HOUSE OF LORDS
House of COMMONS
MINUTES OF EVIDENCE
JOINT COMMITTEE ON HUMAN RIGHTS
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Taken before the Joint Committee on Human Rights
Mr Andrew Dismore, in the Chair
Morris of Handsworth, L
Mr Richard Shepherd
Mr Edward Timpson
Witnesses: Professor Kay Hampton, Professor Francesca Klug OBE, Sir Bert Massie and Ben Summerskill OBE, examined.
Q1 Chairman: Good afternoon everybody and welcome to this evidence session of the Joint Committee on Human Rights on the work of the Equality and Human Rights Commission. We are joined by Professor Kay Hampton, Professor Francesca Klug, Sir Bert Massie and Ben Summerskill. Welcome to you all. Does anybody want to make any opening remarks or shall we go straight in? Perhaps I can start with you, Kay, and I am going to ask the same question of everybody. Can you explain why you decided to resign from the Commission?
Professor Hampton: Yes I suppose more than any of my colleagues around the table today I worked closely with Trevor for longer, for four years at the Commission for Racial Equality first and then at the Human Rights Commission. It reached the stage where we were terribly unhappy, particularly myself, in terms of some of the issues relating to governance, mainly conflicts of interest, the manner in which the board was being run, the inability for board members to participate fully in the discussions. It culminated really for me, the most important aspect, was the reappointment of ex-CRE staff who had taken redundancy packages. It was something I had actually challenged him on 18 months prior to resigning, in fact while I was at the Commission for Racial Equality, and he continued to deny any knowledge of it which I thought at that stage was terribly unprofessional of somebody to be the Chairman of an organisation that needed to lead by example. Whether we like it or not, whether there is a real conflict of interest or not, I think public perception is very important when you are running a Commission like that, and everybody looks to the reputation of the Commission by it leadership and I was terribly unhappy with the leadership. I have been through two other occasions where chief executives could not take the interference in the behaviour of the Chairman and had resigned and I could see it had happening again in the Commission, so when this Chief Executive resigned I decided that it was time for me to go. My own credibility was on the line. People were asking me questions about the body which I could not defend any longer, so that is why I resigned when I did.
Mr Summerskill: I should just say first of all that I was and remain completely committed to the vision of the Commission and I know that some of the people here have been supportive of that over a number of years. The key reason in the end why I resigned was that as chairman of the Commission's Audit Committee I simply felt unable to offer appropriate assurance to the National Audit Office that the Commission was being led with probity. My understanding is that the National Audit Office were understanding of my having taken that view, having worked quite closely with them over the last couple of years. The bottom line is that from my perspective it comes down to leadership, although I would absolutely stress that I do not regard this as an issue of personalities. I think the reason, certainly from my perspective, I am completely concerned about leadership and I am often quite managerialist is precisely because I think it is important that public bodies deliver what they were set up to deliver.
Professor Klug: It is hard for me not to reflect sitting here with all of you the long journey that I have personally been on in this with many others, including some people notably in this room, to try and persuade the Government that we needed a Human Rights Commission, and subsequently to work with Ben on the taskforce and steering group to help develop its powers, duties and strategic visions. I have to say in this entire long journey I never believed the time would come when I would be sitting before you answering your questions as to why I have resigned, so it is a very sad day for me. It is also the very first time I have spoken about this publicly. All of us were very concerned, as Ben has just said, not to damage the body because we all believe strongly in the original vision for it and there are many, many principled and hard-working Commissioners and staff who we are very mindful of when giving this evidence today, but most recently the Chairman has been himself speculating publicly about why we resigned. I think just a couple of weeks ago there was a report about what he said at the Tory Party conference and if that report is accurate I feel that it is necessary to put the record straight. The Chairman does not need to speculate as to why we have resigned; we all raised the issues we are raising before you many times and I personally first told him I was minded to resign in October 2008 at a private meeting where I went round a number of issues. Subsequently I repeated that at other one-to-one meetings and various aspects at the board and really the only reason why I personally did not resign sooner was because I made a commitment to the remarkable chairman of the Human Rights Inquiry, Nuala O'Loan, who I understand has also written to you with evidence, that I would not resign until we had finished the inquiry which in the end stretched over into July. Also I have to say at moments when I considered resigning friends, I would say, as well as colleagues on the board persuaded me at various times to keep to that commitment. I think maybe it would be helpful if I just read out a paragraph from a letter I sent to the Chairman subsequent to resigning where I set out all the issues that I raised with him and at the board previously in one go, given that I am mindful of time. "The difficulty in having any substantial influence or governance or strategy as a Commissioner whilst rightly being held accountable for such matters; lack of knowledge about crucial policy decisions the Commission was taking until shortly before they were publicly announced; problems in communicating with each other on the board in an open and transparent way; the perceived conflict of interest concerning the Chairman's private equality consultancy," and, as Ben said, this is not a question of personalities in any way; just a question of appropriate behaviour in public life, as I understand it and as has been advised to me - "Significant expenditure on external consultants despite our extensive staff numbers." I asked for figures for this many times as a member of the Audit Committee, and Ben will concur, and I was never able to be given a full account. "Along with other matters of probity, and, above all, the fundamental steps that I perceive to be necessary to begin to fulfil our human rights mandate." I know we are going to come on to that. I feel that there was a culture that we all contributed to, and I do not exempt myself from this but it is one I felt very uncomfortable about, which is a kind of culture of averting one's eyes. As Tom Payne famously said: "A long habit of not thinking a thing wrong can give it a superficial appearance of being right." As I see it, the kind of issues I raised do bring to bear the Nolan principles of selflessness, accountability, honesty, integrity and openness. The bottom line for me, frankly, is if the Chairman, who has many, many talents (there is no question about that) had decided to perhaps use those talents elsewhere, as he advised many of us he would when we were appointed that this was for one term, I personally would have had no difficulty or problem with reapplying because I felt there was a lot more work to be done.
Sir Bert Massie: I agree with
my colleagues and their reasons. For me
it was also a long decision. The straw
that broke the camel's back was the reappointment of the Chairman. At that point I felt I could do nothing for
the Commission and it was a waste of my time staying. I was anxious from the beginning about the
disability programme and the human rights programme but that is not the real
issue over which I resigned. The issue
over which I resigned was corporate governance.
When this Commission was first mooted I was not an enthusiastic
supporter of it at the Disability Rights Commission, and that is on the record,
but the Disability Rights Commission decided as the debate unfolded that we
would support it. The Commission
collectively asked me to go on as a transitional Commissioner. When I went on as a Commissioner I went there
not to destroy it and not to be difficult but to try and make it work. Parliament had given us the Disability
Committee and there had been concessions and we thought this Commission could
at least deal with human rights in a way the DRC could never have done and
there could be a real plus for disabled people as well as for others. I went in very positively. Very early on the first governors' document
we received was a long document called Standing Orders and essentially it asked
us to give all of the powers of the Commissioners to the Chairman, so I
objected and there was a running battle over months, in fact, the final governors' document was
only agreed in May this year, trying to get the power balance right within the
Commission so the Commissioners could actually play their role. I found it extremely disturbing that we could
not function as Commissioners. Our
skills were not being used, our expertise was not being used and we could not influence
the agenda. Then certain other issues
happened which distressed me enormously.
It was known that the Chairman and Chief Executive did not have the most
cordial of relationships. We thought we
had to have some investigation to try and get the thing operating and a number
of us wanted an internal group set up to try to get this right. Instead we went out to external
consultants. I said what their report
would do before they wrote it. When they
reported at the end of 2008 they reported exactly what we had predicted. It had missed all the big issues and picked out
issues that were not that critical and it was entirely predictable, so again we
could not improve governance. When the
Chief Executive left, the process proposed to replace the Chief Executive met
no standards of public life at all, so there was another battle to get the post
advertised correctly externally, et cetera.
That eventually happened but we should not have been having those
battles. I was there to promote human
rights and to promote equality. I cannot
tell you how much energy I squandered travelling back from
Q2 Chairman: I think you have all given a pretty clear picture about your concerns over governance and financial probity and those issues, but I would like to try and move on a bit and look at the direction of travel of the Commission which is really what I think we are concerned about. If I can start with you, Bert, in March you wrote that you were concerned about the direction of travel at the EHRC and that work was not going as fast as it could do. Can you tell us what you meant by that?
Sir Bert Massie: Yes, I had raised all these issues internally of course and when I raised them internally I was ignored. I got the Chairman's attention if I raised them externally which is where that quote comes from. You should not have to operate in that way. The Commission really has been very sluggish. If you look at what it has been successful at, it has done quite a lot on sexual discrimination and on gender issues and has done some good work there. If you look at disability, which clearly was one of my interests, the Disability Rights Commission bequeathed it a full disability agenda most of which has not been followed forward. I said time after time we needed to put more resources into disability instead of just one or two people. Admittedly some of the legal team were doing some, et cetera, but we were not developing policy and we were not following things through. In fact, this work was being downgraded. I will give you one example of this. One of the requirements of the current legislation which was passed in the Equality Bill is that things should be accessible to disabled people including websites. Early in the Commission's existence I was asked to write an article for them on accessible websites because nobody else in the Commission knew anything about it. That is fine; I wrote an article. In the article I wrote: "For people who break this rule the Commission will enforce the law." I had a week's argument to get the Commission to accept that sentence that the Commission would enforce the law. I was told this was softly-softly, we are not here to enforce the law. This is from an equality commission. I could not even put in an article. Eventually I said I will publish this article myself and I will make the point that this is the bit you could not read previously, so of course the Commission then accepted it. I should not have been having that battle. There is so much the Commission could have been doing. There are some excellent people on the Commission.
Q3 Earl of Onslow: Can I interrupt on that. You said you had a week's argument to include the sentence to enforce the law. With whom were you arguing? Were you arguing with the Chairman?
Sir Bert Massie: I was arguing with a senior member of staff. This was not the Chairman, it was a senior member of staff who was reflecting the view of the Commission that it should be softly-softly, and I was saying Parliament has passed a law, the DRC have done work on it; we should be enforcing it. You can look right through on disability where there are weaknesses. The Commission did one good report prepared mostly by Baroness Campbell called "From safety net to springboard". You will be pushed to find any publicity for this at all. It was done and it was dismissed. It was a good piece of work, a human rights approach to social care, exactly what the Commission should be doing and exactly what the Commission should be pushing. It would help the country. Forget it. We have published it; we now forget it. So it was the frustration that I could not get resources allocated to disability or to human rights. Resource was always going elsewhere. If you look back now the Commission has been going in shadow form for a year and in full form for two years. Whenever I went public and criticised them on disability activity publicly, there was a flurry of disability activity and since I resigned there has been another flurry. It will not last. It is just a show.
Q4 Lord Lester of Herne Hill: I want to explore whether that is fair because you are suggesting that the Commission has been reluctant to enforce the law. Can you give any real example of actual cases where an attempt was made to do so? I ask the question because of course the Commission has supported a number of important test cases all the way through.
Sir Bert Massie: Indeed.
Q5 Lord Lester of Herne Hill: I should declare an interest as I was instructed by them in a case on age discrimination, so I just wonder where this is coming from. I can understand you had an argument with a member of staff but in terms of actual facts about the situation, could you explain it to us?
Sir Bert Massie: Yes indeed I can, Lord Lester. I was a member of the Legal Committee of the Commission and we did take quite a lot of legal cases. My point is you do not enforce the law by simply waiting for people to come to you and take a case. You see where the law is not being exercised and you initiate things and that is what we were not doing. We were reacting but we were not initiating. We all know the Government is doing a lot on websites now and as an equality commission it should be pushing for access. It was just one issue. There was a whole range of issues where when I go round talking to various people they all say, "What is happening?" There is no enthusiasm for it any more. There are people on the payroll of the Commission who are good and it could be retrieved and the Commission could yet deliver its function, but certainly on disability it has not and I felt that very strongly.
Q6 Chairman: We can come back to some of the points about the direct approach. What I am trying to get at the moment is a general picture of the direction of travel and whether it is moving in the right direction or it is moving fast enough. We will come back to some of the detail about the underlying strategic approach. Francesca, do you want to comment on the direction of travel and whether it is moving fast enough? Are there any particular examples you can give?
Professor Klug: One of the ways that the Commission expresses its mission is the use of the word "fairness". I know that there has been a lot of discussion both externally and internally about that term. I think it is a fine value and it is also sometimes extremely appropriate as a communication tool. I must say communication skills were well-represented in the body at the leadership level and quite often that would be perhaps a dominant concern. I cannot argue with the fact that fairness is a term that most people connect with, but I do not think it is a substitute for strong policy and I do not think it is a substitute for standards or indeed law enforcement. I would agree with Lord Lester - and I was also a member of the Legal Committee with Bert - that from the inside it felt to me like we had a reasonable legal strategy and were taking some hard and important cases and intervening in human rights cases where we had no other powers other than judicial review. I have to say that was not the feedback I used to get from lawyer friends of mine. Wherever I would go I would sometimes wish to put a brown envelope on my head because I would be lobbied so hard about this. However, from the inside I would concur with that. Taking the legal enforcement powers aside, I am not sure that we have managed to communicate with the British people what we actually stand for. If I look back on the mission that you set out in this Committee for the body, and I did prepare for this evidence session, and if there is time I would be glad to read some of it out, I do not think we have communicated that championing of the values of equality and human rights as well as responding slightly haphazardly to particular issues at particular times. There are areas like gender equality where I think we have done quite well, but I do not think we are coming across with the holistic message we were set up to do. The Commission is a regulator. I agree with that description and it is a regulator first and foremost. I think those of us who spent many years trying to build a vision of the body saw it as a body with the powers for smart regulation, not just, as Bert said, hard-headed regulation response to individuals coming for legal support but regulation that means that we encourage public authorities, and indeed private bodies where appropriate, to understand what it is they need to do to comply with and indeed champion and understand the value of equality and human rights in all its myriad forms. We have hardly begun that work and fairness is sometimes a substitute or a euphemism for definite standards of equality and human rights which we have not done a great deal to enhance, in my personal opinion.
Mr Summerskill: In response to the direction of travel question, I do not have a difficulty saying that I think the direction of travel is correct. The issue is whether we are travelling via the stopping train or the inter-city. The reason that matters to me - and I am sorry if I make another managerial observation - is I do believe very strongly that a public body with a budget of more than £60 million a year should be doing significantly more. In my day job we have a rule which may not be known to public servants of being prepared to look anyone in the face who has made a donation to our charity and explain exactly what we have done with their money, whether it be £5 or £20,000, and my worry at the Commission is that that sort of focus on delivery has not existed. My clear view - and I am crystal clear about this - is that at the end of the day if there is not sufficient capability at the very top of the Commission then you will not deliver the Commission's priorities and objectives. People can say that the chair of a FTSE 100 company is merely a part-time factotum. The bottom line is it is the chair of a FTSE 100 company who sets the direction of travel but also is clear about the speed at which an organisation is expected to deliver. That sort of impetus has been missing in the Commission's two-year history.
Professor Hampton: I have to say
this was one of the most unique experiences of my life in terms of being a non-executive
because, as far as I am concerned, there is nothing wrong with the
structure. I disagree totally with
Harriet Harman that we got the structure wrong.
There were colleagues of mine who dedicated almost three years of their
time coming from
Q7 Chairman: I would like to go back to something that Francesca referred to and that is the board acting as a regulator and to probe that with you. We have heard criticisms from Lord Ouseley and Katherine Rake of the Fawcett Society that the EHRC has been too timid and it has acted as a regulator rather than a campaigning body. I suppose the first question is: is it an either/or, a regulator or a campaigning body, or can it be both? What is your response to the criticism that it has been too timid in its approach? Obviously we have heard about the hundreds of legal cases and all the rest of it, but I get the impression that you are all a bit concerned about the low profile of the Commission and it not engaging the public.
Professor Klug: I am not concerned about the low profile. In fact, I was very often concerned about the over-high profile because I thought the Commission was chasing headlines and sometimes headlines which I was very ashamed to be associated with. I remember a speech on the anniversary of Enoch Powell's "rivers of blood" speech which was something like: "Commission says there is a Cold War" and that was in a speech that was talking about concerns people had about the number of Eastern Europeans coming into this country. I know there was nothing in that speech by the Chairman that led directly to what the headlines suggested, but it was not difficult to see, as someone even without the communication expertise of the Chairman, that that was the kind of headline that could be transferred from what was said in the speech.
Q8 Chairman: Was it spin?
Professor Klug: I have no idea if that headline was spin. I have to say a lot of Commissioners would speculate about whether it was, which I am afraid is a reflection of the fact that people did not have confidence in whether we were on top of our own board and our own direction of travel. My concern was not that there was too little exposure but there was too much, and I have noted some improvement in that, and I feel the exposure that the Commission is getting now is much more focused on concrete, discrete policy areas. Indeed there was such an issue today. I feel nevertheless the real problem for the body - and I think Kay Hampton just referred to it - is lack of consistency. I do not think there was any clarity about what exactly we were trying to say. A human rights commission and after all a human rights commission has a very specific meaning, it is not just any old NDPB, with the greatest respect to all other NDPBs, but it has a meaning in UN terms. The Commission obtained that status at the UN and sought to do so. Part of the Paris Principles which established human rights commissions require it to champion human rights standards and values. I think the word "champion" is an appropriate word rather than "campaign". A statutory body, a human rights commission, an NDPB is not a campaigning body, but it is a body that both regulates and is entitled to champion the values it regulates. Indeed, if you look at the mandate of the body it has a statutory duty to do so, for example not to promote human rights but to promote the importance of human rights. I do not know whether you are going to go on to ask me about the human rights inquiry that I was the lead Commissioner on so I will not say much about it now but I will say this: virtually every single witness - and we spoke to about 300 - repeated the same evidence to us. These people varied from the usual suspects of human rights lawyers to the Chief Executive of the Daily Mail. They all said why is the Equality and Human Rights Commission not providing us with a credible vision of what human rights are, how they can add value in everyday life, and why is the Commission not addressing some of the misinformation on human rights (and this included the Chief Executive of the Daily Mail) that sometimes newspapers are forced to print because there is no reliable resource for them to go to to correct. I think that the timidity lies in that kind of area of having a principal sense of what the Commission is there to do and saying it boldly, but I distinguish that from campaigning as such.
Q9 Chairman: I think that probably reflects my attitude to the inquiry as well. I will ask the others to come in on that point. I just want to deal with this point about whether there is a juxtaposition between campaigning or championing, which I think is a better word, and regulation, or whether you can do both. Can we have short answers and then we will bring in the others.
Sir Bert Massie: May I say that I think first of all that this is a regulator, but any commission like this is also a major adviser to the government of the day and therefore it needs to ensure that it takes on board all the facts and all the opinions before it provides the advice. Because the Commission had not developed effective relationships with stakeholders, and in many cases was not respected by stakeholders, it was not getting fed into it the sort of advice, the sort of wisdom, the views - you may want to disagree with them - which would have enabled the Commission to give the most effective advice to government, not as a campaigner which charities doing campaigning with a big flag, but actually saying, "You, Government, are getting advice from a lot of supporters. We have analysed that. This is the advice we give you". It might be a compromise, or whatever but it should be knowledgeable. Unfortunately, in my time, it did not achieve that, and it could have done.
Mr Summerskill: I think it is perfectly proper for a non-departmental public body to champion issues in a way that builds alliances across the piece. I think the fact that our Chair has, by his own admission and indeed on a number of public platforms, been an active member of one political party has not necessarily contributed to building those relations across the piece. The other thing I would just say briefly as a coda to what Francesca has said is that I do regard it as slightly regrettable that we are even in a position where a number of staff, indeed the Commissioners, are wondering if a piece of work has been published by the Commission today simply in order to distract from the deliberations of your committee, and that is a token of the way in which the body has been run very much as if it is some sort of party policies operation. I mean no offence to anyone who belongs to a political party, but there is a time and a place for that sort of activity.
Professor Hampton: It is not unique to have regulatory powers and to champion promotional and educational elements; that is nothing unique and should not present a challenge of one or the other. Most specialist bodies are established to be regulators but also to monitor performance of bodies and so on. It is not a unique skill; the CRE (Commission for Racial Equality) had that power for ages. I think most of the traditional bodies had the power. If you look, taking the sector of race for example, at just how bad things have become since the demise of the Commission for Racial Equality, then, even though I am not a champion of wielding regulatory powers all the time, I think it has its place in maintaining a momentum. Of course the heart of human rights principles is that you negotiate, you educate, you promote, and, if all else fails, then you use the law. I do not think that we even got to the stage to be measured on our performance in terms of whether we did either of the tasks effectively because, as far as I am concerned, we are operating in the dark. We have a strategic plan with no supporting policies. It is hard to balance that and that balancing act has not happened. People are judging the performance of the organisation incorrectly because of the way in which it has been portraying itself publicly. Although on record there might be a number of test cases that have been taken, and so on, I think fundamentally that bridging the transfer period has not happened where some sectors of the population have been very used to having one-to-one support and representation in court support and so on. That was suddenly taken away and suddenly there was a new policy under the guise of modernising that now we are just going to take test cases, but you are left with a huge gap without encouraging people towards other alternative solutions to their problems. I think that is why there is this feeling amongst the general public that the EHRC is more timid and is not performing its function as a regulator. The people who depend on the CRE for legal support, legal advice and representation just do not have that any more and there is nothing in place. My understanding was that it was the duty of that body and that they would set in place work with the legal services community and so on to provide that kind of support before rushing on to take this more strategic approach of taking on test cases, which, by the way, I do not think is a bad idea. That is all part of progress but you have to prepare people from what they were used to having as protection for what they have now.
Q10 Earl of Onslow: This question of whether you are a regulator or a campaigner, surely this is something which should be settled right at the highest level? You should have had a board meeting chaired by the Chairman who would have said, "How do we proceed with our procedures?" On this committee I am in a minority on one or two things but, once the committee has decided, I will go along loyally with what it does. I would expect a board to do that. What has gone wrong? Why has that not happened? This is right at the top. Everything flows from the decision. Was it never discussed at board level or what?
Professor Klug: Can I be slightly impertinent in my answer?
Q11 Earl of Onslow: You can be as impertinent as you like. You can dance cartwheels on the floor if you wish to, I do not mind.
Professor Klug: I think it is an excellent question. Some of you will remember that for a short while I worked as a special adviser to this committee and I had the privilege sometimes of sitting in on your deliberations. My short answer to your question, Lord Onslow, is that we never, in my experience at the board, were able to conduct discussions among ourselves of the quality that you routinely do. I am afraid that I found our discussions at the board extremely unsatisfactory. I think I can speak for all five of us. I say five because of course Baroness Campbell has also resigned and I know she will be providing you with written evidence; I spoke to her this morning and she was happy for me to put that on the record. I think we were very frustrated at the lack of capacity of the board to have frank, open, transparent and in-depth discussions. I have never felt so managed in my life, or at least since I was very much younger than I am now, as my experience on this board. Some of us, including Commissioners who have not resigned - and I hope they will not mind me saying this - would argue very strongly a little time when we could talk among ourselves, as I know you do every time you meet. It was like a spectator sport; we would have as many people sitting round the room, staff, listening to us as we would ourselves, minimally as many, sometimes more, so that you never built a coherent, corporate body. I understand that since we have resigned that proposal which I asked and asked for - and I do not think it was an enormous amount to ask and other Commissioners asked for it too - has been implemented, I am glad to say. My impertinence is to say that we never did discuss issues in the way that I was able to watch you discuss them.
Q12 Earl of Onslow: I have one tiny supplementary. Did somebody say to the Chairman, "We must have this discussion and this must be brought up at board level? At the next board meeting I am going to put it on the agenda?" If not, why not?
Professor Klug: My answer to that would be that I do not think we expressed it in those terms. I do not know what my colleagues would say. I do think at the beginning, when some of us still had the fight in us, we did quite often ask to discuss fundamentally what we are there to do, how do we do it, how do we get policy on difficult issues. We had a private meeting once. We were going to do it and we never did.
Q13 Earl of Onslow: You could have put it on a board meeting agenda, could you not?
Professor Klug: I stand accused, rightly, of not being able to fulfil the obligations of a Commissioner as I understand them, and that is why I felt I had to resign.
Q14 Chairman: To put it bluntly, you were not the Commission; you were a collection of individuals with no corporate identity?
Professor Klug: Yes, one-to-one conversations - and I think it is called sofa government when it is in Number 10 - was very much the style, absolutely. That meant of course that if you perhaps had less access to the Chair, for whatever reason, you were obviously disadvantaged in your capacity to influence, yes.
Sir Bert Massie: There was also a case I remember when the Chairman agreed to put something on the agenda, at my request. At the next meeting it was not on there. It was this sense of frustration that the normal rules of running a corporate body did not seem to apply.
Q15 Dr Harris: I just wanted to take you back to something that was said about announcements from the Commission being reported - and I have to say I accept that the press will take liberties, but let us say fair reporting or not totally unreasonably reporting - or being seen to be Commission policy or the views of the Commissioners as a whole when it was not. I have two examples. I thought perhaps Professor Hampton might like to deal with the assertion that multiculturalism was a bad thing essentially that we read about in the papers following a speech. To someone like me who has been involved in this for a while, not in a professional or expert a way as you, can it find it difficult then to find your political opponents saying, "I told you so"; even they are saying that multiculturalism is not a bad thing. The point is to ask perhaps Franscesa this. When the Chief Executive gave a speech about women in business, and I checked the speech and it seemed to be fair reporting, I found that women's rights in the business world were actually bad for women because it just meant that businesses would pull back somewhat on equality or at least maternity rights and so forth because of the effect it was having on recruitment. I would assume something that controversial would be approved. I would be interested to know if those sorts of things were approved in advance by the Commission.
Professor Hampton: Those were months of torture almost. This is my full-time job. I am an academic who has studied race inside
out and I do an objective analysis of the situation. What I found difficult to put my name to were
these wild statements that were being made with no evidence to support
them. That was just one thing. The other was something I commented on
last night: "Just because somehow we are
Q16 Dr Harris: I do not want to discuss the merits of it because it is not appropriate here necessarily. We can do that possibly in the next witness session. Was it approved by the Commission or did it just come as a surprise?
Professor Hampton: It came as a surprise, as did most of the statements that appeared because we did not get an opportunity to discuss it. We never got to see what the Chair was really going to say in his speeches either. Although we would have a bit of discussion, for example on marking the Rivers of Blood speech that we did, and we cannot seem to remember the title because it was so annoying, we were called together tokenly to discuss our views, and then a paper appeared that did not reflect any of our views. At times when we did put the pressure on, and you have asked why we could not put down agenda items, we did not even know what the agenda was going to be because we were not functioning like a proper Commission where we could say that we would like to have a discussion on this or that issue. We sat there and were told what the Chair was going to do.
Q17 Chairman: To follow up on this, Professor Hampton, you said what the position was before the event, that these statements were being made. If I were to make a statement with which the committee did not agree, at the next meeting I would be hauled over the coals by the committee. Mostly that does not happen, or not very often. After this statement about multiculturalism - and I certainly agree with Evan that it causes a lot of local difficulties as politicians - did you or could you hold the Chair to account for his speech? Did you discuss it in the board meetings? How did you follow up on it?
Sir Bert Massie: There were numerous discussions about policies that were announced which had not been discussed at the Commission meeting by the Commissioners as our collective view. They were basically just brushed aside. Eventually, we got round to getting an email the day before something controversial was being said. I can understand in a complex Commission it is not going to be practical for every single policy to be vetted by every Commissioner; that is not going to happen. Big issues really should be, and there were lots of big issues on which speeches were made; I do not know exactly what percentage of Commissioners but certainly a significant percentage of Commissioners disagreed. That is not the same as disagreeing when you have had a discussion like the situation the Earl of Onslow was suggesting. You have a discussion, somebody out-argues you, you are out‑voted; that is fine. That is democracy. When you have not even had the discussion, then it is more difficult to sign up to and that happened time and time again. We could not fulfil our role as Commissioners because a lot of these complaints we were making, and they were being made by myself and colleagues, were just not taken seriously.
Professor Klug: May I put on the record something I could not remember earlier. The headline was: "Equality Chief warns of race cold war". The extract from the speech is: "However, we will have seen the emergency of a kind of cold war in some parts of the country where very separate communities exist side by side", et cetera. I have to say that we had not discussed that. If we had, I personally would have object to that.
Q18 Chairman: The Chief Executive, not the Chairman, which is why it is interesting.
Professor Klug: We did not discuss that. There were some sub-groups and I think there was some discussion of the policy in the Better Working Group, if you like, that was set up, but it was not discussed as a board to my knowledge. If I am wrong about this, please correct me, colleagues. What I do remember is that when the Chief Executive was reported as saying those comments, and she actually did deny that she had said them as reported, there was a considerable discussion, frankly, at the board about it, and Commissioners expressed their views very strongly in opposition. I remember noting at the time, and I am going to be exceedingly frank with you - which I am in the mood to be having not spoken publicly, privately, on or off the record about any of this before now - very graphically that there was a different mood in the board when we were holding the Chief Executive to account than the Chair. I felt very uncomfortable about this because I felt the same issues were at stake. Indeed, I remember saying ---
Q19 Dr Harris: They are both Commissioners, are they not?
Professor Klug: Yes, both Commissioners. I said that in both case we felt we had not been sufficiently consulted and in both cases that we were uncomfortable with the press reporting and felt that some of the comments made were quite obviously going to lead to that reporting, even if that clearly was not intended by the speaker. There was a feeling of discomfort in holding the Chief Executive to account, in my opinion - I wonder if my colleagues would concur with this - that there was not from the Chair. I think there was an atmosphere that I experienced of intimidation sometimes in holding the Chair to account. There would be those Commissioners who would fiercely oppose you if you raised your voice - I mean just raised the issue of, not raised your voice as in argued - to disagree with what the Chair said and that sense of being strongly reprimanded I think did create some atmosphere of intimidation. I do not know whether my colleagues would concur with that.
Professor Hampton: I would concur. I have seen behaviour in the CRE and I have seen it continuing in the Equality and Human Rights Commission. People were isolated if they asked a question. The place was run like a political institution. Equality and human rights should be apolitical as far as I am concerned; it should be a cross-party issue. Basically, it was run like a political organisation. There was an inner circle and people were vying to be in the inner circle and some would not dare challenge the Chair, which is their duty representing the public interest, as far as I am concerned. When we did challenge the Chair, we were either ignored, isolated or it was as though we had not spoken. The interesting thing is that the nature of the way the minutes were edited is remarkable because you would make some really significant points and, as Bert said, you would come up the next week and say, "But I said this and it is a serious point I want recorded" but it was edited out of the minutes. If you ask me, the whole thing was a circus.
Q20 Dr Harris: I have read your minutes and I only saw that raised once or twice, say an issue by Bert, if I may call you that. I did not see it anywhere else, I have to say.
Mr Summerskill: If I may just add a brief observation on this, I think sometimes these situations were exacerbated, and this does go back to the issue that has been raised about being a champion or a campaigner. I think sometimes they were exacerbated to some extent by the fact that the Chair had actually brought in a communications director, a very distinguished journalist, on an extraordinarily high salary, in my view, and I say that as a former journalist. The approach to most of their work seemed to be to try and spin things into stories or controversies and my sense is that that is not the right approach for a statutory Commission whose job, in some sense is not to participate in a ding-dong over issues but actually to try and build consensus right across the political and public domain. The problem is that if everything is turned into a story to be spun, then inevitably it is presented to journalists - and I can say that from experience - in a way that is likely to be controversial rather than necessarily to be consensual.
Q21 Mr Timpson: It is concerning to hear that certainly Kay has taken the view it was run like a political organisation. Although you have said there was nothing wrong with the structure, I wonder whether we need to be looking at the process of appointment? Could I therefore ask you when we are looking at the credibility of the Commission whether it would better if the appointments of the Chairman and/or Chief Executive of the Commission were either approved or vetoed by this committee as part of a pre-appointment process in a meaningful way that would ensure that there was public confidence in that appointment?
Professor Hampton: Absolutely, and I think that is part of the reason why we are all at this stage. Whilst you could say to the public that we are in a teething period and this is a new organisation and we are finding ourselves, and whatever excuses have been made for its failure, that does not distract from the fact that somebody has not performed. If I am assessed on my performance at the university and I perform so badly, I would be demoted, not promoted. To reappoint somebody about whom we warned senior officials in government as to our unhappiness is not something that has just happened. We did not just go to the press. We actually spoke, we followed all due governance regulations in terms of who we are. None of us are amateurs at this; we have sat on several bodies. We did not want to make this a public issue and create problems. This is playing into the hands of those who are sceptical of public authorities and quangoes, if you like. We wanted to avoid that at all costs. We told senior officials about some of our concerns and about the danger of reappointing the Chair. Despite that, they did it and we felt absolutely helpless to do anything as Commissioners. This is why we are here. We fully appreciate that you have taken this seriously to see what went wrong. I do think that we should all be assessed on what that body needs as an accumulation of skills and not to which political party you have an allegiance. I am in it for the issue and the cause rather than playing politics. Some of the inconsistencies in the statements that were made were purely driven by politics, if you ask me. Something could be favourable on one day and suddenly it became unfashionable in the name of modernisation. When we did challenge it, it was a case of us being politically naïve or traditionalists, these kinds of accusations. To answer your question directly, yes, I think there should be a higher level of scrutiny, particularly of the Char and the Deputy Chair. These are very highly paid posts. I am absolutely gob-smacked - and I was going to leave as Transition Commissioner anyway - that my fellow Commissioners were asked to re-apply for their jobs. I have no objection to that - best man for the job. Why were not the Chair and the Deputy Chair asked to re-apply for their jobs and assessed in the same way? This is an equality organisation we are talking about. Where is the equality there?
Q22 Lord Morris of Handsworth: To follow up with a question, you gave an unqualified "yes" to the principle of some sort of parliamentary committee scrutiny. This of course is a committee with a totally different remit in the context of its role. What, in your view, would be the appropriate parliamentary committee to oversee the Commission's work and indeed to look at issues around appointing the Chair, say?
Professor Hampton: I can only draw on what I thought was a very good model in
Chairman: I should say that DCLG committee has the right to conduct pre‑appointment hearings for the Chair but not for re-appointment, though of course it is not a full confirmation hearing like you have in the States, as we saw with the spat earlier in the week with the Children's Committee.
Q23 Earl of Onslow: The fact that they took no notice of what they said is neither here nor there.
Mr Summerskill: May I say, in response to Mr Timpson's point, one thing? As someone who works daily with more than 100 public companies, one of the things that I have felt, in terms of representation on the Commission, was missing was big business and employers. There is no representative of the CBI, there has been no representative of the Federation of Small Businesses. I hope that ministers in future might take that into account when making appointments. The way in which appointments are made is critically important. I am certainly aware that Trevor, as Chair, has a least twice to my certain knowledge interfered inappropriately in the appointment of Commissioners - once successfully and once unsuccessfully - in order to promote the candidacy of either inappropriate or less well qualified personal friends of his. I do think when it comes to the appointment of the Chair that it is perfectly proper that that should be scrutinised by a committee such as this. Indeed, I am in no doubt that the Director General responsible for the Government's Equalities Office will have made a recommendation to ministers about whether to re-appoint. You might want to ask him what that recommendation was.
Q24 Chairman: Can I pick up one point. Are the Commissioners there as representatives of particular interest groups or pressure groups or are you there because of your skills, knowledge and experience, with a view to creating a corporate function?
Mr Summerskill: We are categorically, and the recruitment process - without boring anyone to death with job descriptions and person specification - did make that clear at a very early stage.
Professor Klug: If I may add, it is worth noting that the International Co-Coordinating Committee of the United Nations, which gave the Commission accreditation A status, did raise queries about the appointment of Chairs and Commissioners. Although it is not an absolute hard-and-fast requirement that Chairs and Commissioners are verified by a parliamentary body or some other independent body, it is very much preferred by the UN, and I suspect they will be watching now how the body moves from here. I do think, frankly, that the bottom line is that it is not acting as a human rights commission. There is no-one to hold it to account to do so - no internal body. The body primarily reports to the GEO, the Government Equality Office, which does not have responsibility for human right. I think the Ministry of Justice tries to input into that process. Certainly I believe the Commissioner on the human rights inquiry was never brought in in any shape or form to account for our performance on human rights to any government body via the Commission. So I think there is a whole layer of lack of accountability in terms of this being a Human Rights Commission that unfortunately has had very significant results. When Trevor consulted the Chair, when he wrote to the Minister for Equality, he accounted for our work so far - and I think this was in July of this year - and there was barely any mention of human rights in the most token sense. The report was several pages long and I think it referred to the plain guide that we produced and a single case. So there is no real internal sense. I cannot stress this enough. I think all my colleagues would nod in agreement with this and bear me out: the Commission has not got a sense of itself as a Human Rights Commission, just not at all. We are at the very beginning of baseline here, and I think the lack of accountability has contributed to that enormously.
Sir Bert Massie: I agree with all of that and may I make another point? I have been sitting on quangoes of one sort or another for about 30 years and this is the first time I have know the entire body being asked to step down. Normally if you are reasonably competent, you get a second term automatically. You have to apply for a third term under the Nolan principles. Some people have suggested that part of the reason for this, and I do not know whether it is right, is that the new Commission might be even more general, that there might not be an effective Commission at all. I think that needs to be watched. I am sure ministers will put in the right people. We need a strong Commission. This is an important body. It would be a pity if only people with whom the Chairman felt comfortable were able to succeed to be Commissioners.
Q25 Chairman: Your fear is that it is going to end up as a smaller Commission of "yes" people and toadies?
Sir Bert Massie: There is a danger of that. I do not think there needs to be a smaller Commission, as came out of the Deloitte's study. When I chaired the Disability Rights Commission of 15 people, it was just run collegiately. We never had any of these battles. We could operate as a group. It is not about numbers; it is about leadership and chairmanship.
Professor Klug: Could I just put something else on the record, if I may, quickly. Bert has just referred to the Deloitte's report, which has been quoted many times by the Chair in the last couple of months. These were the external consultants who reviewed the way we work after some of us expressed concern at a private board meeting about governance issues and in particular about the perceived conflict of interest of the Chair's private consultancy on equality and diversity. This consultancy happened and there was a report at the end of it from Deloitte's, which said: reduce the size of the board to approximate 10 to 12 by not replacing transitional Commissioners or any others what leave as appropriate. It did not suggest, and it was not agreed by the board, that that meant that everybody should have to re-apply for their posts. I personally did not agree and I asked for it to be minuted. I had private email correspondence with the Chair who concurred that I did not agree with this recommendation. There was a tendency at board meetings just to say "this has been unanimously agreed". You had to fight hard to be heard. I wanted it minuted that I disagreed. I am not sure that it ever came out in the minutes but the Chair concurred that I did not agree. I simply did not agree because I thought there was nothing to say here because the three transition Commissioners will be leaving. If people go, we should then discuss it. Yes, you could argue the toss over the ideal size of the board, of course you can. I am open to persuasion that this board could have benefited from being smaller, but it seemed to be entirely missing the point of what was wrong with our body. The idea that all these problems we have brought to you today came down to the size of the board frankly was risible as far as I was concerned, and I wanted that noted.
Q26 Chairman: Lord Lester has been very patient but you have just raised this consultant's report. Was the purpose of the consultant's report basically to do what we are doing today, which is to look into these corporate governance issues and make recommendations?
Professor Klug: Yes.
Mr Summerskill: At rather greater cost, if I might say.
Q27 Chairman: I am sure. Were the terms of reference agreed by the board in advance?
Professor Hampton: Some of us were in the sub-group that went off to a fancy place to discuss the findings. I have to say that when we saw a record of the findings, and each of us was interviewed privately, it seemed that some of our colleagues, and I am sorry to say this, are happy to express their feelings on a one-to-one basis but when it comes to a collective answer, I have a fear - and that in itself tells you a lot - about speaking honestly about what they feel. That was a remarkable finding: 98 per cent of the board said that they had a problem with the leadership and the Chair. By the time that report was edited, it revealed nothing of what we saw in an earlier version.
Professor Klug: We were not given anything to take away. It was only on the screen.
Professor Hampton: What you had is that sterilised version, which simply focused on the structure and distracted from the core.
Q28 Chairman: Going back to my earlier question, were the terms of reference agreed by the Board - yes or no?
Professor Hampton: Yes.
Q29 Chairman: The next question: was the report fully published?
Professor Hampton: No.
Q30 Chairman: The next question: how were the consultants selected?
Professor Klug: We never had anything to do with that.
Q31 Chairman: Has the final report ever been published at all?
Professor Klug: Not to my knowledge.
Q32 Chairman: Has it been published to the board?
Professor Klug: Yes.
Q33 Chairman: Is that the full report or a summary?
Professor Klug: That is a summary.
Mr Summerskill: That is a summary. There were certainly things that were summarised at the meeting with the consultants and never fully shared.
Professor Klug: Certainly the survey that Kay referred to that we were shown on the screen, and I cannot remember the figures, showed considerable and surprising unanimity in terms of what we were set up to do. What was very surprising to me was the concern about leadership. That has never been published or given to any of us.
Q34 Chairman: That is not reflected in the document from which you have just been quoting?
Professor Klug: I do not think so.
Professor Hampton: The irony was that that was the purpose of the inquiry because we had all expressed a kind of discomfort with the accusations of conflict of interest and how it was damaging the board and the work of the Commission. That is why we had the inquiry, and then it turned into something like trying to say that the board was dysfunctional, which was really a unique transformation from where we started off to where we ended up.
Chairman: It sounds dysfunctional. The reason for it is another matter, is it not?
Q35 Earl of Onslow: Have I got this right, and I may be being a bit thick here. The board did not discuss the terms of reference properly - is that right?
Professor Hampton: Yes.
Q36 Earl of Onslow: Surely, it should have said, and this is what we do here: "These are the recommended terms of reference. Do you agree?" and you go through them item by item and if people have points, you discus them and amend them or drop them, as the case may be. That is what we do with reports. Do you not do that at all?
Professor Klug: The terms of reference as far as I recall were discussed. I do no think we had any problem with them. The review was going fine, as we were trying to describe. We were all privately interviewed. We felt we were making progress. We then had a very important private meeting, and it was absolutely correct that it was private; I would not have wished in a million years to be discussing it with you or anybody else at that point. We thought this was an opportunity if you like, in the nicest sense of the word, it have it out, because as far as I am concerned we were all people who had mutual respect for each other; we all came from the same stable; and we all believed in the same ends. Let us talk about what is going wrong. Unfortunately, at this meeting one senior member said they did not recognise anything that was on this board, even though there was significant statistical evidence of what people were saying. There were no names given - 80 per cent felt this, 70 per cent felt that. People felt intimidated when it was said by a senior member that they did not recognise anything and we never had the discussion. Then we come back to the board and we get a report like this, which did not, as far I remember - and I have not re-read every word, I am afraid - touch on that survey of our views, so that it moved into another kind of discussion, which was process, issues like the size, which is why I asked for my objection to the size issue to be minuted. Yes, we could have a discussion about the size of the board but it was risible that this was what was wrong. In fact I think we benefited by having such a cross nature of skills and experience.
Earl of Onslow: It sounds to me like a totally dysfunctional organisation.
Q37 Chairman: I think we need to move on. At the risk of making policy on the hoof and announcing it on behalf of the committee, we will need to call for the terms of reference, the slide show that you had, and the reports and working papers.
Mr Summerskill: To answer briefly Lord Onslow, if I remember correctly, the terms of reference were not things that anyone would dissent from. The issue was that if you are saying we will have an overall review of governance, the implication or the assumption was that this would lead to a review of various capabilities and that would not necessary be made explicit in the terms themselves. It was when one started to delving or drilling down that you got the sense of what people regarded as one of the causes of the dysfunction.
Professor Klug: I do not think personally that it was dysfunctional. I would like to go on the record as saying that. I think it was hierarchical, unaccountable and untransparent. You can have a very hierarchical controlled board which is not dysfunctional, if you like. It does function but it just functions without Commissioners participating as expected of them, taking money from the public purse. That is my personal view.
Lord Lester of Herne Hill: I should declare a few interests. First of all, 35 years ago I invented the system we are now talking about in four months. Secondly, over that 35 years I have advised the equality agencies in the past. Thirdly, I have been on this committee with Baroness Prashar in seeking to create it, she wanting a single Commission and I wanting two. We finished up with what we have. For the purpose of my questions, I want to assume that everything you said before is accurate and that what you really say is that the Chair should not have been appointed or re-appointed and that most of the problems are to do with him, I suppose including the loss of the Chief Executive, Nicola Brewer. Let us assume all that is correct. I want to assume also that there will be a change of government at some time after the next election. What I would like you to think about is whether Professor Hansen is really correct when she says that there is nothing wrong with the structure. What I want to do for the purpose of my question is to ask you to think of the next government who, having read your evidence, will say to themselves "why are we spending £70 million on this lot, why should we go on in this way?" I really want you to think about structure because I am thinking of the future and not the present and not the past.
Q38 Lord Lester of Herne Hill: The question is: Is it sensible to have a structure in which there is a part-time Chair, and you have already answered about his appointment, in which you have Commissioners at all rather than a fully professional body with qualified people who act as law enforcers, regulators and public advocates? Is it really sensible to have people like yourselves in these positions rather than having, like the Financial Services Authority, a body without Commissioners at all? I ask the question because the reason you are here is because Roy Jenkins decided 35 years ago that the law required people like you to make it legitimate, but, 35 years later, do we still need to have a bunch of Commissioners rather than properly qualified professionals to run the agency?
Professor Hampton: If I may answer that, I think it is absolutely essential because
you run into exactly the same difficulties you are having now, even though we
have Commissioners, if you do not have Commissioners. The idea for that kind of model means that
you will collectively from different backgrounds and aspects and knowledge
bases set a strategic direction for the body, but most importantly you are
representing the public interest from a wide spectrum of people. If you get one person as the Chair or one
business person, it becomes a one-man show.
What we are describing here today, and we are playing around with words
- functionality and dysfunctionality - is a system that has been proved to work
internationally and nationally and is working in
Q39 Lord Lester of Herne Hill: May I ask you a follow-up, and I know others will want to come in? If that is right, given that the statute that sets you up built in independence, built in merit appointments of the Chair and all of you, and given that your job is to provide safeguards so that it does not become a dictatorship run by one person, why have you not been able collectively and individually to stand up to the Chair whose conduct you disapprove of and make sure, without resigning, that you would do what you were there to do, which is to be watching over him and in the interests of everybody? I am only putting it in that hostile way because it seems to me a fair question to ask you.
Professor Hampton: Absolutely, and that is why I started off earlier by saying this is a unique situation because in any other organisation there would have been a vote of no confidence in the Chair, but you have to understand the behaviour patterns. How can I put it gently? People for some reason, highly powerful people, felt unable to challenge some of the actions. Some of us who did it were regarded as being difficult. There were also issues of interest that were played about with. On the surface, you were superficially being promised - do not worry, I will take care of that. I think that is where sometimes personal interests became entangled with public interest; people forgot. I said publicly, in fact I wrote an article about it, that people once they get into positions like that tend to forget what they were employed to do in the first place, and that is to hold people accountable and make sure the business is done properly. Yes, from that point of view we failed as a board.
Q40 Lord Lester of Herne Hill: Now you have a new government with all four of you in and they say, "How do you stop this happening again and why is it valuable to keep the Commission as it now is?" You need to have answers to that question, perhaps now or hereafter. We will have another government coming in fairly soon. There is bound to be another government.
Sir Bert Massie: Whatever, there are some very basic issues here. The Disability Rights Commission I think was universally agreed to be successful and it was exactly the same model. It was about the leadership. The Disability Rights Commission did a great deal on the needs of people with learning disabilities guided by people with learning disabilities. With respect to lawyers, smart lawyers could not have brought us that. It was brought to us by people with learning disabilities; it was the people who were facing the discrimination every day who came to us, and they were actually Commissioners, and operated collegiately. The structure can work; it worked with the DRC with a large board. I dare say it was chaired properly. The reason why we could not hold the Chair to account is that the Chair reminded us, and accurately, how well positioned and connected he was. We had nowhere to go. He would boast about his political connections. Here was a very powerful guy, very powerfully politically connected. Eventually, you got the people here and Baroness Campbell, all of who are serious people, not people who will just walk out. We know about corporate responsibility; we know about following the vote, but we just felt we had nowhere to go. When the Chair was re-appointed, we all felt great sadness. We had to resign and my case I had to resign and make it clear that this is why I was resigning, that this was bad decision. The issue before about whether the Chair should be subject to ratification here or elsewhere might also be extended to the Commissioners.
Mr Summerskill: If I may, I will try to answer each of those points relatively briefly. If I were being asked to advise a future government, first, I think I would actually resolve the issue of whether the Chair is part-time. In fact for most of the Commission's history the Chair has been working three and a half days a week, which is an extremely odd place between being an executive Chair and being a part-time Chair. My recommendation, if asked, would be that it is appropriate for public bodies to have a part-time Chair for a small amount of time on the same model that has works successfully in much of the private sector. The second reason that I would say that both yourself and Lord Jenkins of Hillhead were right 35 years ago is that, at the end of the day, any body needs to have scrutiny of some sort, and Commissioners, whether they are nominally Commissioners or board members, do have the capacity to offer that scrutiny. I think the view, although again you must ask them, of the National Audit Office would be that at least on some of the very thorny issues of the Chairs of various conflicts of interest over the last couple of years the Commission, and certainly its audit committee, have offered some degree of scrutiny and protection that would not have been there if that had not existed. Thirdly, on the issue of why did we not make things happen, at the end of the day, and this is something I have personally wrestled with, I do believe ultimately if you are sitting on a board, whether of a public company or a public body, if you cannot make it happen, that is the point at which you say, "I am terribly sorry, I will not cling on to this", and it is right and proper to step down. The fact that both the independent members of the Commission's audit committee have come to that conclusion simultaneously without any consultation I think suggests the care that was given to many people arriving at that final point.
Professor Klug: Of course they are professionals exactly as Lord Lester suggested, and they resigned as well.
Mr Summerskill: They are professional auditors; that is their function.
Q41 Lord Lester of Herne Hill: You are not suggesting to us that it is like Humpty Dumpty and you cannot put the pieces together again. You are suggesting to us that it would still be possible to have a Commission that could fulfil the mandate.
Mr Summerskill: Categorically, yes.
Professor Klug: Yes. I think it was a very fair question, if there is time for me to answer it. I would like to say, Lord Lester, your judgment all those years ago was impeccable as ever, I think.
Q42 Lord Lester of Herne Hill: I am not so sure.
Professor Klug: I have tried to play it through in my head, and I think all the problems that we analyse, if there is any truth in them, point in the direction that a strong Commission is absolutely essential and that this function does not stay in the hands of one person. If you think of our roles as ambassadors, it is crucial that the idea of equally and human rights is not seen as the product of one person. In fact, too often it is described as such outside, externally. I think that is unfortunate. It is very important to people in our society to own this idea. They see it championed by a wider group than one human being. On that level, I think it is crucial. I think Commissioners provide a link with the grass roots. Some of us do that better than others. I probably do not do that as well as others do, but it is a crucial link to people out there who are really suffering, who feel really vulnerable, that Commissioners are able to bring their issues to the table, not always with great comfort, I have to say. I do remember, and I will say this, being told directly by a senior member of the board, "Why is it that people speak to you about what is wrong? What is it about you that people speak to you about what is wrong?" I remember being really discomfited by that statement because I thought that our job as Commissioners was to bring these concerns to the board, rather than externally. The third function, of course, as you say, of Commissioners is to hold the Chair to account. I stand before you saying that I personally feel a sense of failure that we were not able to deal with this without coming to you here publicly today. I regret deeply that we have had to do this and welcome the opportunity that you have given us. I am extremely mindful that a future government may come in - I hope not and I do not think it is inevitable at all because I think that all parties have expressed support for this body when it was set up, and I believe that is sincere - and that we could contribute by this evidence to a desire to try to reduce the body. However, at the end of the day, we were not able to do our job as Commissioners internally; we tried and tried. It feels to me that today I am finally doing the job that I was paid by the public purse to do, and that is to hold this body and this Chair to account. One final point about why we were not successful: I cannot answer this and all I can say is that if were being unanimous as a board, I think we could have done it. We were not unanimous. There will be Commissioners who will disagree with us. I am afraid there are also Commissioners who agree with many, not all, of the things we are saying, who did not feel comfortable to speak out. I cannot explain to you why but I can only tell you, if I am believed at all, that that is the case, and there were many.
Q43 Lord Morris of Handsworth: May I say that the conversation we have had so far has really coalesced around the Chair, and of course all of us here have observed this debate over, for me anyway, decades and have been part of it. I am never persuaded that an organisation is just about one individual. We are very fortunate to have your presence this afternoon; you are the people who have been so strong that you have taken the walk. I am wondering whether or not, if we had the same people who have stayed on as Commissioners what the story would be. Despite what you have indicated about the inner group and the outer group, the fact of the matter is that you all carried the same degree of responsibility. I have seen no evidence that people from whom we have not heard are any less committed to the cause. I am just wondering whether or not we should be stepping back and looking at this, following Lord Lester's comments about structure and whether or not the inherent problems that the Commission faces and the experience are inherent in the merger itself. We have put a series of interests together, discriminatory interests, where everyone started from different positions. It was said earlier that here we have a chairperson who opposed the merger in the first instance and then blessed it and was charged with the responsibly of implementing the new mandate. Would you suggest to us that we should be talking to a wider group of Commissioners in order to get all aspects of the conversation, so that we can make a value judgment about whether it is a failure of leadership or a failure of structure within the overall context of the statutory limits you have.
Mr Summerskill: May I say clearly and re-state as much evidence as possible? One thing I certainly would remain crystal
clear about, and I think many others would too, is that in plain English terms
the function of the Commission is to determine how all sorts of different
communities rub along together in 21st century
Q44 Lord Lester of Herne Hill: On that last point, just suppose that, say, Nicola Brewer, a professional, was a professional Chair and Chief Executive, and the rest of you were the Commissioners performing all the valuable things that you do, would that not meet many of your concerns because you would have somebody there who was not political but was running the organisation from a professional point of view? That would not be a radical change but it would require a different kind of leadership.
Mr Summerskill: I do not disagree with that, although I would say that you might well end up with people who looked a bit like us in some way or another because we all have professional backgrounds around equality as well as management and leadership. Certainly, having a Chair who was not either political or indeed overtly and admittedly party political, I think would have made the job of the Commission and Commissioners much easier.
Sir Bert Massie: Before the Commission was established, there was quite a lot of debate about the characteristics of the Chair, with no name in mind at the time. We were basically down two options. One was a Chair from the equality or the human rights field, who would be an activist in some sense, or you could simply have a professional change manager; you could just bring in a manager because the skills in equality or human rights would be in the rest of the Commission. You could therefore appoint somebody who was not an expert in the field but had intelligence, had good chair skills and could get a collegiate Commission operating. Going back to Lord Morris's point, my background was clearly in disability, and there was I think an assumption when I went on to the Commission that all I would talk about would be disability. In fact I did not speak much about disability at all; I spoke mostly about corporate governance. I thought if we got that right, we would get an awful lot of other things right. I was impressed by the fact that people were prepared to leave their shields outside when they went in; they would look across strands. It was not fractionalised in that "I represent the gay community", "I represent black people"; it was not that sort of discussion. What I think is lacking and has been lacking is the ability to build up expertise amongst the staff that caters for the strands. The Commission has not done a great deal on sexuality; it has not done a great deal on age. You need bodies inside the Commission that have that expertise, not to create silos, not to create little commissions within the Commission. You need the expertise so that you can either do some things which are strand-based - and a lot of the work has been strand-based, a lot of the equal pay stuff is strand-based, today's press release was strand-based - but you could then bring those strands together for some good thematic work. If, for example, we could really get a respected agenda going and you could really do something about bullying, overnight you would get rid of homophobic bullying, bullying against people with learning disabilities, people with physical disabilities. An anti‑bullying agenda would help us all. It was not a case of people trying to draw back into a strand. What the Commission does not have and has not built up is sufficient strand expertise. That is because it started up by aligning itself and saying "We must be non‑strand specific". In fact, it would have succeeded better had it done strand and extra strand thematic work and then it could have gone ahead on two fronts quite successfully.
Professor Klug: Is there time for me briefly to respond to the strands, if I may, that have just emerged? One is the strand-based nature of the body; another is talking to a wider group of Commissioners than ourselves; the third is having a professional Chair. I would like quickly to respond to each of those, if I may. I agree with Bert's description; I think there was remarkably little dissent or tension between us on the issue of strands, but there is a capacity for the body and I think I should just tell you that the capacity of the body to function as a human rights commission is close to zero. There is almost no human rights capacity within the 500 plus staff. The Chair of the human rights inquiry and myself had to do a tremendous amount of work. I think Bert was very involved in the Commission on the human rights inquiry along with Dr Neil Wooding and he would tell you that sometimes we had to act in lieu of staff. There is a reliance on consultants as good as they are; there is a lack of human rights capacity in the body that may be being slightly addressed now. That meant that the body could not take advantage of the fact that it could approach issues from the human rights point of view and use human rights standards to look at issues like bullying and care homes and hospitals. It did not do any direct work with any public bodies in trying to implement human rights standards in my time there and make sure that the rights come to life. The inquiry basically took out almost all the human rights capacity other than enforcement of cases. That leads me on to say something about the staff. I want to answer this question about what kind of body it is by mentioning the staff because of course the Commission is only, if you like, the body that has to hold it accountable and the body that is the first public face of the Commission, but actually its real strength and power and life is within the staff. There are some tremendous staff in the Equality and Human Rights Commission. I think that they partly look to Commissioners to be able to express some of their concerns, not that we have the full breadth and understanding of them. If you took away the layer of Commissioners and professionalised the whole body, you would be talking about a management structure that in my view lacked soul, and also lacked the opportunity for staff who feel committed and passionate that perhaps the body has not taken the direction they would expect, given its clear mandate. Without Commissioners to be able to express some of those concerns, they would have really nowhere to go. For that reason, I do not think it would be a progressive step to have, if you like, a professional Chair, although I do think there is work to be done to look at the relationship between the Chair and the Chief Executive. It is not a unique model by any means; it is standard in human rights commissions around the world, but there does need to be an opportunity for Commissioners to feel that they understand their role more - we had a half a day's training each I think - and to know where to go, without feeling we are being disloyal, which was a commonly used word, if we feel that there are genuine problems we wish to raise and wish to have resolved without having to go public like this.
Q45 Chairman: I suppose that begs the question, the point you make about human rights and its low profile to put it as neatly as I can, to what extent was the human rights inquiry concerned with promoting human rights within the organisation?
Professor Klug: It was almost entirely about that, Chairman, but not all of the evidence. We had some wonderful evidence about things going on around the country and some marvellous discussions and dealing with some significant sceptics on human rights, but the overwhelming message we had from the evidence is: what are you doing? Therefore, we did spend over a year basically having an internal discussion, in my view, about what we should be doing. I personally wanted us to get on and do it, but this was an example of where one was not able to have an impact.
Q46 Chairman: I suppose that is the answer to the recommendation that the Commission should assume a leadership role in raising public awareness of the importance of human rights and the Human Rights Act. The answer is what you have just given us, that it did not have the capacity to do so.
Sir Bert Massie: There was nothing in the human rights report about the Commission that we could not have done a year earlier, quite honestly. I have the sense when working with board members, and as Francesca said we had to work quite hard on it for a number of reasons, that it was a bit like the old royal commission. It had been set up to delay doing things. I think now it is a credible report. It does give the Commission at least a steer on what it should be doing. My anxiety is that, despite one or two staff who were on the ball on human rights, the Commission is not taking us seriously. My worry about this goes back to something I said earlier. The equality agenda can do a lot for disabled people; it can do a lot more than it is doing, but the human rights agenda can do so much more. The human rights agenda is at a level at which no service should fall below. It can incur support and there is a whole range of things they can do, and that is so critical. If we can get that human rights culture really embedded in the country, disabled people's life opportunities in this country would rocket. The Commission is the only body out there to do that at the moment.
Q47 Chairman: We are trying too but you have more money that we have. It is a pity that you have not been able to do some of the things that we would like to see you do. Indeed, we have made recommendations to that effect in our own reports.
Professor Klug: May I say that we were not on the record at the time but I personally was very worried about the inquiry distracting us from getting on and doing the work. I felt that you had done the inquiry; the Minister of Justice had done the inquiry; the Home Office had done an inquiry. There was enough evidence. Marvellous organisations like the BIHR had done an inquiry and there were some fantastic staff who desperately wanted to get on and do some real human rights work. Some of the marvellous staff worked for the inquiry but there was no capacity-building while I was there to enable them to do that work, to integrate it, say, with the work on public sector duties. If one raised an issue like that, as I did sometimes, it was simply ignored. There is not a sense of itself as being a Human Rights Commission.
Q48 Lord Morris of Handsworth: Last year, Trevor Phillips told us that the Commissioners were narrow, both culturally and politically, and, in particular, lacked active supporters of the Conservative Party. Do you agree and what difference has this made?
Sir Bert Massie: Can I perhaps tackle that? I think the political persuasion of any particular member is irrelevant, quite honestly. We have been fortunate in this field that there has been support from across the political spectrum. What a Commission does need - and Ben was referring to this earlier - is a broad range of interests round the table. From the start, there should certainly have been business interests round the table. There was one person with business interests but there should have been many more. There could have been interests from other parts of society. Looking back on it, I know that in the Disabilities Rights Commission, with the support of ministers, I had a whole range of people from day one. I had business people and the Deputy Chair had been the Personnel Director of Ford Europe. You will know him, John Hougham, who went on to ACAS. That meant that I as a Chair, with all my limitations, and I have lots of limitations - you have probably noticed many of them - had someone else there who could fill that gap. That was about the collective representation of the board. What I wanted and what I got on that board was that I hardly ever heard a view outside the Commission that we had not heard previously inside the Commission, expressed different ways with different strengths of feeling, sure, but someone inside had raised the basic view. That gave me a solidness, I think. When the new Commission is being put together, I do not think I would say there should be so many trade unionists or Labour people, Conservatives or Lib Dems or whatever. You need to look at the interests of society which are affected by the issues and make sure you have a rounded board.
Q49 Dr Harris: This question of party politics, the fist time it has been raised by us in these questions was by Bill now, but it was raised by you en passant and directly in earlier answers a number of times. When people are appointed to any Chair in a primary care trust board it states the information in the press release and indeed in their declaration of interests which exists on their website for the non-executive directors, and your declaration of interests does not appear on the EHRC website; it lists there party political activity for information. It is not an implication that they act in that way, nor would it be an implication that you act in that way. I raised formally in a session here about a year ago, and informally, this question of why it is said that the EHRC happens to be populated by probably a majority of Commissioners who are members of the Labour Party. You may or may not agree with the Labour Party; it may not influence their actions.
Professor Klug: Some even vote for them on occasions
Q50 Dr Harris: Francesca, since I have raised this with you informally as well, is not reasonable if primary care trusts specify this information on the website that the public ought to know that this NDPB is clear about that as well?
Professor Klug: I have no personal objection, as long as it is not a misleading piece of information. Speaking for myself, I have no hesitation in saying that I have been a member of the Labour Party; that has lapsed.
Q51 Chairman: Have you resigned?
Professor Klug: I have not been active as a member of the Labour Party for donkey's years and it is virtually irrelevant, frankly, to my view on human rights where I am afraid I have had to disagree with this Government on many occasions very profoundly. The issue for me is that this body should not be run as party political.
Q52 Dr Harris: I understand that. I am making a slightly separate point.
Professor Klug: I do not think I have much more to say.
Q53 Chairman: It is to do with openness, is it not, really?
Mr Summerskill: I am alive to the sensitivities of this because I remember having been a school governor and having helped turn around a primary school in Lambeth, I was sacked I think in 2002. The explanation that I was given was that I was not a member of the Liberal Democrat Party. I can understand that these things happen.
Q54 Dr Harris: I wondered what your approach was!
Mr Summerskill: If I may come back to Lord Morris's question, in fairness, the very fact that it was put like that may tell us a little bit more about the person who said it than about the culture of the Commission in general. I can say that as far as I am concerned, since May 2003 when I was appointed to my current day job, I have abided by Part 4.4 of the Civil Service Management Code and have engaged in absolutely no political activity of any sort whatsoever, but I do think if you have a Chair who says "We ought to have people who are explicitly Conservative" in some sense that is an expression of his view that we ought to have political activists.
Q55 Lord Morris of Handsworth: In fairness, let us not take it out of context. It is right that we should say to you, because we were here and perhaps you were not, we were talking about a much broader case for the Commission in terms of the wider constituency that might support it. I have one last question which does in fact put the issue and the statements that I have just made which Trevor Phillips told us in context. Let me give it to you now because it rounds it up. Last year we questioned whether someone like Joel Edwards, who leads the Evangelical Alliance, which is an organisation that has historically opposed equal treatment for gay people, should have been appointed as a Commissioner. Having served alongside him, we are asking you what your view is. I make that point because of the previous comments about the Commission being narrow and whatever; it comes within that wider context of our conversation last year. In this instance, given the organisation Joel Edwards leads and the policy position it takes on certain matters, what is your view, having worked with him?
Mr Summerskill: If you are asking me that ---
Q56 Lord Morris of Handsworth: Not you personally. It is a question to yourselves as Commissioners.
Professor Klug: Personally, I would not be comfortable saying anything against any other fellow Commissioner, for whom I have the most high regard, respect and affection. I think Joel played a very credible role on the Commission,
Q57 Lord Morris of Handsworth: It is a question about whether they addressed the wider issues facing the Commission. It is not personal.
Professor Klug: I think he did. I thought it was quite a remarkable board. I found it a complete privilege to be on this board. If we were only able to use our collective strengths more, I think we would have achieved a lot.
Professor Hampton: I am very outspoken in my views, so I am not going to be polite. This is not personal against individuals but generally I would feel very uncomfortable to have somebody who openly makes anti-equality statements sitting on a board like that. I would think that is inappropriate. You have got to lead by example. You are promoting a message of equality and human rights and yet you have within your fabric somebody who holds very strong opinions and, dare I say, the same issue is going on about the BNP, especially in the run-up to their right to appear on public television. Yes, they have a right but we have organisations like this that ensure that the presentations that people make public do not have an impact on good relations. I think that is the issue we miss in terms of balance. That is what an organisation like ours should be doing, balancing people's rights and responsibilities and understanding the full remit in terms of the impact of their behaviour. From my perspective, if you ask me the question, no, I strongly believe that I would not want anybody, if you take away the individual you mention, who uses strong racist statements being a board member, even though it may be legitimate for them to express their views on any issue. The whole idea is that we are supposed to be promoting a culture where we do not have a hierarchy. Fundamental to human rights is that you do not have a hierarchy of people's rights. You treat those rights as even and equal. These are the sorts of things that I found fascinating and about which we never had discussions because it was too sensitive to do so because certain people had very strong views. For me, the very first day we said that we ought to be dealing with issues like how we advise the public when they have a tension between religion and sexuality in terms of their beliefs and what have you, what sort of guidance are we going to give people. We never really had those discussions, and that is what we lost, because people were sensitive to certain issues. I could be highly religious but that should not come into my discussion and the advice that I give.
Mr Summerskill: May I answer the question, I hope very directly, and I do not want to refer to Joel specifically; you can speak to him. I think he has expressed the view that his views have changed since he was exposed to a number of people from backgrounds he had not necessarily come across before. I would say, and this comes back to what I said earlier on about the way the Commission works, that my own view is that there should clearly be people of different viewpoints and perspectives sitting on the Commission because if the Commission is there to try and resolve tensions between wider communities, it ought to be role-modelling that itself.
Timpson: Kay, you mentioned earlier your
involvement as a Scottish Human Rights Commissioner and how you have drawn from
that experience to try and influence the shape and working of the committee
here. Now that you are down to that
single role again and you cannot influence it from the inside, what do you
think the EHRC could learn from the Scottish model? I think you touched on it briefly
earlier. Perhaps you could give us some
specific examples of how it has worked well in
Professor Hampton: I think that every new body that is formed needs to be underpinned
by basic values and principles. You do
not have to invent them; they are reflected in the human rights law. That is one of the things we miserably failed
to do in the EHRC, to have a collective ownership of the fundamental
principles enshrined in human rights law.
What is even more scary for me is that this body now has category A
status, which it could lose very easily.
First of all, it is not established in terms of
Chairman: Thank you very much. We have gone way over time, I am afraid, and we are going to have to draw the session to a conclusion. I think you have painted a pretty bleak picture of what has been going on but, at the same time, I think there is hope with the basic structures there. It is broken but it is fixable I think is the general message that is coming out of this. We will have to reflect on what you have told us and decide what we are going to try to help take the organisation forward. Thank you.