Equality and Human Rights Commission - Human Rights Joint Committee

Equality and Human Rights Commission - Human Rights Joint Committee Contents

3 Governance and leadership

Leadership of the Commission

RESIGNATIONS OF COMMISSIONERS

29. Six commissioners resigned, or announced their intention to resign, from the EHRC board during 2009. Nicola Brewer, who served as a commissioner by virtue of her position as chief executive, is discussed below. The other commissioners were Baroness Campbell, Professor Kay Hampton, Professor Francesca Klug,[49] Sir Bert Massie and Ben Summerskill. All contributed evidence to our inquiry.

30. Kay Hampton resigned shortly after Dr Brewer left. She said that she was "terribly unhappy" about "governance, mainly conflicts of interest, the manner in which the board was being run, the inability for board members to participate fully in discussions" and perceptions of the Chair's role in the engagement of former staff of the CRE who had taken redundancy packages.[50]

31. Baroness Campbell announced her resignation on 17 July. Her memorandum refers to "a divisive culture" on the board; unease about the direction of travel; policy being made by Trevor Phillips "on the hoof";[51] and potential conflicts of interest between Mr Phillips' private work and his role as Chair. She said:

32. Sir Bert Massie wrote in the Guardian in March 2009 that:

He resigned on 18 July 2009 and told us that "the straw that broke the camel's back was the reappointment of the Chairman". Corporate governance was his main concern, including the relationship between the Chair and the chief executive and the functioning of the board:

33. Francesca Klug resigned on the same day as Sir Bert but told us she had been considering her position since October 2008.[55] Her concerns also related to corporate governance:

She went on to say:

34. Finally, Ben Summerskill announced his intention to resign on 23 July 2009. He told us 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".[58]

OTHER PERSPECTIVES

35. In addition to the evidence we received from the former commissioners, some of the NGOs from whom we received evidence also commented on the leadership of the Commission. The European Network Against Racism referred to "closed, cliquey, manipulative" leadership and Race on the Agenda expressed concerns about the resignations of the former commissioners and what it regarded as a lack of leadership in the wake of the organisation's internal difficulties.[59]

36. Other commissioners took issue with criticisms of how the board operated. Jeannie Drake said "I certainly never felt personally intimidated. I never felt I could not articulate what I wanted to articulate".[60] Kay Carberry described the evidence from the former commissioners as "very far from my own experience":

She went on to say that "there was not perhaps widespread dissatisfaction with the style of chairing" and that lack of challenge of the Chair was "because we had confidence in the way the Commission's business was being conducted".[62]

37. Mr Phillips said that the picture painted by the former commissioners of how the board operated was "not one that I recognise" and he drew attention to the fact that the majority of commissioners had not resigned or expressed similar views.[63] He described board meetings as "pretty open":

In his view, the board operated by consensus:

38. Harriet Harman MP and Jonathan Rees were aware of the difficulties between EHRC board members.[66] Ms Harman said that there were "a number of complex reasons" for these problems which "[did] not necessarily fall within the responsibility of any one individual".[67] She suggested that the difficulties were an inevitable consequence of merging the previously independent equality commissions and drew a comparison with trade union mergers:

While there is no doubt that this is true, the Committee did not seek evidence about the establishment of the EHRC and the difficulty involved in bringing different strands of equality work and three separate commissions together to form a single human rights commission. Sir Bert Massie had made his concerns about this risk clear before the Commission was created.[69]

39. We did not fully consider the extent to which tensions between previous organisations contributed to the EHRC's problems of governance. Clearly the Commission Board did not become a cohesive and effective whole. A contributing factor may have been the complexity of bringing together legacy commissions, adding new strands, and having an overarching responsibility for human rights.

DELOITTE REVIEW

40. The EHRC commissioned Deloitte to review the functioning of its board in 2008. The EHRC published the final report of the review at our request:[70] we were also able to review a presentation to the board on "emerging thinking" which has not been made public.

41. Deloitte identified the following "organisational challenges" for the Board to address and made recommendations in relation to each of them:

The Board does not operate against clear, consistently understood roles and a common purposes.

The size of the Board makes it cumbersome and the composition of the Board is not ideal.

There a number of cultural and behavioural barriers weakening the Board's ability to perform.

The Board does not plan and prepare for Board meetings effectively.

We discuss later recommendations from this report relating to the respective roles and responsibilities of the Chair and chief executive as well as to the size and composition of the board.[72] Many of the other recommendations related to best practice in running board meetings. Mr Rees described the review as "sensible" and said there was "clear evidence of significant improvement in the way the board operates".[73]

42. A set of recommendations relating to reviewing and enhancing the role of the Chair and redefining the role of the Deputy Chair as a "senior independent role, responsible for assuring the effective working of the Board" has not yet been implemented and is awaiting a "second phase of the Board Effectiveness work programme".[74] The recommendations relating to Mr Phillips included "Chair to provide effective leadership for the organisation" and "ensure Chair leads by example and encourages everyone to actively participate, listen attentively, pose questions … strive for consensus … encourage creative and challenging discussions and respond with respect and courtesy".[75] Mr Phillips said he took these recommendations "very seriously".[76]

43. Professor Hampton and Professor Klug both suggested that the early findings of the Deloitte review had been critical of Trevor Phillips and that the final report did not reflect these findings but "moved into another kind of discussion, which was process issues like the size [of the board]".[77] Mr Phillips disputed this:

44. The Deloitte report states that its suggested design criteria and recommendations were assessed and refined at a meeting in November involving "a subset of the Board, Senior Management Team and the Commissioner's Office".[79] We asked for the minutes of this meeting so we could better understand how the findings reported in the "emerging thinking" paper presented to the board in October had developed into the recommendations in the final report but were informed that no minutes exist.[80]

CONCLUSION

45. There were clearly tensions and difficulties between a significant minority of EHRC board members and the Chair during 2008 and 2009, culminating in the resignations last year. In his oral evidence, Mr Phillips gave the impression that the resignations had come as a surprise: he did not recognise their description of the board and instead described meetings in which robust debate and effective, friendly challenge of the chair were the norm. It is difficult to square these conflicting accounts but a close reading of the Deloitte report provides some support for the view that problems with the functioning of the Board stemmed from Mr Phillips' leadership style. Deloitte made specific recommendations about Mr Phillips's leadership which ended up in an appendix at the back report, without any published plan for implementation. Furthermore, Mr Phillips' suggestion that it was significant that the majority of commissioners did not resign is not in itself an answer to the criticisms made by those who resigned.

46. Ms Harman suggested that tensions were inevitable during the EHRC's formative years because of cultural clashes between the different equality strands. We do not doubt that merging organisations to create a new body with a controversial remit at the heart of political debate was a difficult task. Organisational problems and tensions were inevitable but we are not persuaded that the EHRC's implosion in 2009 was unavoidable.

47. When we asked Mr Phillips what, with hindsight, he would have done differently, he said:

Looking in from the outside, we concur with the view that it would have been desirable for Mr Phillips to devote more time to working with commissioners to help bring the best out of them. The EHRC would undoubtedly have benefited if the talents of those commissioners who resigned had been fully exploited.

48. We are not convinced, however, that the Commission's difficulties would have been significantly less if the launch date had been postponed, as Nicola Brewer suggested. In our view, merging three equality bodies and developing a strong corporate board for the new body, making use of the expertise and talents of all commissioners, are challenging tasks and we conclude that in the early years of the EHRC's existence this was not done successfully, for which the Chair must bear responsibility.

The new EHRC board

49. The appointment of EHRC commissioners is governed by Schedule 1 of the Equality Act 2006. No fewer than 10 and no more than 15 commissioners may by appointed and, in addition, the chief executive is a commissioner by virtue of his or her position.[82] The process for appointing commissioners is led by the Government Equalities Office and is based on open competition.[83] The appointment of eight new commissioners was formally announced on 19 November 2009.[84] In addition to Trevor Phillips (see below) three existing commissioners were reappointed and three more continued in post.[85]

50. The size of the board was an issue identified by the Deloitte review of the board's effectiveness, which reported in December 2008.[86] It recommended that the number of board members should be reduced to between 10 and 12, in order to help the board operate more cohesively and consensually.[87] The board accepted this recommendation, although not unanimously.[88] Mr Phillips mentioned the reduction in the size of the board in his Guardian article on 5 September 2009[89] but, in the event, the recommendation was not implemented. The Minister said that there were good arguments to retain a larger number of commissioners, suggesting that a larger number was necessary to ensure that commissioners were as broadly representative as possible.[90] The announcement of the membership of the new board explicitly commented on the relevant experience of each appointee, for example in relation to race, business, and human rights.[91]

51. In one respect, however, the Commission remains notably lacking in diversity. Eight Commissioners have links to the Labour Party,[92] one is an active Liberal Democrat,[93] but none has links with the Conservative Party. Trevor Phillips had previously told us that Commissioners were "too narrow both culturally and politically" and the Deloitte report concluded that board representation from across the political spectrum would be desirable.[94] Ms Harman acknowledged that a political balance was necessary in some organisations but "here there was a different brief, namely a commitment to equality … particular perspectives and experience were needed and these were the people who fitted that requirement".[95] Both the Minister and Mr Rees emphasised that none of those involved in the selection process were made aware of the party affiliations of candidates, although Mr Rees acknowledged that in some cases these would have been obvious.[96]

52. We have no strong view on the size of the EHRC board and can see the advantages of a larger board, if it can be led effectively. We are concerned, however, that the Minister has not taken action to broaden the political background of commissioners, in line with the Deloitte recommendation. The EHRC operates in a political environment, dealing with issues which are often the focus of national debate. Commissioners should include people affiliated to all of the main parties, as well as those without party affiliations. In our view, the Commission's credibility across the political spectrum would be enhanced if it included at least one commissioner with links to the Conservative Party.

Reappointment of Mr Phillips

53. Trevor Phillips was invited by Harriet Harman MP, the Minister for Equalities, to "consider making himself available to be reappointed to the post of Chair" in autumn 2008.[97] Mr Phillips received a "satisfactory appraisal" from Jonathan Rees, Director-General of the Government Equalities Office, in November 2008,[98] and Mr Phillips' reappointment was formally announced on 15 July 2009. Mr Rees described the reappointment procedure as "a perfectly normal process" which was laid out in the guidance of the Office of the Commissioner for Public Appointments.[99]

54. In an article in the Guardian on 5 September 2009 which responded to the EHRC's internal difficulties, Trevor Phillips noted that the EHRC board was in the process of being reconstituted and said: "all our non-execs have to compete with other talented people for reappointment by the minister for equalities." The chair and deputy chair of the EHRC were reappointed without there being an open competition. Ms Harman said "I thought that it was important that the chair and vice-chair should be reappointed for the sake of continuity", particularly in view of the departure during the year of the chief executive.[100]

55. Continuity of leadership, which was cited by the Minister as the reason for her decision to reappoint Mr Phillips without an open competition, is an important consideration but should have been outweighed by the need to demonstrate publicly that the EHRC was being led by the most talented people available.

56. Our predecessors argued that the EHRC's governance structure should model that of the National Audit Office and the Electoral Commission, to enhance the organisation's independence from Government. They recommended that the Chair of the Commission should be defined in statute as an officer of Parliament and that commissioners should be recommended for appointment by a statutory committee which would include parliamentary representatives.[101] We agree with their view. Independence from Government is an important aspect of the Paris Principles, to which national human rights institutions must adhere.[102] In our view, the reappointment of the Chair and Deputy Chair of the EHRC should on this occasion have been subject to open competition, to help restore confidence in the organisation and its leadership following the well-publicised difficulties the EHRC faced in 2009.

57. The Minister's decision simply to reappoint Mr Phillips without any parliamentary involvement could undermine the perceived independence of the Commission and put its accreditation as a national human rights institution at risk.

58. We were disappointed that Michael Wills MP, the Human Rights Minister at the Ministry of Justice, had not been involved in the reappointment of Mr Phillips or in the other appointments and reappointments to the EHRC board.[103] Mr Rees acknowledged that "we did not specifically consult him when it came to reappointment" but said that "all departments were consulted about [Mr Phillips'] performance … we knew the departmental and ministerial views".[104] In relation to all of the appointments and reappointments, Ms Harman said "a formal consultation process was not required or undertaken with other ministers, but in addition to having discussions with ministers in my department I had discussions with ministers outside the department as well".[105] Although our strong preference remains for the appointment of EHRC commissioners to be taken out of the hands of ministers, we regret that the Human Rights Minister was not more closely involved in the decision to reappoint the Chair on this occasion. If Ministers are to decide who should Chair the EHRC, the Human Rights Minister should be involved.

59. The post of EHRC chair was, at our request, added to the list of posts subject to a select committee pre-appointment hearing.[106] Such hearings do not take place in relation to reappointments[107] and, as a result, Parliament was not involved in Mr Phillips' reappointment nor given notification of the reappointment decision. We recommend that the appropriate select committees should be informed by the Government whenever the holder of a post subject to pre-appointment hearings is reappointed.

TERMS AND CONDITIONS

60. The EHRC helpfully provided us with Mr Phillips' letter of appointment in 2006, which set out his terms and conditions.[108] We understand that no such letter is available at the moment for Mr Phillips' reappointment, but Mr Rees said he had been reappointed for three years from 2009 and would continue to work for three and a half days per week for an annual salary of £112,000.[109]

61. Before October 2007, Mr Phillips worked full-time for the EHRC but since then he has worked for three and a half days per week.[110] We were sent correspondence between Government departments obtained under the Freedom of Information Act 2000 by a journalist, Mira Bar-Hillel, which suggested that Mr Phillips asked to work four days per week.[111] A civil servant in the Cabinet Office's Propriety and Ethics division wrote that it was:

112

Mr Phillips said that he had been asked by the Government to work four days per week,[113] but Mr Rees denied this.[114] Mr Phillips has subsequently explained that:

115

The position of chief executive

62. Nicola Brewer was appointed as chief executive in March 2007, having previously been a senior civil servant at the Foreign and Commonwealth Office. She announced her resignation on 20 March 2009 in order to take up the position of UK High Commissioner in South Africa, leaving her post in May 2009.

63. Some of the former EHRC commissioners suggested that there had been tensions between Dr Brewer and Mr Phillips. Sir Bert Massie, for example, said that "it was known that the Chairman and chief executive did not have the most cordial of relationships".[116] Kay Hampton said:

117

64. Clarifying roles and responsibilities was a central theme of the Deloitte review of the EHRC board.[118] The Corporate Governance Code of Practice and Conduct, agreed in May 2009, specifies eleven aspects of the role of Chair and ten aspects of the role of Chief Executive.[119] This new arrangement has yet to be put to the test, however, because the EHRC has operated without a chief executive since Dr Brewer's departure. Neil Kinghan has served as interim director-general on a temporary contract in her place. Initially appointed until the end of January 2010 we now understand that he is under contract until the end of September 2010.[120] Mr Kinghan is paid £1,000 per day and works four days per week.[121]

65. Mr Rees told us that the post of chief executive was advertised in summer 2009. No indication of salary was given at that time, but he thought that candidates would expect to earn a salary similar to that earned by Dr Brewer, around £185,000 per annum plus bonus. The recruitment competition reached a late stage, with three potential candidates identified, when it was suspended following the announcement in December's Pre-Budget Report that most public sector salaries over £150,000 would from now on require the approval of the Cabinet Secretary. A review of senior salaries, to be undertaken by Professor Bill Cockburn, was announced at the same time and is due to report at the time of the 2010 Budget. Ms Harman said that a decision on the salary to be offered to the chief executive of the EHRC would be taken in the light of the outcome of the Cockburn review.[122] Ms Harman said that "the likely scenario is that the commission will have a new chief executive at a considerably lower level of pay than the old chief executive, which is cognisant of the times and is the right approach to take".[123]

66. The recruitment of Dr Brewer's successor appears to have proceeded at a leisurely pace even before the Government's late intervention to query the salary expectations of candidates led to the competition being suspended, apparently until after the next Budget. There is every possibility that the post will have to be re-advertised and that the appointment of a new chief executive will be further delayed. It is unacceptable for a body of the size and significance of the EHRC to operate without a permanent chief executive for as long as eight months and with there seemingly being no prospect of an appointment being made until much later in 2010, especially given the costly interim arrangements.

Qualification of the EHRC's accounts

67. The Comptroller and Auditor General qualified the EHRC accounts for the period from 18 April 2006 to 31 March 2008, issuing a short report on the reasons for his decision.[124] He drew attention to the employment as contractors by the EHRC of seven staff who had received voluntary early severance and voluntary early retirement payments from the former CRE on the basis that they would not transfer to the new body. The engagement of these staff by the EHRC required Treasury permission, which was not forthcoming.

68. This issue was examined by the Committee of Public Accounts in oral evidence with Messrs Phillips, Rees and Kinghan on 2 December 2009. Trevor Phillips said:

125

69. In her memorandum to us, Nicola Brewer said:

126

She went on to state that the Treasury's refusal to agree to the re-engagement of the former CRE staff was "contrary to previous expectation",[127] a point subsequently disputed by Jonathan Rees who suggested that the difficulty lay in the rates of pay being offered to the re-engaged staff.[128] Dr Brewer also said that she realised in May 2007 that the EHRC would not be ready for a full launch in October 2007 and that she had discussed delaying the launch date with Trevor Phillips. She wrote that "it was concluded that 're-phasing' the programme - essentially, continuing to build up the EHRC after its 'soft' launch in October - was the better option".[129] Mr Phillips has since conceded that delaying the launch of the EHRC might have been preferable.[130]

70. The re-engagement of the former CRE staff was raised with us by the former commissioners, particularly in memoranda submitted by Professor Hampton.[131] She alleged that "at least 5 of the CRE staff concerned joined the transition team after Trevor took over as chair" and that we and the Committee of Public Accounts had been misled on this issue.[132] The thrust of her argument was that Mr Phillips had ensured that certain CRE staff to whom he was close had been moved to the transition team and then the EHRC without due process being followed and that this had led to the qualification of the organisation's accounts. She also made several other allegations relating to the management of the CRE and the setting up of the EHRC which, in her view, established "a pattern of autocratic leadership style, poor governance and questionable practices" on the part of Mr Phillips. In addition, as we have previously noted, Ben Summerskill announced his intention to resign as a commissioner because, as Chair of the EHRC's Audit and Risk Committee, he did not think the Commission was being led with probity.[133]

71. Professor Hampton's allegations have been responded to in detail by several of the people to whom they relate. We have published the memoranda with this report, subject to limited redaction where sensitive personal information is involved.[134] Mr Phillips said:

Staff were brought across in equal numbers from each of the legacy commissions to work in the transition team, on the basis of the needs of the (then) CEHR. Responsibility for transferring staff to the transition team lay with the sponsoring department [the Department for Communities and Local Government], not the EHRC. However, it is misleading to suggest that staff were brought into the transition team without due process; most posts were filled through open internal recruitment processes, a process which had not been in place prior to my appointment, but which I insisted upon from the start.

135

72. The precise circumstances in which the EHRC came to engage staff who had benefited from severance and early retirement payments from former commissions, on the basis that they would not work for the EHRC, without Treasury permission, are set out in the National Audit Office report and are currently the subject of an inquiry by the Committee of Public Accounts. We await the report of our sister committee with interest. At the very least, this episode has demonstrated that appropriate procedures for controlling expenditure were not in place in 2007 and we note that Mr Rees told us that improvements have now been made.[136]

The Equate consultancy

73. A further concern was that some of the former CRE staff re-engaged by the EHRC were involved with Dignity Management Consultants, an external consultancy with links to Equate, a consultancy firm with which Mr Phillips was connected.[137] Mr Phillips explained that he had set up Equate when he had become Chair of the EHRC but that it had done only one piece of work and he had stood down as a director on 1 October 2008 and "subsequently reduced my interest in it to something which I think is negligible actually".[138] Dignity was one of several individuals and firms to which Equate would sometimes refer work.[139] Mr Phillips said he had received advice from Dr Brewer, the EHRC's lawyers and his own lawyers about the potential conflict of interest between chairing the EHRC and his involvement with Equate and that his decision to reduce his interest in Equate "was the effect of my own consideration".[140]

74. We also asked Mr Phillips about references on his website to the Equate consultancy. He said

141

75. Dr Brewer told us that "on several occasions over the second half of 2008, my advice to the Chair was to stand down from the company; periodically after that we continued to discuss implementation of his decision as it affected the Equate website".[142] Mr Rees said that the "issue of Trevor's consultancy work with Equate" arose in June 2008 and:

143

76. We welcome the fact that Mr Phillips has now relinquished his controlling share in the Equate consultancy. It would appear, however, that it took some time before Mr Phillips was persuaded to take the action necessary to address the perception of a conflict of interest caused by his involvement with Equate. We regret that he did not terminate his involvement with Equate when the issue was first raised by Dr Brewer.

77. We note that Mr Phillips' website (www.trevorphillips.eu) begins by stating that "Trevor Phillips is the co-founder of the Equate Organisation, the social change consultancy" and includes a link to the Equate website, which is currently closed for reconstruction. We again suggest to Mr Phillips that his personal website should be amended to remove references to the Equate consultancy.

Departmental responsibility

78. Departmental responsibility for the EHRC rests with the Government Equalities Office, a free-standing ministerial department currently headed by Harriet Harman MP, which was set up in 2007. Prior to that, during the establishment of the EHRC, ministerial responsibility rested at different times with several departments, including the Department for Communities and Local Government. Trevor Phillips told us in 2008 that there had been four different sponsor units for the EHRC, but "we are okay where we are right now".[144] He went on to suggest that it would be more helpful if the Government included a Minister for Equality and Human Rights, rather than the current situation in which ministerial responsibility is split between the GEO and the Ministry of Justice.[145]

79. Ms Harman said the EHRC had been "itinerant" but "we have a strong and self-confident Government Equalities Office which puts a very high priority on liaising with the [EHRC]". Although the GEO was small, it did "not … lack reach across Whitehall".[146] Mr Rees emphasised the extent to which the GEO worked closely with other relevant departments, including the Ministry of Justice.[147]

80. In our view, equality is a human right and the division between Government departments in responsibility for equality and human rights matters is illogical. We have already noted an example of a key decision affecting human rights policy-making in the UK - the reappointment of Mr Phillips - being made without the involvement of the Human Rights Minister. Although the EHRC's sponsoring department is one of the smallest, it has a wide reach across Whitehall. Impact and reach are essential for the sponsoring department. There are other potential candidate departments to sponsor EHRC: Communities and Local Government which has responsibility for race equality and community cohesion is one; Work and Pensions, responsible for disability and older people, is another; Justice, responsible for human rights, has a strong claim. However in the first two of these departments, equality and human rights risk being second order issues. The last poses the risk that human rights are seen as the preserve of the law and restricted to legal argument. The Government Equalities Office is at present best placed to ensure that a human rights culture is embedded throughout government and all public bodies and a Minister for Equality and Human Rights should be located there.

81. However, we recognise the claims of other departments and recommend that deciding which department has responsibility for the EHRC should be a first order issue when machinery of government changes are contemplated. It is not acceptable for human rights to be an afterthought, as it sometimes appears to have been in the past. We believe that the Minister for Human Rights and the sponsoring department for the EHRC should be situated in the same place.

49 Professor Klug is a specialist adviser to the Committee but has not undertaken any work for us since 2005-06. Back

50 Q1. And see paragraph 70. Back

51 Also see Qq 15-17, 98-106 and Ev 64. Back

52 Ev 69. Back

53 Guardian, 27 March 2009. Back

54 Q1. Back

55 Also see Ev 87. Back

56 Q1. Back

57 Q19. Also see Ev 70. Back

58 Q1. Back

59 Ev 85 and Ev 94, paragraph 3.13. Back

60 Q60. Back