an integrated equality and human rightsand what was underneath
that would have to be looked at in some detail; and the third
is the umbrella model. The Equal Opportunities Commission is less
keen on the third, but think that both of the first two models
could be made to work.
(Mr Massie) The DRC would prefer to see a separate
human rights commission with a full range of powers. If the Government
is not minded to do that, then we would rather see it brought
into whatever body they create. I gave you examples earlier of
disabled people who probably have a case under the Human Rights
Act, but because they do not have the resources to bring a case,
you have a piece of legislation which is meaninglessit
is about as much use as a ton of whipped cream at a Weightwatchers
Convention. It needs somebody to support it. Most disabled people
are on state benefits and do not have access to the law. That
is why, as a nation, we need to say we believe our citizens will
be protected; and by that we mean by some sort of agency with
(Ms Watson) Can I elaborate on something that Julie
said about enforcement and promotion of powers. Probably for all
of us, but certainly for the EOC, there is a limit to how much
you can change the culture of institutions if you do not have
promotional powers because you cannot get across a proper understanding
of the principles that lie behind your legislation. Enforcement
powers are important, but promotional powers are as important
because without them you cannot communicate to the people to whom
you want to say in the first place, "these are your rights;
take advantage of them", and in the second place to say,
"and also you have responsibility to respect others' rights".
The two go hand-in-hand, and I would not want to say that enforcement
is more important.
369. Unlike most countries we do not have a
general constitutional guarantee of equality, a free-standing
one. We do have Article 26 of the International Covenant on Civil
and Political Rights, which is not part of our law, and we have
the proposal for Protocol 12 of the European Convention on Human
Rights, which would be the samea free-standing guarantee
of equalitywhich the Government is unwilling to adhere
to. If you had a single equality commission, or, for that matter,
some variant of that, would you be in favour of it dealing only
with the specific text of the anti-discrimination law, read with
European Community law, or would you like it to be able to deal
with a more free-standing guarantee of equality that went beyond
the specific kind of unlawful discrimination that is there already,
which would be the effect of using Article 26 of the ICCPR, or,
if we ratified it, the 12th Protocol? I hope that my question
is not too legalistic and that you understand it. Are you in favour,
in short, of going beyond the highly prescriptive technical language
of your own mandates in your own anti-discrimination legislation,
read with EC law, to a free-standing guarantee of equality; or
would you prefer the equality commission or commissions to have
(Ms Watson) We would look at it in the light of the
changes that were proposed but specifically in relation to Protocol
12, if the Government ratified it, it would be a useful thing
to have. It would mean that you had a free-standing right that
would enable you to challenge discrimination, and that would be
very helpful in enabling organisations to understand the changes
in their culture that they need to make, and it would be possible
to take a case using that. It would make it very clear to everybody
the kind of systemic change that we need to see for those services
to be delivered in a way that meets people's obligations.
(Mr Massie) I would support that answer. Article 26
has the advantage that it covers a number of grounds not currently
covered by British law. It does not deal with disability explicitly
of course, but we assume it would doit is another example
of being sidelined, but it happens all the time. If we had Protocol
12 my gut feeling is that we should concentrate on that but that
it could go much wider in its first years. That would be open,
obviously, to consideration later.
(Mr Singh) The CRE's position is different from that.
We regret that the Government has not implemented Article 12 and
we most certainly support and welcome ratification of Article
12 and the wider agenda.
370. I should like to declare an interest. I
carried out a consultancy with CRE some years ago. Jenny Watson
mentioned promotional powers but it is only in the Race Relations
Act that there is a statutory duty to promotea positive
duty. I would like to ask Gurbux Singh, first of all, what has
been the effect, if any, so far on public bodies. How have the
public authorities reacted to this new duty? In answering that,
can you turn your mind to saying whether this is the way to create
a culturethrough a positive legal duty?
(Mr Singh) Ultimately, we are trying to change the
behaviour, the culture, of organisations to deliver genuine equality
to all. I think that the positive duty is one of the most significant
things which Parliament has delivered. It has the potential to
deliver a step-change in which the public accept responsibility.
For the first time there is now a duty. Whilst we may have some
disagreements about the rather mechanistic nature of that duty,
the duty is most certainly there and that duty is enforceable.
Those are the two most significant things: there is a formal duty
and it is enforceable by the CRE, if necessary in the courts.
I believe it has the potential to deliver some fundamental change
across public institutions, whether Whitehall, the National Health
sector, education authorities or local authorities.
371. A change in culture?
(Mr Singh) Yes, but what we are concerned about ultimately
is outcomes. What actually happens as a result of the huge amount
of activity which public bodies now have to engage in? It is not
about the production of nice little glossy reports by 44,000 public
bodies in this country; it is ultimately about the outcomes that
those processes deliver for a fairer workforce; services that
are more fairly and equally delivered to all sections of the community;
policies that are understood across the whole of the public sector;
whether we get a much more reflective and more genuinely reflective
public sector reflecting modern Britain. I think that this Act
has the potential to deliver that. It will require some serious
leadership on the part of the public sector and it will require
those agencies and inspection bodies across the public sector
to build into their inspection activities, race and equality.
The CRE is certainly not in a position to effectively police the
public sector. Inspection bodies police the prisons, the probation
service for example. The Audit Commission has a very important
role to play. My view is that whilst it is early days, we can
learn lessons from Northern Ireland, and those lessons are very
much that the new duty is beginning to have a real impact. It
is manageable and is beginning to have an impact. It is beginning
to change the hearts and minds of people.
372. Can you give me examples of public bodies
that have reacted?
(Mr Singh) The Crown Prosecution Servicethey
are looking at employment practices, at how the organisation looks
in a race/ethnicity context and then looking to see how to change
that, because it is one thing to establish the facts but it is
another thing to change the inconsistencies. There are some real
examples of that. I have looked at race equality schemes that
are incredibly impressive, which have led to targets being set
in terms of employment and delivery. That is the way of the future.
It is vitally important that the promotional aspects of equality
work is not de-coupled from law enforcement. There is a debate
going on, which you can pick up in certain quarters, and there
are intentions to de-couple promotional aspects. That, from my
perspective, would be a disaster. It is vitally important that
the two remain together. If you want to see a sustainable change
across the disabilities area and gender issues, it is crucial
that that duty is extended to those areas. There is no doubt in
my mind that that must be the case.
373. You have almost answered my next question.
I was going to ask Ms Mellor and Mr Massie: you have not got a
positive duty in your own field of responsibility and there is
not a single equalities act, so will you be coping less well in
the absence of both of those?
(Mr Massie) The Government has said that it will introduce
new laws for disabled people, and one that places a positive duty
on public authorities to promote disability equality. We look
forward to receiving that timetable. We do not know when that
will happen, and there is a range of other recommendations from
the Disability Rights Task Force which the Government also said
it would introduce. When it comes to a single equality commission,
we have this basic problem: with disabled people, it is not a
case of saying, "we have the rights"; all we need now
is a body to educate and enforce. We are nowhere near that stage
yet. We are still at the stage that some of the bodies were at
20 years ago, saying, "we still do not have the rights".If
the single equality commission is formed on the current basis,
disabled people will step back quite a number of years in influence
and in pushing this agenda. Lord Lester referred to Professor
Hepple and the Professor produced a report two and a half years
ago, I think, to which Lord Lester wrote the foreword, and that
report did raise the issue of a single equality commission. Now
that was not a throwaway lineit was quite well worked outbut
it said, first of all, that there should be a single equality
act and once you have that then the single equality commission
makes sense because you have equalised the rights. Now, in another
place I have said having the single equality commission without
the single equality act is like having a cart with no horse, and
I think there is a real danger there. I think also, if you do
not have that, then there will inevitably be a hierarchy of rights
within the new commission. We can talk about identities, etc,
but people want to choose the identity which gets them round a
particular bit of the law and it would be totally disruptive.
If the government would bring forward the legislation, first of
all, on rights, bring forward the single equality act, then a
lot of DRC's anxieties about a single commission would evaporate.
(Ms Mellor) I would reinforce absolutely what Mr Massie
said: it would obviously be a profoundly serious limitation on
the potential effectiveness of the single equality body not to
have that public sector duty applyingnot just to gender
and disability but the three new strands as well. The government
is committed to introducing that duty when legislative time permits
and we look forward to them taking prompt action in doing so,
and the reason is that we have learnt from our 25 years of experience
that individual rights stick with individuals, and to promote
the systemic change that will deliver equality and the culture
of equality and human rights takes a more systemic legal tool,
which we think that duty is. In terms of the form the duty takes,
I think we now have three different models to look at experience
of: one is the Northern Ireland model; another is the Race Relations
Act model and the third is the very general duty to promote equality
that the Welsh Assembly has under its constitution, and certainly
on gender that is where we found that duty combined with political
commitment has led already in its short life to a significant
impact on issues like equal pay.
374. Perhaps I could ask you whether you consider
that any Human Rights Commission should be primarily concerned
with compliance or with pre-emption?
(Mr Massie) The experience we have had, and we have
seen it with others, is that it is essential they have both. If
you can promote what a law means and you inform people of what
rights and obligations that law imposes then, firstly, you reduce
the likelihood of people breaking it but secondly, if they do,
it means you can at least talk common language in the enforcement
so I think the two go together in harmony and persuasion without
enforcement simply will not work, as we discovered with seat belt
legislation. Law alone without bringing people on board will also
(Mr Singh) I think the same; essentially it is both.
The law has an important role to play but promotional work equally
balanced out has a fundamental role to play. If we are to deliver
sustainable change then promotional work is profoundly important.
(Ms Mellor) Perhaps I could build on our experience
of the impact of our promotional responsibilities in our recent
work on equal pay because there I think, while enforcement is
an important lever, what our promotional work has done has got
equal pay back on the agenda of politicians and employers, and
although it has not come off the agenda of trade unions, it is
actually much more fundamentally a part of their bargaining agenda,
and we have done that through promotion, getting people aware
of the problem, engaging leaders in committing to solve it, capacity
building, producing tool kits, working with people to use those
tool kits and doing research to measure progress and making people
aware of the problems as we go. On pay, at this stage in time,
if we only had the enforcement role we would not have succeeded
in getting it back on the agenda in that way.
(Ms Watson) I think there may be a parallel there
with the idea of the Human Rights Act and positive obligations
where public authorities do need to understand the positive obligations
they have and so the range of tools that we and others have developed
working with, whether it is employers or public sector, would
have relevance there because that does engage people in understanding
it and seeing how they can comply it within their organisation.
Lord Lester of Herne Hill
375. In approximate terms, what proportion of
the budgets of each of the commissions is devoted to assisting
individual cases or compliance in the sense of formal investigations
as distinct from the wider promotional activities? What does that
tell us about the priority attached to the enforcement activities
in each commission?
(Mr Massie) When you say it is an enforcement, it
has to be put in context because our helpline handles 80,000 calls
a year, and then we have case workers behind that and we have
set up a conciliation service to keep things away from courts,
if we can, but we bring about 70 legal cases a year. In the promotion,
we have already produced a code of practice for the access duties
in 2004, and next week we will produce two codes of practice for
education and quite a lot of work is going on at the moment in
leaflets and talking to the teachers' unions, etc, about the new
duties that will come in from September of this year. So the two
lines do need to go together; it is the only way we can really
get progress. What we have found with the education codes of practice
is that, from where we started doing this last year, by working
with all the stakeholders in the education field including disabled
people and disabled young people, we know they will be welcomed
because all the stakeholders have been involved in writing them.
That is very important because, when they come to be used in tribunals
or boardrooms, we know people will be on board with the basic
376. I was really asking a factual question
with the judgment at the end of it. It may be the best way would
be to answer in writing but it would be helpful to know, roughly
out of a budget of X, how much is spent on existing cases and
on formal investigations and what it says about priorities.
(Mr Singh) We are just reconfiguring the budget and
the figures break down as follows: 15 per cent complaint aid,
25 per cent law enforcement and formal investigations, and 45
per cent promotional work. The rest would be support service costs
for the organisation.
(Ms Mellor) In terms of staff employed in our legal
and advice section plus non pay elements of budget devoted to
that work, like outhouse solicitors and barristers, it is roughly
£1.25 million out of a £7 million budget. On top of
that, in terms of making people aware of their rights and transferring
our expertise to other lawyers who may be providing advice and
representation to individuals, we use our helpline and our website.
We are developing a specific website for lawyers, and we are running
a campaign this year, for example, on rights and responsibilities
for both employees and employers to understand the framework of
rights, so there is additional expenditure that relates to our
enforcement activity but those are the specific figures for the
(Mr Massie) We spend twice as much on promotion as
we do on enforcement.
377. Before leaving that, is it not really correct
that, looking back over quarter of a century's experience, none
of the commissions ever have taken strategic law enforcement in
the way the original White Papers envisaged? That there has been
a general reluctance to use all the powers and to do it in other
ways? This may be right or wrong, but would that be fair?
(Mr Singh) I think you may be being slightly harsh
378. I was not being harsh.
(Mr Singh) Sorry. It was a question. I think if you
look at the CRE's work you could look at over 100 formal investigations,
some of which have been hugely strategic. I remember one investigation
into the London borough of Hackney's allocation policies in the
early 80shugely strategic; a major issue which I think
led to serious change across the public sector and there were
many investigations like that, so I would say that we have used
law enforcement powers at a strategic level to secure real change.
At times it does not appear to be that systematic but most certainly,
in the early days of the 25 years, it was the case that we used
law enforcement very effectively.
379. I would like to pick up on some of the
gaps in human rights' protection at the moment. When the Human
Rights Act was introduced the government talked about wanting
to create a culture, and one of the things we have become aware
of are some of the gaps; we are really mindful of what you all
do at the moment but equally mindful of the opportunity that may
come through the enlargement of a big commission, just to test
really where these gaps sit. The first one I want to ask about
is based on the Equal Opportunities Commission having told us
that it does not deal with domestic violence issues, is that rightbroadly?
(Ms Watson) Yes.