Joint Committee On Human Rights Minutes of Evidence

Examination of Witnesses (Questions 400 - 406)



  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.

Baroness Prashar

  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 resources—particularly for formal investigations—and 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 notices—significant. 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 recommend.
  (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 me—perfectly legal. They can say "We do not like disabled people—tough". 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 commission—we 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 that—not 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 ourselves—very helpful. We brought a case representing a person who was a mental health service user—it was a question of definitions—and 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 dignity—the case I have just mentioned—somebody 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 work—it 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 capacity.


  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.

Mr McNamara

  405. So it would be Parliament rather than anything else?
  (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 independence—and 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.

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