UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 183-i

HOUSE OF LORDS

House of COMMONS

MINUTES OF EVIDENCE

TAKEN BEFORE

JOINT COMMITTEE ON HUMAN RIGHTS

 

 

WORK OF THE EQUALITY AND HUMAN RIGHTS COMMISSION

 

 

Tuesday 15 DECEMBER 2009

RT HON HARRIET HARMAN QC MP and MR JONATHAN REES

Evidence heard in Public Questions 207 - 284

 

 

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Oral Evidence

Taken before the Joint Committee on Human Rights

on Tuesday 15 December 2009

Members present:

Mr Andrew Dismore, in the Chair

 

Dubs L

Falkner of Margravine B

Lester of Herne Hill L

Morris of Handsworth L

Onslow E

 

Dr Evan Harris

Fiona Mactaggart

Mr Virendra Sharma

________________

Witnesses: Rt Hon Harriet Harman QC MP, Leader of the House of Commons, Lord Privy Seal and Minister for Equality and Women, and Mr Jonathan Rees, Director-General, Government Equalities Office, gave evidence.

Q207 Chairman: Welcome to another of the evidence sessions of the Joint Select committee on Human Rights which is looking at the work and governance of the Equality and Human Rights Commission. We are joined this afternoon by Ms Harriet Harman QC, Leader of the House of Commons, Lord Privy Seal and Minister for Equality and Women, and by Mr Jonathan Rees, Director-General of the Government Equalities Office. Ms Harman, do you want to make any opening remarks?

Ms Harman: No.

Q208 Chairman: Perhaps I may start by raising with you the dissatisfaction that quite a few of the commissioners have expressed about the leadership and governance of the EHRC in our evidence sessions with them. Were you aware of this dissatisfaction?

Ms Harman: Yes.

Q209 Chairman: What do you do about it?

Ms Harman: I believe we are now able to go forward positively on this important agenda with the reappointment of the chair, vice-chair and some of the existing commissioners which arose out of the bringing together of different strands, requiring greater visibility and engagement with stakeholders and greater clarity about the future work programme of the commission. I have been aware of the issues raised but I think the important matter is that it is now on a firm footing going forward. I am confident that is the case.

Q210 Chairman: Did you see these problems as a clash of personalities with a strong chair, or is there more to it?

Ms Harman: There were some issues around the way the equality commission was set up. It is right that employers should not have to deal with five different commissions for each different strand and an overarching human rights strand. It is right that we should not have five HQs, IT directors, HR directors and legal departments. I believe that to bring it together was the right thing. When one does that there are always difficulties with a new model that incorporates different organisations, but there is particular sensitivity in relation to the quest for equality and it was important to have greater visibility of each of the strands without making it a disaggregated organisation. I believe that balance has been struck. When one brings together disparate organisations it is difficult t work out how best to make the situation work together. Seeing Lord Morris here reminds me of trade union mergers. There are always different cultures in different organisations. When they are brought together there is difficulty and the process takes time. It does not make the objective wrong but it means it takes a while to sort things out.

Q211 Chairman: I do not believe any of us would seriously question the decision to merge the various disparate bodies that existed before. It was right to do it. The real issue is whether we have the right person to chair it and the right governance mechanisms behind it. Evidence we have received from a variety of commissioners, not just from the four who came here to give direct evidence but also correspondence, and others including NGOs say broadly the same thing: Trevor has many talents but he is not suited to leading such a large, complex organisation and as a result the EHRC is not as functional as it should be in doing its job. How do you explain the fact that many people from different walks of life and backgrounds, who are important in their own right and have led their own organisations of some size, all come to the same conclusions?

Ms Harman: It is a large, complex organisation and it will always be challenging. I would be surprised if there was ever a time when the leadership of the Equality and Human Rights Commission was not controversial. By its nature it is a controversial position, but I am confident about Trevor doing the job. I was certain about my reappointment of him and feel confident about that. The nature of equality organisations is unlike that of the Army for example. They look to find space and voice and to make change and therefore each organisation within the voluntary sector has the same kind of issues. Those issues are present within the different commissions. It does not mean one should not try to be united in finding a way forward, but there is a certain amount of inevitability about it as well as a need to address a number of issues, recognising that a person who is disabled and fiercely concerned about equality for disabled people might well not have a similar passionate depth of feelings about race equality. One is bringing together strands which intellectually have the same conceptual background but it is not necessarily the same for the individuals who experience it. The problems are not caused by the same things and the solutions are not the same. When one brings them together it is a difficult job, but I have confidence in Trevor continuing to do it.

Q212 Chairman: One heard from half a dozen people from different backgrounds and different aspects of the equality agenda. One of the key tasks was to meld them into a group on the board that could work in a cross-cutting way. The criticism seems to be that far from achieving that we have ended up with groups becoming ever more disparate and feeling left out of the "cliquey" way in which it is operating. Surely, the job of the chair is to pull it all together, not push things apart as the evidence we have suggests?

Ms Harman: I do not accept that was what Trevor did. I am aware of the situation that arose. There were a number of complex reasons for it which do not necessarily fall within the responsibility of any one individual. The important point now is to feel confidence in the chair, deputy chair and the new board and focus on the policy agenda. The Equality Bill is coming through and there is the important issue of how the "disability" duty is put into effect by public authorities. I think it is important for the equality movement and commission, which does not own the whole agenda - it is just an important part of the wide equality movement - to look outward to the challenges and battles to be faced and won and the problems that need to be solved and focus on the task that makes a difference to people's lives and to try to move beyond an inward-looking organisation. We have evidence about financial services and gender pay equality; we have the work they did in the case of the BNP, taking them to court and making them change their constitution; and we have their work in bringing forward disability. They will now be dealing with the failure of local authorities to provide support for women and victims of sexual offences. That agenda will make a difference to people's lives. I am confident that all of them are focused and getting on with it. One must address internal organisational issues and if necessary make changes, but at the end of the day the organisation is about people out there, not those on the board or the people leading it or working for it. They are all part of a big cause.

Q213 Chairman: Turning to Trevor's reappointment, the board minutes of the EHRC of 18 September record that you met Trevor in the autumn of 2008 and "invited him to consider making himself available to be reappointed to the post of chair." Is that correct?

Ms Harman: I certainly approached the position on the basis that were he to be appraised as eligible for reappointment I would expect to consider that as the first option. The answer is probably yes, but I would have to look up the dates and everything.

Q214 Chairman: Why did you do that instead of going through the formal process?

Ms Harman: I think that a formal process of appraisal to determine whether or not somebody is eligible for reappointment is undertaken by the Cabinet Office. If the person is eligible for reappointment the decision for the minister is whether the individual will be reappointed or not reappointed and go to a different mode. Obviously, I would want to know whether Trevor wanted to be reappointed because it would colour what we did. Therefore, to ask him whether he wanted to be reappointed was a perfectly reasonable question, but I did not fetter my own discretion; I did not write to say that it was a deal but basically indicated the direction in which I was leaning. Obviously, there are proper processes to be followed, critically the appraisal. I cannot remember what stage the appraisal had reached by that stage or whether or not by then it had been done.

Q215 Chairman: My understanding it had not been done by then and it was Mr Rees who was doing it.

Ms Harman: It would have been subject to that. There was no way I would have been on a different track from the normal processes. It is the responsibility of officials to advise me on what I can and cannot do within the processes and it is my responsibility to stay within them.

Q216 Chairman: If the appraisal had come to the conclusion that Mr Phillips was not suitable for reappointment you would not have reappointed him?

Ms Harman: No. If somebody is not suitable I do not think you can. I suppose he could have reapplied.

Mr Rees: He could have reapplied. What you are discussing is a perfectly normal process. About a year out from Trevor's appointment coming to an end the minister had a discussion as to whether or not he was interested in seeking a second term. We then had an appraisal discussion, which took place in November 2008. If that appraisal had been unsatisfactory it would have meant he could not be reappointed. That appraisal was satisfactory. That meant he was eligible for the minister to decide to reappoint him. As the minister has just said, that does not mean it is an automatic process; that is when the discussion takes place. All of that is laid out in the OPRA guidance which was recently republished in August 2009.

Q217 Chairman: Were you aware of some of the undercurrents within the board when the appraisal was done?

Mr Rees: Yes.

Q218 Lord Morris of Handsworth: Minister, we recently heard evidence from Michael Wills, Human Rights Minister. He told us that the EHRC was not doing enough to promote human rights and the Human Rights Act. Do you agree with that?

Ms Harman: I think we could all be doing more on human rights and the Act. I include in that the government, civil service, all public authorities and the commission. However, I make two points: first, the Equality and Human Rights Commission is only a few years old and is relatively new; second, the Human Rights Act has been in force since 1998.

Q219 Chairman: It was passed in 1998 and came into force in 2000.

Ms Harman: Although before that the European convention was justiciable in the European courts it was still quite a recent phenomenon in our domestic law. I am sure Lord Lester will remind me that it has very deep roots in the past, but I believe that it is still finding its way forward. It is very important. Should any of us say that everybody is doing enough? No. Our default position should be that we are not doing enough to explain it, ensure it is implemented by everybody and taken into account, is made mainstream and more popular than it currently is and is not surrounded by mythology and misunderstanding. All of that is very important. We all have a part to play in that.

Q220 Lord Morris of Handsworth: Assuming what you say is correct and we should all be doing more, what specifically should the commission be doing to promote the Human Rights Act?

Ms Harman: Perhaps I should have said that the only people who could not possibly be doing more by definition is this Committee. But it is not for me to tell the commission what it should be doing in future; it is an independent organisation and is not a department which delivers a ministerial agenda.

Q221 Lord Morris of Handsworth: I accept that, but you have just told us we could all be doing more. You mentioned the commission in particular. You must have a view about precisely what more it should be doing. If you can tell us please do so.

Ms Harman: I did not arrive at that position and then think about the commission in particular. I thought that was the position in general. I do not say it about the commission in particular; I say it about everybody. But that does not mean I have necessarily mapped out what everybody should be doing. I just feel that, generally speaking, more could be done, and I am sure it will be in future. In a way it is both harder and easier in relation to human rights than for an individual strand within the commission, for example race or gender. It is more complex, overarching and harder for people to come to grips with, but I am sure that the commission will be taking it forward.

Q222 Lord Lester of Herne Hill: I believe it was the Equality Act 2006 which set up the commission's structure and the human rights bit of it. After it was set up the Ministry of Justice refused to take departmental responsibility for the commission. Instead, we have Mr Rees's office. Was it not a problem from the beginning that no mainstream government department was willing to give parentage to what became a kind of orphan in Whitehall and, looking back on it, there was a problem about the way the machinery of government operated after the Equality Act became law?

Ms Harman: I think it had been itinerant and moved from place to place, always with the idea of finding a better place for it. There were always good reasons for moving it but each time you do that there are problems about it being in a new place. But we have a strong and self-confident Government Equalities Office which puts a very high priority on liaising with the Equality and Human Rights Commission. There is a strong ministerial team working together with the Government Equalities Office and commission. With hindsight there might or might not have been different ways to do things, but in a way that is not my focus which is: have we got it right now? Are we all committed? Do we believe in what we are doing? Are we excited about the prospects of the future direction? Are we ready to get into battle on important issues that will improve people's lives? In the past when I was not in the Cabinet issues of machinery of government were not my speciality. I do not know whether my colleague wants to add something.

Mr Rees: I am not sure I accept the premise of Lord Lester's question. The Ministry of Justice takes a close interest in the workings of the EHRC. It so happens that it is the Government Equalities Office that sponsors it. Ministers work very closely with the Ministry of Justice on sponsorship. Maria Eagle talks regularly to Michael Wills about these issues. As to where one leaves responsibility - this is the point about machinery of government - the key is that the different departments work effectively and closely together. For instance, I work closely with officials in the Ministry of Justice as the human rights champion; in turn they work closely with my department on the group we have set up to help oversee the work of the EHRC. Therefore, I am not sure I accept the premise that EHRC or the human rights responsibilities in government are an orphan.

Q223 Lord Lester of Herne Hill: To explain the premise, I was an independent unpaid adviser to the Ministry of Justice at the time and tried unsuccessfully to deal with the problem. The premise is that the permanent secretaries and government as a whole were unwilling to take major departmental responsibility at the time. Had they done so a lot of the subsequent problems might have been dealt with; instead, we have a rather curious and unique situation at the moment.

Ms Harman: At the moment?

Q224 Lord Lester of Herne Hill: This Committee raised all of this at the time. Trevor Phillips did not want a major government department to be in charge. I raised it within the MoJ and the permanent secretary said they did not want to take responsibility for it; they had enough problems. The trouble is that subsequently he did not have a major government department taking responsibility for it as with the equality agencies previously.

Ms Harman: There is not a major government department taking responsibility for it now.

Q225 Lord Lester of Herne Hill: Exactly.

Ms Harman: The Government Equalities Office is a small department but I do not think we lack reach across Whitehall. Even if Whitehall does not want to be reached by us we definitely work across all the different departments and I believe make a difference. It may be that some other organisational structure could also make a difference. I believe that it feels self-confident and purposeful.

Q226 Lord Morris of Handsworth: You have told us about the process of reappointing Mr Phillips as chair of the commission including the appraisal. Why did you not ask the Human Rights Minister what he thought about Mr Phillips' performance?

Ms Harman: I had discussions with a number of ministers over a period of time and was well aware of the different views but also was fully cognisant of the need for me to shoulder the responsibility for what was my decision.

Mr Rees: To be clear, all departments were consulted about performance. As I said in answer to Lord Lester, we have an inter-ministerial and inter-departmental group which look at overall performance. I do not believe we were in any doubt about the views of either individual ministers or departments. As Michael Wills said to you in evidence, we did not specifically consult him when it came to reappointment. We knew the departmental and ministerial views, so there was no need for that to be done; indeed, the legislation does not require it. The legislation requires it in the case of Wales and Scotland and in both cases that was what we did.

Q227 Lord Morris of Handsworth: Can we look at the process of appointment of members? We would like you to explain why the minister responsible for human rights across government had no role whatsoever in the appointment of members of the EHRC.

Ms Harman: I think it is because ultimately I had responsibility for it. But that is not to say we did not have discussions. 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. There is a great range of things to be taken into account and ultimately one must make a judgment.

Q228 Lord Morris of Handsworth: To what extent did you assess the EHRC's performance as a human rights institution when deciding to reappoint Mr Phillips?

Ms Harman: How did I assess it?

Q229 Lord Morris of Handsworth: To what extent did you assess the commission's performance as a human rights institution when you were deciding to appoint Mr Phillips?

Ms Harman: My approach was to think of all the things that depend on the commission taking them forward and whether or not Trevor had the right qualities to lead a very big and important organisation. I therefore did not disaggregate it in that way, but obviously I am very well aware of the importance of the human rights concept overarching the whole organisation as its name implies. I did not do a disaggregated tick chart.

Q230 Lord Morris of Handsworth: Obviously, we have noted that other commissioners recently appointed had to reapply for their positions and face competition from other candidates. Can you say why the chair was not subject to the same principles of open competition?

Ms Harman: Bearing in mind where we are with the importance of the Equality and Human Rights Commission, particularly at a time when the Equality Bill is going through Parliament, not to have continuity of leadership with the loss of the chair when the chief executive had left was a factor in my mind. But I do not think that meant we could not look for a fresh approach on the board. I thought it was important that the chair and vice-chair should be reappointed for the sake of continuity. I think that the considerations which apply to the chair and vice-chair are different from those that apply to the rest of the board.

Q231 Baroness Falkner of Margravine: In light of what you have just said it appears you were both aware of the problems well articulated in the media over a period of time. One would have thought that with something as important as the Equality Bill going forward you would have indicated a desire to put the commission on a stronger footing by having a clean sweep. Instead of doing that in the view of many observers and interested parties in effect you have created a situation where it is evident you have decided not to deal with the inherent problems that have come to light but to continue as before. That seems odd in light of what you have said about the importance of the Equalities Bill and projecting to the public a different approach.

Ms Harman: If you look at the chair, deputy chair and all the people we now have on the commission I am confident that they will go from strength to strength. Obviously, you take a more pessimistic view about it and believe I have made the wrong decision, but that is not my view. I look at the commission. I know the people who have been appointed. I can see the work programme that is very important and I shall give the leadership of the commission and the board my full support. I believe there is a clear agenda to be taken forward. I will not always agree with Trevor and what the board does, but I am confident that they will be carrying out the very important task that is needed.

Q232 Lord Morris of Handsworth: All of us have had the benefit of hindsight. We see an institution that, quite frankly, is somewhat damaged. With that hindsight do you not think it would have been preferable for the chair to be appointed through the mechanism of open competition?

Ms Harman: No. We all know that the merged organisation has had a difficult start. There are a number of reasons for that, but I have confidence in Trevor. I have reappointed him. I believe that the organisation will go from strength to strength. To acknowledge that it had a difficult start does not necessarily mean one makes it better by not reappointing the chair. That might be the view of some people but it was not mine.

Q233 Lord Morris of Handsworth: Do you not think the commission has been damaged as a result of recent events and the exodus of a number of good people?

Ms Harman: The commission has had a difficult start, but one thing that makes me more confident about the future is the work that is already under way and the important role the organisation will play in drawing up guidance on the equality commission and the vexed process of trying to get business and trade unions to work out together how to measure employer by employer the gender pay gap. I am confident that that it has the board and leadership to take those things forward. There comes a point at which it is important, acknowledging the difficult start, to make an assessment of whether or not the organisation is on track. There is now no reason why it should not be completely on track with the new board coming on stream. I feel confident about it. I believe that in two years' time we will see whether or not that is the case, but I feel confident about it. I will help to make it happen to the extent that does not interfere with its independence.

Q234 Mr Sharma: Can you confirm the terms of Mr Phillips' reappointment? For how long has he been reappointed? Can he be reappointed again? How many days per week does he work? What is he being paid?

Ms Harman: I shall ask my colleague to respond with those details. I have a great deal of confidence in Trevor. It was not just a default option. I have seen his work over a number of decades, as anybody who knows and cares about equality will also have done. I have a good deal of confidence in Trevor; he has my total backing. My colleague will deal with the terms and conditions that are obviously important to the Committee. I do not want the Committee to be in any doubt that I am confident about the decision I have taken.

Mr Rees: He was appointed for three years from September 2009. Can he be reappointed again? The answer is: no. Under OPRA rules one is allowed two appointments. He could reapply in open competition but he could not be reappointed again. How many days a week does he work? For the first year until the commission went live he worked full time, and ever since October 2007 he has been working three-and-a-half days a week. If you read the transcript of the last session there was some confusion about whether it was three-and-a-half or four days. I think he replied to somebody who asked whether he worked four days without picking up that he worked three-and-a-half days. Finally, he is paid pro rata £112,000 a year based on a salary of £160,000 for a five-day week. If my mathematics are right, that is the result of dividing 160 by seven over 10.

Q235 Mr Sharma: There have been exchanges between the Cabinet Office and other officials querying why Trevor Phillips should work for four days per week as a non-executive chair of the EHRC. Can you explain why this is necessary? Mr Phillips said that the government asked him to work for four days per week. Can you confirm that?

Mr Rees: Let me start by saying that the term "non-executive chair" often bandied around does not apply in the public sector; it is not a term we recognise. Trevor is the chair of the organisation. There is at the moment an interim director-general. I have had discussions with Trevor about what the right time commitment is. The conclusion was that we would stay at three-and-a-half days a week. We did ask the Cabinet Office - I believe it has been released under freedom of information - about the practice among other chairs and chief executives. You will find that there is a variety of practice across Whitehall. I have been in an NDPB; I have sponsored lots of NDPBs. A commitment of three or three-and-a-half days a week is not unusual for chairs of bodies as new as this with this range of responsibilities. It is perfectly fair to say that with a body in steady state - I think the evidence you have received from two sessions so far is that it is not quite in steady state - you might expect to see the chair reducing the time commitment. We had that discussion and we do not think this is the right time to do it.

Q236 Chairman: Did you ask him to work four days?

Mr Rees: No.

Q237 Chairman: So, when Mr Phillips says that the government asked him to work four days that is not right?

Mr Rees: We had a discussion in which we considered whether or not it would make sense for him to work four or five days. That was in the context of the chief executive having resigned rather suddenly for an excellent new job. We did not ask him to work four days a week.

Q238 Mr Sharma: Do you share the concerns of the Cabinet Office that when a non-executive chairman works four days a week there is an increased likelihood of conflict with senior management? How do you intend to monitor this?

Mr Rees: I think there is difficulty in every new organisation working out the respective roles of the chairman and chief executive. That was one of the things I discussed with both the chair and chief executive when she was there. I am aware that there were tensions and clearly one of the issues going forward was to make sure the new commission team, both the board and executive, worked effectively together.

Q239 Baroness Falkner of Margravine: I should like to move to the Deloittes report. You will be aware that the report makes strong criticisms about the way the board operated and was chaired; there was confusion between the executive and non-executive roles; there was lack of team spirit and a collegiate ethos in decision-making. In your experience was this typical? You have referred to your extensive experience in non-departmental public bodies and other boards. Was it typical of boards or something that you took very seriously when you were appraising Mr Phillips and thinking ahead, or were they just teething problems that you were confident would be overcome?

Mr Rees: The Deloittes report was commissioned by the EHRC itself. Obviously, we spoke to the consultants who conducted that report. I also spoke to the chair, deputy chair and chief executive after the report. We took the view that it was sensible for the commission to review how it was working as a board. There is a range of recommendations in the Deloittes review which are for the commission to take forward. A number of them are really practical issues which I have seen before. For example, the quality of the papers that go to the commission is not good enough. As someone who must be able to read all those papers I have to say that is correct and it has improved. We were particularly concerned about the quality of the financial information going to the commission's board, and that has improved significantly over the past six months. The answer is that it was right for the commission to do that review and I think it has acted on many of the recommendations in the Deloittes report.

Q240 Baroness Falkner of Margravine: Some of the bigger issues - I shall highlight them for you - were significant and serious: a lack of clarity in how relationships should work between board, senior management team and staff; and lack of planning and preparation for board meetings. That is a serious governance issue. There are several others but we have limited time today and cannot go into all of them. I take you back to my earlier question. You say that the EHRC itself commissioned Deloittes to come in and have a look at it. The implication of what you are saying is that it was therefore aware of the need to act, but the EHRC commissioned Deloittes to come in only after disagreements internally that we are aware of as to whether or not it wanted an external reviewer or it should hammer out some of the issues internally. Do you believe that dysfunctionalism at this level is something to be left to the ancien régime just to muddle on with?

Mr Rees: The starting point is that obviously as the sponsoring department we were well aware there were issues about how well the board was operating. Obviously, it was my job to speak to individual commissioners and therefore I was aware there were tensions. I believe the question you ask is: was this unique? The answer is no. I have seen lots of other organisations where one has the same sort of teething issues. The question for the commission, which we welcome, is whether it addressed it seriously. What I have tried to say is that a year on from the Deloittes report there is clear evidence of significant improvement in the way the board operates. We have a new team that has not had its first board meeting; it is to meet on Thursday. One of the reasons we appointed the new team - in no way is it a reflection on some of the old team - is that these are people with huge experience of governance. We believe that the progress made in the past year will be built on. As the minister said, we believe that looking forward there is a much stronger base on which to build.

Q241 Baroness Falkner of Margravine: Minister, you will be familiar with the recommendations of Deloittes one of which was that the board was too large and should be reduced to around 10 to 12 members. You have reduced the number of appointed commissioners from 15 to 14. Why did you decide not to follow the line recommended by the report and go for a significantly smaller board that perhaps could have been more cohesive?

Ms Harman: Obviously, there are arguments for having a smaller, cohesive board but there are also arguments for a board of the size we have. If you look at all the individuals appointed to the board you will see why we came out where we did. We have on the board people with a range of abilities and fields of expertise. I believe all of them are necessary. As to the issue about having greater focus on governance, a number of the new commissioners bring that with them. That was in mind when the selection process for the commissioners was undertaken. Therefore, we hope that by the appointment of these people we have contributed to addressing the problems touched on in the Deloittes report and elsewhere. But this is not a science. If you look at the people on the board you will see that they come from Scotland, Wales and England; we have LGBT; we have trade union and business experience; we have people whose experience has come from organisations concerned with gender and race. We have a good range on the board. I do not think the fact we have 15 rather than 11 or 12 is a show-stopper. I would not like to work out which one of these I would not have. I do not know whether if you look at the list you can suggest to me which one we can manage without. I believe they will all contribute and work together as a team. The equalities and human rights project is a contested one; it is trying to find a way forward. There are lots of people who detract from it because they do not want to see it succeed. I and my team of civil servants and ministers want it to succeed and everything we do is not because we cannot be bothered; we are focused on trying to make the right decisions so it can succeed. There is sometimes a difference of view, but that is what we try to enable it to do but unfortunately others still try to hatchet it down.

Q242 Baroness Falkner of Margravine: You have challenged me to try to identify which one of those we would rather not have.

Ms Harman: I had better withdraw that challenge because it is invidious for any of the persons you might pick on.

Q243 Baroness Falkner of Margravine: I am extremely relieved. Rightly, as the responsible minister you place a great deal of store on each individual contributing to the success of the collective. I also share your view that some of these issues meet resistance and the overall agenda is one that is contested. There is not much between us in that regard. But I have a sense of unease with that kind of emphasis on different people for the reason that when you look closely at the membership of the commission you find eight people with links to the Labour Party, one Liberal Democrat and no member with any apparent links that we know of to the Conservative Party. What this means to someone like me, perhaps wearing a veil of ignorance, leaving aside any partisanship that I might have, is that only those of the same ideological creed, or "only people like us", can push forward this agenda. When one has a highly partisan commission of one particular inclination it gives the impression that the work of that body and its objectives are capable of delivery by only one political creed. Michael Wills told us last week that the broader the political base of independent bodies like the EHRC the better.

Ms Harman: Sometimes when putting together a body to take forward a particular function one has to pay regard to political balance. For example, on the Electoral Commission there is representation of the different political parties; on the BAME task force we have women councillors from each of the three main political parties and also from Respect and the greens. We had to achieve a political balance. Here there was a different brief, namely a commitment to equality. The process is an arm's length one. I did not see the people who replied, though I am told about 650 did so, and I did not see who got onto the long list; I did not see who got onto the short list. I do not know whether your figures are right; I am not in a position to confirm or deny them, but if that is the way it has turned out there should not be any inference in the way you have drawn it. Particular perspectives and experience were needed and these were the people who fitted that requirement.

Mr Rees: Under paragraph 5.50 of the OPRA rules which I have here it states very clearly: "Monitoring forms including the political activity questionnaire must form no part of the selection process and must not therefore be made available to sift or selection panels or any other person involved in the appointments process." It is true that the board of the commission that has emerged has on it a number of people who have actively supported the Labour Party and one is a Lib Dem councillor, but neither ministers nor officials involved in the process knows people's party allegiances. The commission is, in the words of Michael Wills, party-political blind.

Q244 Dr Harris: It must be hard for even the most non-party-political appointments committee member not to realise that he might have an allegiance to the party whose whip he takes. That cannot be right, can it?

Mr Rees: That is a fair point. In the case of some people their political allegiance will be clear from their CVs. We did not interview either Margaret or Trevor for reasons you know. For lots of people it is not clear what their party political allegiance is. From your own party Meral Hussein, one of the new commissioners, clearly said that she was a Liberal Democrat councillor so that was evident to the people on the panel.

Q245 Dr Harris: I did not want to allow you to give the impression that because the monitoring forms were not there people were unaware of political allegiance. I want to ask about the issue of conflict of interest. Minister, were you concerned that Mr Phillips' involvement with the Equate consultancy conflicted with his position as chairman of the EHRC at any point?

Ms Harman: I know there were issues around that. There were discussions between Trevor and the Cabinet Office and a resolution was reached. I imagine that that is not unusual. I was concerned that it should be resolved in a satisfactory way. These things needed to be resolved and they were.

Q246 Dr Harris: But you yourself were concerned that there was a conflict of interest, or a perceived conflict, and it was damaging?

Ms Harman: Once there was a perception of conflict of interest I was concerned that it should be resolved and the processes would be gone through to resolve it. Those were the processes that took place.

Q247 Dr Harris: You do not seem to be that concerned.

Ms Harman: Because they are resolved. I have other things to make me lie awake at night.

Q248 Dr Harris: But what you have is a dysfunctional commission and a legacy of unhappiness. You may think that everything in the past is resolved, but if it has ongoing ramifications I do not think you can say it does not matter. For example, the chief executive of the commission, Nicola Brewer, who is now a high commissioner - a diplomat worthy of that appointment - has said that on several occasions during the second half of 2008 her advice to the chair was he should stand down from the company. Are you concerned that the chair did not take advice, not given gratuitously - she had no axe to grind - from an apparently independent chief executive on several occasions that he should stand down from that consultancy?

Ms Harman: I believe he took advice of the Cabinet Office as to what was necessary to resolve the issue.

Q249 Dr Harris: Are you saying that you believe the chief executive got it wrong? Is that why she left?

Ms Harman: I do not know whether what she said was the same as the Cabinet Office response. Possibly they both said the same thing, in which case it was resolved.

Q250 Dr Harris: Should you not know? Should you not be concerned that the Cabinet Office is apparently saying it is fine and he should carry on performing this role, which some people say amount to a conflict of interest and clearly gives that perception to the chief executive and the five commissioners who resigned? It was not just a Daily Mail thing. The chief executive and five commissioners said this was a perceived or actual conflict of interest and you appear unconcerned that there was a conflict of advice on the subject.

Ms Harman: I did not say I was unconcerned. I was concerned that it was resolved and it has been and some changes were made. I do not believe that it was just a matter of taking advice that nothing needed to be done. There are clear pathways to be followed here and they were followed.

Mr Rees: I am not sure I recognise your account. The issue of Trevor's consultancy work with Equate arose in June 2008. At that stage I wrote both to the chief executive and chair of the commission's audit and risk committee, Mr Summerskill, to ensure that their processes were in hand. I also discussed it with the chief executive. As the minister said, we all agreed that the best way forward in this case was to refer it to the Cabinet Office and the director of propriety and ethics. She had a discussion with Mr Phillips and the conclusion was that in this case the best way forward was for Mr Phillips to step down from his controlling share in Equate. That has happened. Equate has done no more work in the past 14 or 16 months, so in that sense the issue is resolved. It is the case that the chief executive, Cabinet Office and ourselves all took the view that in this case that was the right way forward. I do not believe there was any difference between any of the people advising on this issue.

Q251 Dr Harris: Is it right that you appraise Trevor Phillips?

Mr Rees: I give him an annual appraisal in line with Cabinet Office guidelines.

Q252 Dr Harris: Are you on first name terms with all the people you appraise or is it just a special case for him?

Mr Rees: I am on first name terms with all the people I appraise; that is the way most organisations now work.

Q253 Dr Harris: You do not believe that civil service detachment from people in respect of whom one has oversight is wise?

Mr Rees: I think it would be extremely odd if I did not address by first name those people I see on a daily basis.

Ms Harman: Even if you call somebody by their first name it does not mean you do not have a very keen appreciation of your role. Although I contribute to Mr Rees's appraisal I can see that he has a completely clear view about his role in relation to the Equality and Human Rights Commission, so the fact he calls him "Trevor" does not imply that somehow it is unprofessional.

Q254 Dr Harris: I move on to your role. In an earlier question it was put that you had chosen to reappoint him in the knowledge that a number of commissioners had serious concerns, that there was a fuss, if I may call it that, about his conflict of interest, and until the PAC report there was a cloud still hanging over the issue of the reappointment of people who had taken redundancy. Regardless of whether you were legally obliged to consult, do you think it was politically wise to ignore or seemingly disregard all those factors and just reappoint an old political ally? Does it not look bad?

Ms Harman: I did not ignore or disregard any factors. I was cognisant of all the factors and took all of them into account and then made a decision. The decision I made might not be one that others agreed with, but it was my judgment. It is not true to say that I just did not take things into account or did not know what was going on. People who took account of and knew the same things might have made a different decision, but this is a question of judgment and that was my judgment.

Dr Harris: Since then you have said you support him 100%. Are you sure it is wise to say that in view of the PAC inquiry and this one? Does it not put you in a difficult position? Would it not be wise to say that obviously he has your support but you would have no hesitation in asking him to resign if you were persuaded by the scrutiny of Parliament, of which I would hope you would have some cognisance, that that was the best thing to do, or are we wasting our time in this questioning and making a report because you give him 100% support come what may?

Chairman: We have not formed a view one way or the other, so do not assume that we have.

Q255 Dr Harris: I am not saying that we have formed a view, but if we did have a view would you consider it?

Ms Harman: I am strongly committed to the organisation and I believe that its role is very important. There are lots of people who do not agree with that role and do not think that it should even exist. I regard it as my responsibility as minister to champion the organisation. If you are championing an organisation that you believe is an important one for the future of this country and you have reappointed the chair you give that person your full backing to do that job. I am happy to acknowledge all the things that I took into account, but having been reappointed he is entitled to my full support and, looking to the future, I back him to get on with a very important job. I have said that sometimes we will disagree about things.

Q256 Chairman: I believe we are going over ground we covered before Dr Harris arrived. I turn to another issue: the interim chief executive. The first chief executive, Nicola Brewer, left in May and she has not been replaced. Her interim successor, Neil Kingham, told the PAC the other week that he was being paid £1,000 per day until the end of January which, in round terms, works out at £1/4 million a year pro rata and is rather more than the Prime Minister earns. Bearing in mind what the Prime Minister has said about high earnings in the public sector do you think that is an acceptable situation? By that time we had had an interim chief executive for the best part of nine months being paid a huge amount of money.

Mr Rees: Neil works four days a week and gets paid only for the days he works.

Q257 Chairman: The point is the same pro rata.

Mr Rees: I am sorry. I was dealing with your question which implied that he worked 250 working days. That said, the Committee of Public Accounts has asked for the information which we shall provide. A thousand pounds a day is a lot of money, certainly to many civil servants, but that was the rate considered appropriate by the EHRC and it is within their discretion to pay that amount. Obviously, we are in the process of finding a full-time chief executive. That process is taking longer than we would have wished.

Q258 Chairman: Why is it taking so long?

Mr Rees: Because of the issues to which you have alluded over the salaries which are now appropriate for the chief executives of public bodies. Therefore, in light of recent announcements the commission has taken the view that it is better to suspend the process it started.

Q259 Chairman: The EHRC is paying somebody £1,000 which pro rata is £1/4 million a year because there is an argument over what the chief executive should be paid. Is the suggestion that the chief executive is to be paid more than £1/4 million a year or less? If it is less what is the point of keeping on this person at £1/4 million a year?

Ms Harman: Because there are a number of processes under way. I was not the responsible minister when the previous chief executive was appointed in March 2007. At the time this vacancy came to be refilled there was keen concern about the public finances and top pay in the Civil Service. This is an equality body and therefore it makes sense for the commission to be keenly aware of it and to have an interim arrangement. There are always different arrangements for a temporary appointment rather than a permanent one. I would not expect them to be making a permanent arrangement based on the same rate as applied to the previous chief executive. William Cockburn is carrying out a review of appropriate pay for people at the top and therefore it makes sense to make the appointment and decide on pay in the light of the review.

Q260 Chairman: But that review is a relatively recent phenomenon. If we take this as the last month we have had an interim arrangement in place for six months. Is it the intention to pay the new person more or less than the previous full-time permanent chief executive?

Ms Harman: Less.

Q261 Chairman: Less than you are now paying the interim one?

Ms Harman: When somebody works on a temporary basis it is a wholly different arrangement; it is a short-term contract.

Q262 Chairman: I still do not understand why it is taking so long. If you started the process in May when the previous incumbent decided to leave why are we still so far down the track irrespective of the relatively recent arguments about civil service pay? That vacancy has existed for six months. Have people been interviewed in that period or applied for the job? Has it been advertised?

Mr Rees: The job was advertised in the summer. The previous chief executive had a salary of £185,000 plus bonus which was not one for which we were responsible. It was agreed by a previous ministerial and official team. As we got close to the position where a decision could be taken no salary was suggested in the advertisement but there was probably a legitimate expectation on the part of some of the people who applied for it that the salary would be considerably more than now seems likely to be the case. That was why the commission decided to suspend the competition. People had been interviewed and we were reaching the last stages. The commission will now have to decide in light of the announcement how it goes forward.

Q263 Chairman: People applied for the job?

Mr Rees: Yes.

Q264 Chairman: And one or more of them would have been satisfactory from your perspective.

Mr Rees: There was a formal panel process which agreed that there were three candidates who would have been suitable for the job were it possible to agree on terms.

Q265 Chairman: None of those people was prepared to work for what the commission was prepared to pay?

Mr Rees: In the final stages of that competition new announcements were made about pay and it was agreed by the commission that that competition should be suspended.

Q266 Chairman: It is a straightforward question, so please let us have a straightforward answer. None of those people was prepared to work for what you were prepared to pay.

Ms Harman: That implies that what the commission was prepared to pay was established. As I have explained, there is a review and reconsideration under way. Therefore, it makes sense for the commission to make a decision informed by that judgment. I believe that is the right thing to do.

Q267 Chairman: When will the decision about what the EHRC is to pay be made?

Ms Harman: In due course when Cockburn has reported.

Q268 Chairman: When will that be?

Ms Harman: I am confident that Neil Kingham who is the acting director-general is doing the work necessary to take it forward.

Chairman: I am sure he is doing a very good job at £1,000 a day or £1/4 million a year, but I am sure we would all like to see somebody engaged at a lower rate of pay.

Dr Harris: Trevor could do it during the other one-and-a-half days.

Q269 Chairman: Perhaps we could be informed when the commission will make up its mind about the rate of pay for this job. You had three candidates all of whom would have been acceptable but the commission did not make a formal offer. Presumably, they may have found other work by now; we do not know, but when will we know the rate of pay for this job? If you say that will be known when the Cockburn report comes out, when will that be? You must have a rough timetable for that, surely.

Ms Harman: I do not want to provide a rough timetable if one has not already been given. Perhaps I may write to you about it. It is important to make a permanent appointment at a pay rate which is recognised to be fair and proportionate. What the previous chief executive was paid would not be considered to be that in my view. Strictly speaking, it is a matter for the commission. I have discussed it with Trevor and he agrees. Therefore, with the acting chief executive carrying on we need to find a way forward. There must be a big re-think about these top jobs. It is because of that consideration that we have an interim arrangement that is more costly.

Q270 Chairman: If you employ somebody at, say, half what you pay the present chap you can get someone for two years instead of one at that rate, could you not? The problem here is that you are throwing a lot of money at the problem; there is no sign of an end to it; you have no idea when the rate of pay is to be set, never mind when you start to re-advertise the job. The interim arrangement will probably be in place for 15 months before you get anybody in place, if you do.

Mr Rees: What we have said is that the current interim arrangements run until the end of January.

Q271 Chairman: Then what?

Mr Rees: It is then the commission's responsibility to propose to us how it would like to continue the arrangements. It has not made that proposition yet, but when it does we shall be happy to share the details with you.

Q272 Chairman: That is six weeks ago, is it not? Have you been talking to the commission about what it will do?

Mr Rees: Obviously we have been but I am not going to talk about it today.

Q273 Chairman: Do you not believe we should be informed about what the likely scenario will be?

Ms Harman: 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. In the mean time we carry on with the temporary arrangements that have lasted longer than was at first anticipated. Stepping back from it, is it right to take a fresh look at the pay rate? I believe that it is. If it means that the commission carries on with the interim chief executive/director-general for a bit longer I do not believe the commission should be hung out to dry because of it.

Q274 Chairman: I want to ask about the three candidates who were potentially acceptable. I do not ask who they are. There has been some suggestion in the evidence we have received that Trevor Phillips has difficulty getting on with chief executives. I am not talking just about the EHRC; there is also evidence about the appointment of chief executive at the CRE. Did Trevor Phillips have anything to say about the three candidates? Was he prepared to work with any of them or did he express a preference that he would not like to work with any of them?

Ms Harman: I think you are barking up the wrong tree if you believe that lying behind what we have said about pay is an issue about Trevor being unable to work with the people who have been put forward. That is not the case. I would not come along and say that the whole delay was caused by the issue of pay if there was something else lurking around as an issue. It was not.

Q275 Chairman: I am pleased to hear that, but I should like to learn from Mr Rees whether Trevor was aware of the three applicants' names and had any particular concerns about any of them?

Mr Rees: To explain the process, the commission employed a head hunter. There was a public advertisement which took place before the summer. Following that there was a process whereby the head hunters whittled them down to a short list of 12. There was then a panel of which I was part which Trevor chaired. A number of independents were on that panel. The panel interviewed six candidates. Of those we concluded that three were acceptable. That normal public appointments process had been going on at the same time as the emergence of a totally different climate on pay for people in the public sector. Those two coincided and now we are working out the best way forward.

Ms Harman: I think the commission should be given credit for doing that. It is trying to do the right thing here and not be held over a barrel because of the temporary arrangements that it has entered into. I think that would be perverse. It is taking a good step forward in asking the difficult question: is this to be perceived as a reasonable rate of pay? We have talked a lot about perception. What do we think about the rate of pay of the previous chief executive? I think the commission should be commended for taking that view and lots of other organisations in the public sector should do likewise. I hope the Committee will not hang it out to dry over the temporary arrangements it is making for a very good acting director-general who has stepped in at this time to provide continuity and stability and make sure the organisation is going forward strongly. For the longer term we need something that is good value.

Q276 Earl of Onslow: Minister, you appointed somebody as chairman of the board knowing that he had a conflict of interest, that five commissioners had resigned, that Deloittes had reported on this matter - it is about the most damning report I have ever read - and that the board was dysfunctional. You have not found a new chief executive; you do not know the pay rate, and when asked just now you said you thought you might write about it. That does not exactly give the impression of a minister who is totally on top of her job, does it?
Ms Harman: I think I am on top of my job. I suspect you would not agree with the way I am doing it, but please do not say I am not on top of the job because I come to a different view. You have thrown out a whole load of allegations about Trevor whom I have appointed. I can say that I have appointed somebody who is deeply committed to the equality movement across the piece, who is highly intelligent, who has a long-standing record in this area and who is a great public communicator. Perhaps his single fault is that he will not necessarily always agree with me but nobody is perfect. That is why I have appointed him. I do not think it is right for you to throw out suggestions about conflicts of interest when that issue has been resolved. I do not agree that I am not on top of my job. I do not know what it would take to be on top of the job.

Q277 Baroness Falkner of Margravine: I want to go back one step to the appointment of the interim chief executive. You have elaborated on the process of appointing the next chief executive. Can you tell us what process was followed and when the appointment of the interim chief executive was made?

Mr Rees: I believe that it came as a surprise to the chair of the commission when Dr Brewer told him that she had got the job.

Q278 Baroness Falkner of Margravine: Presumably, that was in April.

Mr Rees: I think she told him slightly earlier.

Q279 Baroness Falkner of Margravine: She left in May.

Mr Rees: She left formally in May. It was clear that we would not be able to run a process to appoint a full-time chief executive before she left.

Q280 Baroness Falkner of Margravine: I understood all of that.

Mr Rees: I am going to answer your question. It was then decided that there would be a process for the appointment of an interim chief executive/director-general. That process consisted of inviting a number of head hunters to ask people whether they would be interested. A panel was set up to look at the list of people brought together and then there was an objective interview process. All of that happened and Mr Kingham was believed to be the best candidate.

Q281 Baroness Falkner of Margravine: I presume that the panel set up comprised the remaining rump of commissioners who had not yet resigned. There is no remuneration and appointments committee within the commission, is there?

Mr Rees: Those are two slightly separate issues. There is a remuneration committee but the decision about the appointment of chief executive under the statute is one for the commission to make with the approval of the Secretary of State/Lord Privy Seal. The panel had two commission members, the chair, deputy chair and myself as representative of the Secretary of State.

Q282 Lord Dubs: I want to move away from people and deal with policy issues. The EHRC has focused on the concept of fairness. In the past we have traditionally used the word "equality". They are not quite the same. Would you care to comment on that?

Ms Harman: Most of the time I use the word "equality". I often say that to ensure equality is only right and fair. Sometimes they are interchangeable and sometimes they mean very different things. I am aware of the intellectual debate about the difference in the meaning of those two words. I do not think there is anything wrong with that debate, but I am quite content to leave it to others to have that debate and get on with tackling discrimination and working towards equality or fairness, whatever you think it is. I know there was a big rumpus about whether or not it was fairness or equality but it was not something about which I felt I could spend a massive amount of time thinking.

Q283 Lord Dubs: In relation to the Equality Bill, which after all is something on which you spend a lot of time, the EHRC is in a somewhat unusual position in that it is lobbying the government to amend it - it wants some changes - while at the same time it has been asked by you or the government to prepare guidance on how it can be implemented. On the one hand it is lobbying to change the Bill; on the other hand it is being asked to give guidance on how to make it effective. Is there any difficulty in those two roles?

Ms Harman: That is quite usual. One finds that the police make representations to the Home Office about what they believe the law should be. Once the law is in being they will put it into practice. I do not believe that is particularly unusual.

Earl of Onslow: Minister, I return to the "fairness" point. Without making a value judgment I note that in the United States where there is no maternity leave there is a greater number of women in senior executive roles than in countries with maternity leave. That may be fairer but it is less equal. How do get round that one?

Chairman: Minister, it is completely irrelevant to this inquiry so do not feel that you have to answer it.

Q284 Earl of Onslow: It is not irrelevant. I am interested to hear what the minister says.

Ms Harman: To give a 30-second answer, in this country we want to see women and men at the top of organisations. We also want mothers and fathers to have sufficient time off with their children. We should aim to ensure that the next generation has enough of their parents' time and that women are not penalised in the labour market for doing the very important job of bringing up children. That is what happens currently. We need to make the employment market more family-friendly and enable fathers as well as mothers to spend more time with their children when they are young. Just because we have not done it yet does not mean it is impossible.

Chairman: Thank you very much.