Examination of Witnesses (Questions 400
MONDAY 1 JULY 2002
400. Have you any thoughts about how a human
rights commission ought to operate since it is devolved?
(Ms Mellor) Again, I think that is part of what we
will be consulting on and therefore we would not want to draw
conclusions. All I would say is that what is clear is that a single
body for Great Britain will only work if it has a strong capacity
to work directly in Wales and Scotland.
401. My question is really about exercise of
your functions and powers. What functions or powers do you consider
your commission currently lacks which would make it more effective
in eliminating discrimination and promoting equality of opportunity?
Secondly, do you perceive certain of your statutory enforcement
powers and measures to be more critical than others? What enforcement
powers do you believe your commission lacks that would make it
more powerful and effective? Finally, what key lessons can be
learnt from the experience of your commission in relation to functions
and powers which you would want to see applied in establishing
a single equalities body, and what are the key functions and powers
that you consider absolutely necessary for the effective operation
of a single equalities body?
(Ms Mellor) In terms of the functions and powers that
we consider we currently lack which would make it more effective
in eliminating discrimination and promoting equality, number one
we have talked about which is public sector duty. Another is class
actions and another is being able to take cases in our own name.
Another is not exactly a functional power but resourcesparticularly
for formal investigationsand another one is around mediation
and certainly learning from some of the experience of the disability
rights commission. Already 80 per cent of those who come to us
with a concern that they have been discriminated against settle
their cases before a tribunal or court, so that shows the emphasis
on trying to foster workplace resolution which is best for everyone,
or amicable resolution on goods, facilities and services cases
but I think it might be worth exploring whether there is something
in that field of mediation that might be added to our powers.
Secondly, your question about which are more critical than others,
is that in relation to current powers?
402. That is right.
(Ms Mellor) I think we have answered that in terms
of saying the mixture of enforcement and promotion is absolutely
critical; that one without the other fails to achieve the systemic
change that is needed, although the range within each can vary.
What enforcement powers do we believe we lack to be more powerful
and effective? I think I have covered that. Your last question
was about what can be learnt in relation to functions and powers
which you would want to see applied. This comes back to the issue
of enforcement and promotion, and the reasons for keeping them
together that I think we have learnt about are genuine and potential
synergy between enforcement and promotion. The tensions that are
sometimes perceived as being created between the two functions
can be managed successfully in practice. And then the mixture
of a body that only has promotion functions might find it difficult
get reluctant organisations to engage and, in our experience and
recent consultation, employers and service providers are unlikely
to support a separation. In terms of additional functions that
might make it even more effective, I have mentioned some but there
are just a couple of details. For example, in formal investigations
at the moment, my organisation only has the power to issue non-discrimination
notices, and I think we have learnt from the experience of formal
investigations that if we had the power to enter into some kind
of formal agreement that was binding upon the other party in belief
investigations, then that might be helpful. I do not have an answer
but I think it might be worth looking, if you are looking at the
creation of a single equality body, at our experience of involvement
of commissions or non-executives in taking decisions on every
single individual case of complaint and whether that is something
that might be changed.
(Mr Singh) I think we have considerable powers and
I think that the functions are broadly wide. Complaint aid is
very important. The power to conduct formal investigations we
have used fairly extensively. Some would say we need to use it
more but there have been over 120 investigations over the last
25 years which is quite significant. The new power to issue compliance
noticessignificant. It has to be used strategically, carefully;
it will not be confetti but appropriately used. Where I think
there are weaknesses is that clearly there are statutory exemptions
to the Race Relations Act itself and that has been very carefully
thought of. They cover things like judicial acts, functions of
the security services, decisions not to prosecute and clearly
a number of immigration functions are clearly exempt from the
Race Relations Act itself. We could have stronger formal investigation
powers; power to enter into legally binding undertakings with
respondents is an important one; perhaps stronger enforcement
powers vis-a"-vis the public duty, but public duty
is interesting in the sense that the enforcement bit relates to
a process. Have you followed this process? Have you delivered
a bit of paper and have you consulted appropriately? It is not
about measurable outcomes at the end of the day. So you could
have a wonderful process complied by the new undertaking but which
delivered no change at all, or the situation may even have got
worse but people were not being briefed, so that I think is important
and, if in the future that was looked at, that is what I would
(Mr Massie) I would point out that many forms of discrimination
cases are perfectly legal in this country and therefore we cannot
do anything. For example, if a wheelchair user waits at a bus
stop the bus driver can still say, "I do not like disabled
people", and refuse access. That is perfectly legal. Some
of you may recall a couple of years ago I was stranded at City
airport because an airline refused to take meperfectly
legal. They can say "We do not like disabled peopletough".
Small employers, those employing fewer than 15 people, can under
the law of the land legally discriminate. They can say, "We
are sacking you, awfully sorry; you have done nothing wrong but
we just dislike disabled people". That last one will disappear
in 2004 under the European Directive, but we still do not have
a date when the government are going to put the first two right,
so we do need legislation which is half my point about the single
commissionwe are starting from such a weak position. If
we could get that legislation sorted out, then I think it would
be the sort of issues which have been talked about: the public
duty would be important if only because you cannot really change
a culture by picking up individual cases all the time. You really
need a much broader change than thatnot to be bureaucratic,
not to throw weight around but because this is the way in which
you move a country's perception, and that is why we want that.
On class actions and bringing cases ourselvesvery helpful.
We brought a case representing a person who was a mental health
service userit was a question of definitionsand
we took it to the appeal court in London and got £120,000,
although it would have been far better if he had not lost his
job in the first place. That was a good press story except this
man had serious mental health difficulties and the last thing
he needed was his name over the newspapers so we could not use
it. It would be rather good if we could take class actions and
not focus on a single person who is, at that stage, already very
vulnerable. Also, I have mentioned several times human rights
and Mr McNamara was talking about some of the differences. Let
me give you one example: there was a report, published by Needs
Must, an alliance of disability associations, called "Out
of Services" in March 2000, and one of the people quoted
in that said, "My mother is 86 years old with Alzheimer's
disease and has been on the list for five years for an accessible
bath or a sit-in shower. She has been unable to bathe for five
years but has to be strip-washed in the sink in the kitchen and
the council says they have no money". Unbelievable. This
is a lady who certainly has lived through one World War and yet
has the indignity of having to get a strip wash in the kitchen.
It is the sort of story we read about in 1930s novels, and there
is not a thing we can do about it.
403. If you were asked what powers the human
rights commission should have to be effective in the light of
all this, what would you say?
(Mr Massie) I would say the right to enforce the Human
Rights Act because we need to have the right to life. There are
huge issues around, for example, the Miss B case, the Diane Petty
case, which needs resolving because so many people's lives are
devalued so often. People say, "I would rather be dead than
be a vegetable like that". I know some extremely contributive
vegetables in this country who have been profoundly disabled and
gone on to live life but these issues are very complex and need
exploring. The right to dignitythe case I have just mentionedsomebody
needs to take up. We should not be allowing ladies in their 80s
to be subject to that sort of indignity. It should be unlawful
and should be enforced.
(Mr Singh) What we want to see is an effective human
rights culture developed on the ground that requires an agency
which has significant enforcement powers but also the ability
to promote it.
(Ms Watson) I would just refer to something Julie
said earlier about our equal pay workit is back on the
agenda. Equal pay is up there because of the promotional work
that we have done. If we want to put human rights culture on the
agenda and get that systemic change, it needs to have that promotional
404. Finally, on law, on accountability, would
you prefer the single equality commission to report directly to
Parliament or to be accountable to a minister, and would your
answer be the same for a human rights commission?
(Ms Mellor) Perhaps I could start by saying I am not
sure that we report anywhere because by statute we are independent.
Formal accountability in some sense is a relatively light touch
in that it is about financial accountability and our accounts
are laid before Parliament. We are sponsored by a government department
but we are independent of it and would not regard ourselves as
reporting to it. I think that statutory independence is absolutely
vital both for the equality body and for any human rights body.
405. So it would be Parliament rather than anything
(Ms Mellor) In terms of accountability, yes.
(Mr Singh) I think there are some serious benefits
in having a sponsoring government department. There are clear
financial benefits. In part, to off-set that, whether you like
it or not, that can constrain independenceand it is a fact.
To what extent is the CRE, and I am asked the question often,
independent from the Home Office? I would say it is quite significant
but other people do not believe that. So there are benefits and
disbenefits with that. With human rights, if a substantial budget
was guaranteed and appropriate resource for organisation, then
I think Parliament is the right place where it should be accountable.
(Mr Massie) It would depend what sort of body was
set up whether it is worth reporting to anybody,
but let us assume we create something half decent,
that will depend on the Secretary of State. Some Secretaries of
State can be extremely helpful and take ownership and really help
you project an agenda across government which you may loose reporting
directly to Parliament. Contrawise, it is not impossible to have
a Secretary of State who is not at all enthused and does not want
to pursue your agenda, in which case they have a lot of power
to make life difficult even though we are independent. Clearly
to ignore the Secretary of State is ludicrous. If you report to
Parliament then the question is how. Presumably you are not going
to go into the Chamber of the House and give a report, so it would
be some sort of Committee like this, I imagine. Also, would the
government be the majority of the committee and, if so, we might
run into the same difficulties as with the Secretary of State,
so it is one I would like to think on more deeply before I answer.
406. If you have more thoughts will you write
to us and let us know what they are?
(Ms Mellor) Going back to this issue of why, we do
have accountability to Parliament because by statute we are independent,
but that is because we are the guardians of sex equality, race
equality and disability equality and we have to be independent
and be able to comment on the agenda of the government of the
day, and that is why the formal accountability to Parliament I
think is vital. Then there is the second question of what kind
of sponsorship arrangements are going to work best.
Chairman: Thank you very much for appearing
before us today. We have gained a great deal from taking evidence
from you. As has been said occasionally during the course of this
session, there may well be points that strike you that you will
want to get in touch with us about by letter, and similarly there
may be things we want to write to you about where we would be
only too happy if you were to respond. Thank you.