Building a fairer Britain: Reform of the Equality and Human Rights Commission
Consultation response by the Disability Charities Consortium
15th of June 2011
For further information, please contact: Cristina Sarb, Public Policy Advisor, Scope6 Market Road N7 9PW. T: 0207 619 7255. E:
The Disability Charities Consortium (DCC) is an informal coalition of seven disability charities: Leonard Cheshire Disability, Mencap, Mind, RADAR, RNIB, RNID and Scope. We work on issues of joint concern, including disability discrimination legislation. Given the vital role that the Equality and Human Rights Commission (EHRC) has played in driving progress towards disability equality, we have joined forces with other disability organisations to write this submission. These are Changing Faces, Guide Dogs for the Blind Association, Inclusion London and National AIDS Trust.
The Disability Charities Consortium (DCC) welcomes the opportunity to respond to the Government’s consultation on the reform of the Equality and Human Rights Commission (EHRC). We recognise that there is a need to reform the Commission and welcome the intention to transform it into a modern, transparent and accountable body in its activities. We are concerned however that the proposed restriction of the duties and powers of the Commission will weaken the institutional machinery responsible for the protection and promotion of equality and human rights in the UK.
In order to tackle discrimination and advance equality effectively, the Commission must have adequate powers to facilitate the carrying out of its mandate. A broad range of functions is meaningless if not accompanied by an appropriate level of funding. DCC calls on the Government to ensure that the Commission will be empowered to drive the change towards greater disability equality and be adequately resourced to act as an effective champion of equality and human rights. Below is a general response to the issues raised in the consultation response. This is followed by specific responses to the questions raised in the consultation document.
The consultation document puts forward a number of structural changes which, if implemented, would fundamentally affect the nature of the Commission as an institution. We believe that the following considerations should play a key role in any kind of reform of the Commission that will be introduced:
- The Commission’s duties and powers should not become too restricted. The DCC is deeply concerned that, taken in their entirety, the proposals put forward in the consultation document will unduly constrain the role of the Commission. Such narrowing of its powers and duties would necessarily have a negative impact on the Commission’s effectiveness in tackling discrimination and addressing the barriers that prevent disabled people from realising their potential and participating in society.
- The Commission must be more than a regulator and a promoter of good practice. We would strongly contend that the core function of an equality regulator should include the promotion of equality generally. It is undesirable to seek to limit the role of the Commission to that of a purely legislative or compliance based model of regulator. The EHRC should have a range of functions to drive change, particularly on some of the more complex and deep-seated issues of discrimination and inequality that disabled people face. The changes necessary to achieve greater equality for disabled people cannot be addressed through legislation alone.
- The EHRC should retain a broad remit. The proposals, if implemented in their current form, would result in a much reduced body that can deliver less in terms of disability equality.We have commented below on the Government’s proposals to amend the EHRC’s statutory framework and key provisions contained in the Equality Act 2006. As a broader and more fundamental concern, we find it extremely worrying that the premise underlying some of the proposals is that the EHRC’s problems result from it having an unworkable remit. We find it difficult to reconcile the impact and the signal this sends about the importance of equality with the priorities which the Government has set out in its Equality Strategy and elsewhere.
- The proposals in the consultation document reflect a conflation of concerns around effectiveness and the need in principle for the Commission to have certain powers and duties. The importance of having an institution with robust powers and functions should not be conflated with concerns about the way that institution has performed to date. We are concerned that many of the proposals put forward seem to have developed from such concerns, and largely recommend a change in the statutory duties as a way of improving the Commission’s effectiveness. We very much share the Government’s commitment to ensure that problems in the EHRC’s performance are adequately addressed; however, we believe it is appropriate that these be dealt with by better management, not bylegislative change to take away some crucial powers and duties altogether.
- There is a need for clarity as to what alternative provision would look like if powers or duties that the Commission currently has are to be removed. There is generally not sufficient detail in key elements of the consultation document in relation to what will replace the Commission in those areas where there is a transfer of functions, such as with the proposed new information, advice and support system and the new funding stream to replace the Commission’s grants programme.
SPECIFIC RESPONSE TO CONSULTATION PROPOSALS
Question 1: Do you agree that Section 3 should be repealed?
DCC welcomed the inclusion of a purpose clause outlining the type of society that the EHRC should strive towards as contained within Section 3 of the Equality Act 2006, and would disagree with this clause now being repealed. In our view, the consultation document reveals a certain degree of misunderstanding about what this clause seeks to achieve. The main argument put forward as to why this should be removed is that general duty set out under this clause does not serve a legal function. This overlooks the importance of the general duty in explaining the rationale for the Commission and giving direction in terms of what it should aim towards in carrying out its specific functions.
Furthermore, we believe that this general duty is useful in that it clearly sets out the interrelated nature of the general duty, and the functions within it. The three pillars of equality, human rights and good relations are closely connected and need to be considered together to be at the centre of the EHRC’s work. We take the view that it would be very detrimental if we were to move towards a view of the EHRC as representing two separate organisations under the same roof. We are worried that the unintended consequences of removing the general duty, together with some of the other changes proposed in the consultation document, pose precisely this risk. There are repeated references in the consultation document to the EHRC acting as an equality regulator and as an NHRI, which gives the impression that in the future, there is going to be greater separation between these two roles.
The need for a purpose clause is further reinforced by the status of the Commission. The work of the EHRC is inherently different from that of other regulators. An equality regulator is different from bodies overseeing other forms of regulation in that it is not concerned with just technical rules. Also, its regulatory purpose comes from rights conferred upon the individual, not to regulate other bodies directly. The use of a purpose statement, framed in wide terms, is helpful in setting out the vision of the Commission and in providing a clear statement of goals.
As is the case with some of the other proposals in the document, there are a number of underpinning assumptions for this change that we do not support. The Government’s perception that the objectives in Section 3 set ‘unrealistic expectations’ is rather worrying, as it appears to suggest that these are too ambitious to achieve in practice. These underpin the Government’s own equality strategy and it only makes sense in our view that the EHRC focuses its activity towards achieving the same goals. Also, in our view this claim is based on a mischaracterisation of what this clause actually requires the EHRC to do. As it was drafted, Section 3 states that the EHRC should exercise its functions ‘with a view to encouragingand supporting the development of a society...’. This implies no expectation of the EHRC to succeed in its mission alone and we therefore remain unconvinced that there is any compelling argument as to why the general duty should be scrapped.
Question 2: Do you agree that remodelling the duties at s.8 of the Equality Act 2006 to mirror the role and functions set out in para 1.9 of chapter 1 will help to focus EHRC on its core functions as an equality regulator? If not, what do you think EHRC’s core functions should be?
No. The proposal to ‘remodel’ the Commission’s duties is of significant importance, and would have considerable implications. Despite the far-reaching nature of this proposal, there is insufficient information in the consultation document about the precise changes government wants to see in terms of amending Section 8 on which to assess this. If such proposals are to be taken further it would be essential for the precise detail to be provided, with a clear rationale, and ample time for consultation and discussion. We note that the consultation document states that where legislative changes are considered necessary, the Government plans to consult on draft regulations. However, a consultation on draft regulations would be limited in scope and be primarily focused on the content of the regulations rather than the overall approach to reform. There is a strong need for greater clarification at this stage to be able to influence the way in which the Government intends to proceed.
In general, we believe that the proposals to redefine the EHRC’s core functions and to remove those functions which the document categorises as non-core functions represent a significant watering down of the role of the Commission. Given that four of the six proposed new elements of the EHRC’s equality remit are focused primarily on legislation, this reveals a very narrow conception. We agree that using its regulatory powersplays an important role in ensuring that best use is made of the existing legal framework, however we believe that it is important for the Commission to continue to be balanced in its approach. It is crucially important that the EHRC continues in its role of promoting equality and diversity alongside its regulatory role.
There are two principal reasons why the Commission’s regulatory powers should be part of a broader range of tools at its disposal. Firstly, while the legislative framework provides important protections for disabled people, limiting the role of the Commission to specific legislation would limit the issues that the EHRC can address. This would potentially result in a gap between the nature of challenges disabled people face and the range of levers available to the Commission to address them. The consultation document expresses a concern that the duties to ‘promote understanding of the importance of equality and diversity and promote equality of opportunity can be fulfilled by undertaking a very wide range of activities’. We believe that this approach has been the right one, and that it is important for the EHRC to continue to be charged with duties that can be met in wide-ranging ways as discrimination and inequality manifest themselves in many ways that cannot always be set out prescriptively.
The second reason is that the scope of its equality and diversity duties are wide. Although key aspects of the EHRC’s work under section 8 are related to the existing ‘equality enactments’, its responsibilities actually extend beyond this. As the Explanatory Notes for the Equality Act 2006 indicate, the provisions under section 8 ‘require the CEHR to promote understanding of, and encourage good practice in relation to, equality and diversity (whether or not this relates to compliance with equality enactments (as listed in clause 35)’. In essence, this gives the EHRC the ability to go beyond what is specifically required by the legislative framework. In our view, this would be crucial for ensuring that the new legislation is seen as an opportunity not simply a burden, and should be maintained to encourage progress from bare compliance to good practice. We would be very worried if elements of the Commission’s responsibilities to positively promote equality will be lost as a result of the reforms to refocus it on core regulatory functions.
The need for the EHRC to have broad powers which enable it to be flexible and responsive in its approach is acknowledged in the recent opinion published by the Commissioner for human rights on national structures for promoting equality. This emphasises that‘the extent of the functions and the nature of the powers accorded to national structures for promoting equality are a determinant of their effectiveness. It is important that these bodies are accorded the full range of functions required to enable them to implement a strategic mix of work…. It is this strategic mix of activity that enables impact to be achieved’.Below, we have highlighted some specific examples for why the EHRC’s wide-ranging functions are so important:
- FB v DPP - the EHRC intervened in this ground-breaking case which found the Crown Prosecution Service (CPS) in breach of the HRA for failing to prosecute an assault case on the grounds the victim had schizophrenia and could not be a reliable witness. This case led to recognition of the extent of stigma and misunderstanding within the justice system and wide-ranging changes in policy and practice in the CPS.
- Pre-employment health questionnaires - the EHRC's public support and proactive advice for disability organisations in pursuing a ban on the use of PEHQs by employers was invaluable, especially in terms of legal issues, access and ensuring amendments were sound and constructive.
- Disability-related harassment inquiry - this is highlighting mental health and learning disability, particularly low level ongoing harassment, as a key issue, which is a step forward in the disability hate crime / antisocial behaviour debate and has already increased awareness of this under-reported problem
- Working Better programme - this initiative, still ongoing, is doing good work to bring employers and equality groups together to foster good relationships, challenge misperceptions and develop good practice together. They have done work on family-friendly working, older people and disability.
These are useful initiatives that illustrate the range of initiatives undertaken by the Commission to improve equality of opportunity within society and it is essential that the EHRC retains equality duties that are wide enough to enable it to carry out similar types of work in future.
Moreover, ‘in promoting equality of opportunity between disabled persons and others, the Commission may, in particular, promote the favourable treatment of disabled persons’under Section 8. This provision recognises that achieving disability equality often requires different and sometimes more favourable treatment, and that a uniform set of duties will not deliver equality of outcomes for disabled people. The Equality Act 2010 retains this aspect of disability discrimination legislation and the duties of the Commission should likewise reflect this. There is still significant misunderstanding that prevails about this. The EHRC should continue to be able to educate public bodies and the broader public to ensure they are knowledgeable about and understand what this involves.
In terms of the proposals a. to f. put forward in the consultation document, we are concerned that the proposals are unnecessarily wordy and unclear and will make it very difficult for people to understand the role of the Commission. Therefore, a more simplified approach would be necessary. There are a few aspects on which we would like to seek clarification. The proposition (Proposal 2 Para 1.9 (a)) states that the EHRC would have a responsibility for ‘promoting awareness of equality legislation, so that individuals, employers and others understand their rights and obligations’. A key role of the EHRC will be to work with employers to promote equality, including for disabled people. Having said that, while awareness-raising among employers is vital, this does not detract from the need to raise awareness among the other bodies that have duties under the Act. We would seek assurance that the functions of the Commission will be drafted in such a way to extend to the full scope of bodies which have responsibilities under the Equality Act, rather than singling some out for attention or greater priority.
The emphasis throughout proposal 2 on partnership working is a welcome one in its intent, and this should be by all accounts a key vehicle for achieving the Government’s equality objectives. We are concerned however that the proposed new equality duties for the EHRC blur the distinction between the clear responsibilities that the Commission should have and the working methods that it can use to achieve those.The proposed duties should focus on the ‘what’, rather than the ‘how’. While it is absolutely desirable for the Commission to make greater use of partnership working, this should be presented as an option that the Commission can use when appropriate. We would be concerned if this were to restrict the Commission in a way which implies that it could not undertake these functions unless it does so in partnership, and reduce the scope of the duty by implication.