4. Memorandum from the Equal Opportunities
Commission
Introduction
The Equal Opportunities Commission (EOC) is grateful
for this further opportunity to share with the Joint Committee
our thinking to date on the powers and proposed structure of the
Commission on Equality and Human Rights (CEHR). This memorandum
is in response to the call for evidence made by the Joint Committee
on the 8th June 2004. That call for evidence asked for submissions
on the differences between the proposals of the Government's White
Paper and the Joint Committee's own report on related matters.
This memorandum concentrates on two specific issues, namely the
differences between the White Paper and the Joint Committee's
11th Report on the issues of:
Accountability
Enforcement Powers
The comments on these two specific issues should
be read in the context of the EOC's memorandum in response to
the Joint Committee's previous call for evidence.
In particular, the EOC believes that a consistent
set of function and powers across equality and human rights is
essential if the CEHR is to fulfil its remit. It is worth reiterating
why the EOC takes that view, namely that
Consistent functions and powers should assist the
CEHR in taking an holistic approach to its remit
Consistent functions and powers will enable CEHR
to concentrate to effectively tackling whatever task it has in
hand without being unduly distracted by legal debates or challenges
about whether it is acting on equality or on human rights grounds.
This second point is of particular relevance in discussing
the proposed enforcement powers of the CEHR.
Accountability and Independence
In its 11th Report Session 2003/2004, the Joint Committee
recommended that the statutory design of the CEHR should adopt
and adapt the arrangements for guaranteeing the independence and
accountability used for the Parliamentary Commission for Administration,
the National Audit Office and the Electoral Commission. That recommendation
arose from the Committee's concern that the standard model of
Non-Departmental Parliamentary Body (NDPB) accountability was
not a sufficient outward and visible guarantee of independence
from the Government to be appropriate to a National Human Rights
Commission or proposed Single Equality Body. In contrast, the
Government's White Paper at paragraph 5.1 confirmed that the CEHR
will be a NDPB in paragraphs 5.19 and 5.20 of the White Paper
under the heading "Accountability and Independence".
The Government confirmed that the CEHR:
will operate within the standard framework setting
out relationships between government departments and NDPBs
will agree a management statement with its sponsor
department
will work closely with a number of government departments
who have an interest in issues on which the CEHR is working; and
will be held to account by Parliament through the
requirement for the Secretary of State to lay its annual report
before both Houses of Parliament.
The EOC's view is that these arrangements are not
enough in themselves to ensure the necessary independence from
government. Safeguards for its independence will be of particular
relevance to a body whose role relates to the compliance by public
authorities with human rights standards. The EOC's position, as
set out in the previous memorandum to the Joint Committee, is
that we would like to see consideration of the creation of a Parliamentary
Committee concerned with equality at Westminster so that (as suggested
by the Joint Committee's 11th Report) a closer relationship could
be built up between the CEHR and Parliament.
There are also other factors that could help support
the independence of the CEHR, in the event of a hostile or unsympathetic
environment in the future. It will be important that the appointed
Commissioners are of a high calibre and seen to be credible and
independent voices. The CEHR will also have to attract sufficient
support from its partners and stakeholders in the voluntary sector,
and from employers, trades unions and media, in order for them
to defend its role and independence, should that come under threat.
One of the most common means of sidelining equality
bodies, however, as is shown from international experience, is
through inadequate initial resourcing or subsequent resource cuts.[59]
The EOC would like to see some form of safeguard to ensure that
the funding levels for the CEHR are subject to appropriate scrutiny.
Whichever mechanisms are put in place ought to aim to prevent
any repetition of the current imbalance in the funding between
the existing three commissions, and provide a clearer rationale
for linking resources to roles.
It is also of immediate and urgent relevance to this
question that sufficient resources for the first years of the
CEHR are set aside in the current spending round, particularly
given the complication of the existing shared funding responsibilities
between three government departments.
Enforcement Powers
In its previous memorandum to the Joint Committee,
the EOC set out its views on the human rights related powers which
a CEHR should have. The EOC's view differs from that of the Joint
Committee and the White Paper in some respects, most importantly
in the EOC's view that a power to carry out "named person
investigations" on a human rights issue would be an appropriate
tool for the CEHR to have. The reasons for that view are set out
on page 3 of the previous memorandum.
The EOC's view on the human rights related powers
of a CEHR remain as set out in the previous memorandum. The comments
in this memorandum are limited to those areas where there is a
difference between the recommendations made by the Joint Committee
in its 11th Report and the White Paper. The main points of difference
are:
the limiting of the CEHR's power to arrange for the
provision of conciliation services to disputes relating to discrimination
in the provision of goods, facilities, services and education
(and not in cases of breach of human rights by public authorities).
The inability of the CEHR to bring judicial review
proceedings in relation to human rights cases.
In addition to these specific points, there are areas
where the White Paper does not specifically deal with issues raised
in the Joint Committee's recommendations, for instance the suggestion
that the CEHR and the Legal Services Commission should agree a
memorandum of understanding which allows consultation to take
place on the formulation of criteria for strategic funding of
human rights cases.
The Question of Conciliation
The Joint Committee recommended that the CEHR should
have a general power to support alternative dispute resolution
approaches to allegations of breaches of human rights by public
authorities. The Joint Committee saw this as a quid pro quo for
the restriction on support for individuals bringing human rights
cases. The White Paper, however, proposes that the CEHR will be
empowered to arrange for the provision of conciliation services
in disputes related to discrimination in the provision of goods,
facilities, services and education (paragraph 4.21 of the White
Paper). The reason given for this distinction is that it is consistent
with the approach proposed by the White Paper for supporting HRA
litigation, i.e. since human right issues can already be raised
in any court or tribunal and legal aid may be available, there
is no requirement for the CEHR to support cases under the HRA.
It is not clear why the availability of a litigation route to
resolving a dispute should preclude the provision of a conciliation
service. The approach in other areas, for example in the employment
sphere, is to encourage alternative dispute resolution even where
there is a readily accessible route to litigation through the
Employment Tribunal. The limitation of a conciliation service
to discrimination cases or discrimination cases with a human rights
dimension would lead to a difference in treatment of an individual's
dispute based on the technical label applied to it. As mentioned
in the introduction to this paper, the EOC is concerned that distinctions
of this kind will hamper the effectiveness of the CEHR in achieving
a holistic approach to equality and human rights and, on a more
specific level, may lead to legal challenges and technical hurdles
to the resolution of disputes involving the rights of individuals.
Judicial Review
The Joint Committee's Report recommended that the
CEHR should have a power to seek judicial review of the policies
or actions or omissions of a public authority where it has reason
to believe that such policies or actions or omissions have resulted,
or are likely to result, in a violation of convention rights.
The White Paper does not include such a power. The White Paper
rejects the notion that the CEHR should be able to take "hypothetical
cases" where it would be useful to clarify points of law.
The EOC's experience is that judicial review provides an extremely
useful tool for addressing matters of fundamental legal principle
that require clarification. The memorandum from the Centre for
the Study of Human Rights at the London School of Economics responding
to the Joint Committee's previous call for evidence points out
that such clarification can in the long run deter potential litigants
from recourse to the courts. There is also a strong argument that
clarification of the law is beneficial both to individuals and
to those organisations seeking to comply with the law. The EOC
believes that the power to seek judicial review in this way is
a fundamental tool in the promotion of human rights as a framework
of core values and in monitoring the workings of the HRA.
June 2004
59 A Single Equality Commission, Lessons from Abroad,
O'Cinneide EOC 2002, pp. 47-52. Back
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