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Black people, racism and human rights Contents

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4Enforcement of Black people’s human rights

The role of the Equality and Human Rights Commission

91.A question that has arisen in our inquiry is whose job is it to ensure that the recommendations that have been made in the numerous reports relating to racism and human rights are implemented? As Mr David Lammy MP explained:

“You have to have an enforcer. You can have all the data and recommendations you want, but if you have no oversight, no one to say, “Implement it”, no one to report what has been implemented and no one proximate to communities who feels that it is their thing to champion, you get into the mess we have now got into in Britain, where a Prime Minister gets away with yet another commission […]”103

92.It might be reasonably argued that the Equality and Human Rights Commission (EHRC) as the body with statutory responsibility for protecting human rights, including for Black people, and reducing inequalities, including racial equality, should be taking a lead in this regard. It is clear that the EHRC does see itself as having such a role. Rebecca Hilsenrath, Chief Executive of the EHRC told us that “[w]e have played quite a vital role in scrutinising the Government’s implementation of those reviews”.104 Giving an example of this she went on to say “[w]hile it has not led to action, we were part of the HMPPS expert panel on challenging progress against the Lammy recommendations.” In a similar vein, David Isaac, the outgoing Chair of the EHRC, told us: “[in] 2017, we produced the most extensive review of the inequality of race outcomes, and suggested to government that there should be a coherent race strategy”.105 While these actions are commendable, they seem to position the EHRC as one among many actors who make suggestions and recommendations to Government and seek to persuade it to act upon them rather than the leading champion of Black people’s rights, demanding and enforcing change.

93.In terms of its ability to act as a vocal champion for the Black community, witnesses told us that the EHRC compares unfavourably with the Commission for Racial Equality (CRE) which it replaced when it was established in 2007.106 Mr David Lammy MP made these comments about the impact of this change:

“I want to say loudly that it has turned out to be a mistake to get rid of the Commission for Racial Equality. We now have the Equality and Human Rights Commission. Its budget and staff have been substantially cut, and there is a widespread view that, unfortunately, it has not been able to do what the old CRE was able to do in relation to race and the grass-roots connections that the CRE had. We miss the architecture because we have lost it.”107

This view was endorsed by Lord Woolley, who himself served for a term as an EHRC Commissioner between 2009 and 2012. He said of the Commission:

“It has been death by a thousand cuts, and it is a shadow of itself. It is almost frightened of its own shadow, frankly, and as a result there is little or no enforcement.”108

94.In both oral and written evidence to this inquiry the EHRC was keen to highlight the positive work that it has undertaken in recent years to protect and promote Black people’s rights. Examples include:

• The 2018 “Is Britain Fairer?” Report, which provided a comprehensive evidence base for the deep-rooted race inequalities that persist across many areas of life;
• Use of its inquiry powers under section 16 of the Equality Act 2006 to inquire into racial harassment in publicly funded universities in England, Scotland and Wales;
• The 2017 publication of its ‘Roadmap to race equality’ which made specific recommendations across a wide range of areas and called for a comprehensive, coordinated and long-term government race equality strategy based on these. The Roadmap was a major contributing factor to the establishment of the Race Disparity Unit (RDU) in the Cabinet Office; and,
• Use of litigation and enforcement powers. Of the legal cases the Commission has closed over the last three years, almost one in five cases either wholly or partly addressed issues of race.

95.While we do not doubt that much of this work is excellent, it is clear from our evidence that it is insufficiently visible to the Black community. One respondent to the ClearView polling suggested the need for “Some kind of commissioner who can step in and demand that institutions such as the police investigate injustices and punish people who do wrong.”109

96.This Committee has long been concerned that the EHRC’s powers in relation to human rights are not fit for purpose. This undermines its ability to protect Black people’s rights more effectively. In its written submission the Commission summarised the current position and its impact:

“One key outstanding issue is that the Commission’s equality and human rights enforcement powers are asymmetrical. While we can provide legal assistance to individuals in Equality Act 2010 proceedings, we cannot do so in human rights cases unless the claimant is also complaining of a breach of the Equality Act 2010. There have been several instances where we have been unable to provide financial support for a meritorious and potentially strategic case because of this limitation on the cases we can fund. Similarly, although we have the power to undertake an investigation where we suspect an organisation has committed an unlawful act under the Equality Act 2010, this power does not extend to human rights breaches. The lack of an investigation power limits the Commission’s ability to tackle suspected breaches of human rights law.”110

97.The Commission’s limited budget is another constraint on its effectiveness. In 2006 the CRE had a budget of £90 million just for race issues; the EHRC currently has a budget of £17.1 million for all the work it is required to do across all the protected characteristics.111

98.At the time of writing there are currently no commissioners on the EHRC board who are Black. David Isaac told us that he has made recommendations to the Secretary of State, who makes the appointments to the board, about the need for greater diversity amongst its members.112

99.It was announced on 15 October 2020 that the preferred candidate for the next Chair of the Commission is Baroness Falkner of Margravine. This Committee, with the Women and Equalities Committee, will conduct a pre-appointment hearing to scrutinise her appointment in due course.

100.There is a perception among the Black community that the replacement of the Commission for Racial Equality (CRE) with the Equality and Human Rights Commission (EHRC) has resulted in a weaker focus on race equality issues than was previously the case. There are currently no Black commissioners on the EHRC. This has left the Black community without a clear visible champion for their rights. At national level there is no organisation whose priority it is to champion race equality and lead the drive for progress.

101.For the EHRC to be, and be seen to be, an effective enforcer of Black people’s human rights:

i)Black people must be represented at the top level of the organisation including as commissioners;

ii)It must have adequate resources, to which end we urge the Government to consider restoring the Commission’s budget to previous levels; and

iii)Government must harmonise the Commission’s human rights enforcement powers in line with its powers in relation to equality, so that it can undertake investigations where it is suspected that an organisation has breached the Human Rights Act and provide legal assistance to individuals in Human Rights Act cases.

102.Even if the EHRC’s capacity to promote and protect Black people’s human rights is improved as we recommend, we nevertheless believe that a need would remain for a high profile organisation at national level, whose priority is to focus on race equality and lead the drive for progress. The UK has lacked capacity in this area since the Commission for Racial Equality was folded into the EHRC. The re-creation of a body along these lines must be considered as a matter of urgency. Such a body should also provide infrastructure to drive forward change at local level, fulfilling a similar role to that previously performed by the race equality councils that were set up in partnership with the Commission for Racial Equality.

Equality law

103.Respondents to the survey conducted by ClearView, told us that one of the key actions that must be taken to improve the protection of the human rights of Black people is better enforcement of anti-racism legislation.113

104.The Equality Act 2010 prohibits unlawful discrimination on the grounds of race and through the Public Sector Equality Duty (PSED) requires public bodies to proactively take steps to address racial inequalities. The PSED has the potential to drive real change in the protection of Black people’s human rights because it requires public bodies to identify and eliminate unlawful discrimination, advance equality of opportunity and foster good relations between groups. However, currently, the duty is not always well implemented and therefore its potential is not fully realised. Additionally, the “specific duties” under the PSED which set out the requirements on public bodies are relatively weak. As a result, the burden of enforcement lies with individuals who are relied upon to challenge discrimination when it occurs.

105.The Women and Equalities Committee examined how the PSED was working in its report “Enforcing the Equality Act: the law and the role of the Equality and Human Rights Commission” published in July 2019.114 It concluded that the specific duties should be more focussed and strategic and recommended that:

“The Cabinet Office work across Government to identify a small number of evidence-based issues of inequality or discrimination suitable for action either within a specific sector or cross-departmentally and that the Government introduce new specific duties under the Equality Act 2010 to direct the relevant Department and public authorities to take action on these identified inequalities. These specific duties should be reviewed at least every three years in line with new data available from the EHRC’s report Is Britain Fairer? and the Government’s Race Disparity Audit, among other sources.”115

106.The Government should consider whether changes are required to equality legislation to make it more effective as a tool to enforce Black people’s human rights. This should include consideration of whether more focused and strategic specific duties under the public sector equality duty (PSED) are needed, as has previously been recommended by the Women and Equalities Committee. We support this and also suggest that particular consideration is given to the inclusion of a requirement for public authorities to take action to address identified racial inequalities. The EHRC must take a more proactive approach to ensuring that public bodies comply with the requirements of the PSED.

Support for the Black-led voluntary sector

107.In the course of this inquiry concern was expressed by witnesses that despite the work of many excellent smaller organisations in the Black community there is a lack of high-profile, well resourced, Black-led organisations to maintain pressure for better protection of Black people’s human rights. Mr David Lammy MP told us:

“It is also right to say that, despite the tremendous work of people such as Simon Woolley and organisations such as [Operation Black Vote] and the Runnymede Trust, they are charities staffed by about five or six people. It is tremendous work, but there is no organisation dedicated to race in this country that has staffing of more than five or six people, one or two of whom at any one time will be interns. At any time, those organisations can be subject to an austerity environment or the coming recession and will lose funding and other things. There is no Stonewall or big charity with tens or hundreds of people dedicated to the issues. That is why Governments get away with failing to implement reviews.”116

108.The Office for Civil Society must consider what can be done to support the further development of independent Black-led voluntary and community sector organisations.

Data

109.In August 2016, Rt Hon Theresa May MP, then Prime Minister, announced the Race Disparity Audit which set out to examine how people of different ethnicities are treated across public services by publishing data held by the Government. The results of the audit were published in October 2017 on a purpose-built government website which sets out the available data about ethnic disparities, including in education, employment, health, housing and the criminal justice system.117

110.Access to comprehensive data disaggregated by ethnicity is essential if protection of Black people’s human rights is to be monitored and enforced. Evidence to this inquiry has highlighted areas in which adequate data is not currently available to meet this aim:

• Traffic stops made by the police under section 163 of the Road Traffic Act 1988 are not routinely recorded, nor the ethnicity of the driver who is stopped. In its evidence Runnymede Trust called for this data to be collected.118
• In its evidence the Independent Advisory Panel on Deaths in Custody calls for all places of state detention to publish data about deaths that occur in custody aggregated according to race and ethnicity, as well as other protected characteristics.119
• In response to the Covid-19 pandemic the Government created temporary release schemes with the intention of reducing the prison population to facilitate social distancing. Clinks, in its evidence to this inquiry, flagged a concern that a risk averse approach to releasing Black people could exclude them from release schemes and called for transparent data on the ethnicity of those released to made available to allow scrutiny of whether release opportunities have been equitably applied.120

111.While the work of the Race Disparity Audit was ground-breaking and very valuable in bringing together the available data, we are concerned that gaps in data collection and analysis remain and act as a barrier to the enforcement of Black people’s human rights. The race equality strategy we propose must have at its heart a cross-government commitment to improved data collection on racial inequality.

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