Equality and Human Rights Commission

The Equality and Human Rights Commission (EHRC) is a non-departmental public body in England and Wales, established by the Equality Act 2006 with effect from 1 October 2007. The Commission has responsibility for the promotion and enforcement of equality and non-discrimination laws in England, Scotland and Wales. It took over the responsibilities of the Commission for Racial Equality, the Equal Opportunities Commission and the Disability Rights Commission. It also has responsibility for other aspects of equality law: age, sexual orientation and religion or belief. A national human rights institution, it seeks to promote and protect human rights in England and Wales.

For the commission in the Republic of Ireland, see Irish Human Rights and Equality Commission.

Equality and Human Rights Commission logo

The EHRC has offices in Manchester, London, Glasgow and Cardiff.[1] It is a non-departmental public body (NDPB) sponsored by the Government Equalities Office, part of the Department for Education (DfE). It is separate from and independent from Government but accountable for its use of public funds. The Chairman of the Commission is David Isaac.[2]

The EHRC's functions do not extend to Northern Ireland, where there is a separate Equality Commission (ECNI) and a Human Rights Commission (NIHRC), each and both established under the Northern Ireland Act 1998 in pursuance to the Belfast/Good Friday Agreement.

Powers

The EHRC derives its powers from the Equality Act 2006, which resulted from the government white paper, Fairness for All: A New Commission for Equality and Human Rights.[3] Section 3 states the EHRC has a general duty to work towards the development of a society where equality and rights are rooted. This is taken to mean,

(a) people's ability to achieve their potential is not limited by prejudice or discrimination,
(b) there is respect for and protection of each individual's human rights (including respect for the dignity and worth of each individual),
(c) each person has an equal opportunity to participate in society, and
(d) there is mutual respect between communities based on understanding and valuing of diversity and on shared respect for equality and human rights.

Section 30 strengthens the EHRC's ability to apply for judicial review and to intervene in court proceedings, through giving explicit statutory provision for such action. Sections 31–2 gives the EHRC a new power to assess public authorities' compliance with their positive equality duties. It can issue "compliance notices" if it finds a public authority is failing in its duties. Public authorities, importantly, are bound under the Human Rights Act 1998 to act in a way compatible with the European Convention on Human Rights (s.6 HRA). The EHRC's role is therefore one of catching matters before they lead to the courts. So if you work for a public sector employer (like a local council or the civil service) there are more avenues to enforce equality standards in your favour. This may seem somewhat odd, considering that public sector employers are consistently shown to have excellent workplace practices.[4] Section 30(3) of the Equality Act 2006 allows the EHRC to bring judicial review proceedings under the HRA against public authorities. This is a stronger tool than usual, because the EHRC is not subject to the normal requirement of being a "victim" of a Human Rights violation.[5]

Under section 24, the EHRC can enter into binding agreements with employers. So for instance, it can agree that an employer will commit to equality best practice audits or avoid discriminatory practices that it may identify, in return for not investigating (a bad thing for employers' publicity). It can enforce these agreements through injunctions. Previously only the Disability Rights Commission had such powers, the CRE and the EOC were more limited. For instance, the EOC used only to have the power to get injunctions against bodies with a bad track record of discrimination.[6]

Section 20 gives the EHRC the power to carry out investigations when it has the "suspicion" of unlawful discrimination taking place. Before this had been limited to a requirement of "reasonable suspicion" which in effect led the predecessors to be much more cautious. In legal terms this is the difference between an irrationality test and a reasonable man test. In other words, a court could not declare an investigation unlawful unless it considered that the EHRC was carrying out an investigation where no reasonable person could have come to the same conclusion. Before a court could declare an investigation unlawful if it thought that the proverbial "man on the Clapham Omnibus" would not regard an employer as being a suspect "discriminator".

There are some complications in relation to the Human Rights Act 1998 with the EHRC's powers. If it is going to be a "named investigation" (i.e. the employer will probably get shamed by the publication of its name during an investigation), the EHRC cannot start an investigation into a public authority for breaches under the HRA. Also, it cannot support individual cases in tribunals and courts where the issue would concern matters that fall only under the HRA and not under some pre-existing British equality legislation (like the Sex Discrimination Act 1975). Practically this will be problematic, not least because if a claim did exist under the HRA, British legislation which did not cover such problems would usually be updated to comply with European Convention rights (these are the ones that the HRA implements). Also, the line between what is in the European Convention, what is actually covered by domestic legislation, is difficult to draw. At any rate, section 28 gives the Minister the power to give authorisation for a discrimination case to be fought if a domestic legislation issue has dropped away, but a purely human rights issue remains.

As a successor body, the EHRC's new powers are not dramatic. Some people have called for the changes to go further, for instance, to allow the EHRC to bring proceedings against employers in its own name on any issue (not just human rights ones).[7] The American, Australian, Belgian, Canadian and New Zealand counterparts can.

International status

Although it operates at sub-national level, the EHRC was in 2009 recognised as a member of the worldwide network of national human rights institutions, securing "A status" accreditation from the International Co-ordinating Committee of NHRIs (ICC). This gives the Commission enhanced access to the Human Rights Council, treaty bodies and other United Nations human rights bodies. The EHRC was the second NHRI in the UK, following the creation of the Northern Ireland Human Rights Commission (NIHRC) in 1999, and the Scottish Human Rights Commission (SHRC) became the third to gain ICC accreditation in 2010. The three bodies share representation and voting rights in the ICC and its regional network, the European Group of NHRIs.

The EHRC has since 2008 engaged in parallel reporting ("shadow reporting") at examinations of the UK under the UN and Council of Europe human rights treaties, and in the Universal Periodic Review. It was designated in 2008 as part of the United Kingdom's independent mechanism for promoting, monitoring and protecting implementation in the state of the United Nations Convention on the Rights of Persons with Disabilities (CRPD). (It shares that role with the other two NHRIs in the UK – the NIHRC and SHRC – and the Equality Commission for Northern Ireland.) The EHRC chairs the CRPD Working Group of the European Group of NHRIs.

Operations

The Board of Commission comprises commissioners with backgrounds in equality and human rights. The latest round of appointments was announced in May 2018. As of July 2019, they are:[8]

  • David Isaac CBE (Chairman)[9]
  • Caroline Waters OBE (Deputy Chair)
  • Suzanne Baxter
  • Pavita Cooper
  • Alasdair Henderson
  • Rebecca Hilsenrath (Chief Executive)
  • Susan Johnson OBE
  • Helen Mahy CBE
  • Mark McLane
  • Lesley Sawers OBE (Scotland Commissioner)
  • Professor Swaran Singh

Some of the first set of Commissioners resigned towards the end of their first term, while others did not seek a second term. These Commissioners included Morag Alexander, Kay Allen, Baroness Campbell of Surbiton, Jeannie Drake CBE, Joel Edwards, Mike Smith, Professor Kay Hampton, Francesca Klug, Sir Bert Massie CBE, Ziauddin Sardar, Ben Summerskill and Dr Neil Wooding. Nicola Brewer, the first chief executive (and ex officio Commissioner), returned to the diplomatic service.

The chair, David Isaac, was formerly chairman of LGBT charity Stonewall and trustee of the Diana, Princess of Wales Memorial Fund.[10] He is a partner at Pinsent Masons. Prior to his appointment, two parliamentary committees warned that there was a potential conflict of interest, because his legal firm carries out “significant work for the government”, after he accepted that his annual legal income of over £500,000 would dwarf the £50,000 he would earn from the EHRC.[11] While Christian Concern called for his appointment to be blocked, it was welcomed by the Jewish Chronicle.[12][10] In May 2019, Suzanne Baxter, another EHRC board member, joined Pinsent Masons.[13]

The Chief Executive, Rebecca Hilsenrath, was listed by the Times in 2012 as among the 100 most influential lawyers in the country, and has been awarded two honorary doctorates in law. She has practised in the private, public and pro bono sectors.[14] She has spoken about the relevance to her work of experiencing the challenges of bringing up five children and her strong Jewish faith.[15][16]

The EHRC has four offices: in London (in Salisbury Square, EC4), in Manchester (in the Arndale Centre), in Cardiff (in Gabalfa), and in Glasgow (on West George Street).[17]

In 2017, the National Audit Office reported that the Commission's budget had been cut by almost 70% in the ten years since it was created, with plans for a further 25% reduction over the next four years.[18]

In March 2017, the EHCR was criticised by campaigners, including Lord Ouseley and Peter Herbert, for allegedly targeting BAME staff for compulsory redundancies and for failing to appoint BAME personnel to senior positions. The campaigners said that, out of 12 staff selected for redundancy, only two were white British, while eight were from a BAME background, four were Muslim, and six were disabled. Campaigners also said that there were no visible minorities among the senior management team, after the only black director was selected for redundancy, and that all two of the remaining BAME workers were on the bottom three pay grades.

The EHRC denied claims that staff were sacked by email.[18]

In June 2020 it was reported that a commissioner at the EHRC, Pavita Cooper, had failed to declare her donations and fundraising activities for the Conservative Party. The EHRC made a statement saying "Pavita Cooper has not made a donation to any political party and is not a member of any party." The Electoral Commission's website lists Ms Cooper as making donations totalling £7,000 to the Conservative Party and a Conservative MP in 2013.[19]

Notable activities

British National Party

Following the election of two MEPs from the British National Party (BNP) in the 2009 European elections, a potential issue of public funding was raised by the commission as the BNP constitution states that recruitment is only open to members who are "indigenous Caucasian and defined ethnic groups emanating from that Race"[20] The Commission's legal director John Wadham has stated that "The legal advice we have received indicates that the British National party's constitution and membership criteria, employment practices and provision of services to constituents and the public may breach discrimination laws which all political parties are legally obliged to uphold"[21] This relates to the Race Relations Act 1976,[21] which outlaws the refusal or deliberate omission to offer employment on the basis of non-membership of an organisation.

The commission asked the BNP to provide written undertakings that there will not be discrimination in its recruitment procedures.[21] The BNP responded to the letter by stating that it "intends to clarify the word 'white' on its website".[22] However, because the commission believed the BNP would continue to discriminate against potential or actual members on racial grounds, on 24 August 2009 the commission announced that they had issued county court proceedings against it.[22][23] In a statement, the commission reduced the grounds on which it was taking action against the BNP, stating "The Commission believes the BNP's constitution and membership criteria are discriminatory and, further, that the continued publication of them on the BNP website is unlawful. It has therefore issued county court proceedings against party leader Nick Griffin and two other officials. The Commission has decided not to take action on two further grounds set out in its letter before action, in the light of the BNP's commitment to comply with the law."[22]

Campaigns

These include:

2010 - Care and Support A report[24] produced by the Commission highlighted the need to shift from a "safety net" approach to care to a "springboard". The report suggested ways that individuals could be given greater autonomy over their lives and encouraged to engage in society and make social and economic contributions.

2016 - Working Better The Working Better Initiative was launched with a remit of coming up with innovative ways to meet the needs of modern workforce, with a particular focus on flexibility and family life. The Home Front survey[25] formed part of the initial consultation process.

2018 - Good Relations The Commission aims to provide research and resources and advice to Local Authorities and to enable greater understanding between communities.

Metropolitan Police Service

In September 2016, the EHRC published a report on discrimination within the Metropolitan Police Service. The investigation was launched in response to concerns about the MPS's treatment of Black and minority ethnic (BME), female and gay officers and focused on the MPS's grievance and misconduct procedures.[26]

Inequality

A 2018 EHRC report, co-authored by Jonathan Portes and Howard Reed, found government policies disproportionately harmed the poorest in UK society. Public service and benefits cuts disproportionately affect those with least, single parents and disabled people. This puts the government in breach of its human rights obligations. The study considers the extent of the cuts and their disproportionate effect on the most disadvantaged were a policy choice, and not inevitable.

The study investigates spending on the NHS, social care, police, transport, housing and education from 2010 to 2015 on different groups in England, Scotland and Wales. It also attempts to predict the effect of spending plans for these services to 2021-22, and alterations to taxes and benefits. Reductions per person since 2010 were notably higher in England, (roughly 18%) than in Wales (5.5%) and Scotland (1%), partly because devolved governments chose to reduce some effects of the cuts. The 20% of people in England with lowest income lost on average 11% of their incomes due to austerity contrasted with no losses for the wealthiest fifth of households. Lone-parent households lost most from tax and spending alterations, on average. In England, they lost 19% of their income, contrasted with 10.5% in Wales and 7.6% in Scotland. Large families lost more than smaller ones. Families with three or more children lost on average 13% of final income, contrasted with between 7% and 8% in Scotland and Wales. Households with disabled members, households with an average adult age of 18-24, and black households lost disproportionately from austerity cuts.

Making vulnerable groups suffer austerity cuts disproportionately goes against non-discrimination principles which the UK has agreed to under international human rights law. Ministers are asked by the authors to reduce the impact of austerity cuts through raising means-tested benefits, tax credits and universal credit, and increasing spending on health, social care, education and social housing.

Rebecca Hilsenrath of the EHRC said, "We know that some communities are being left behind and that the gap is widening. We know we need to do something before it’s too late and we’ve shown that it’s possible to assess public spending decisions to see if we can make the impact fairer."[27]

Labour Party

In September 2017, EHRC Chief Executive, Rebecca Hilsenrath, demanded a zero tolerance approach to antisemitism in the Labour Party and swift action by the leadership to deal with it.[28]

In May 2019, in response to submissions by the Jewish Labour Movement and the Campaign Against Antisemitism (CAA), the EHRC launched a formal investigation into whether Labour had "unlawfully discriminated against, harassed or victimised people because they are Jewish": specifically, whether "unlawful acts have been committed by the party and/or its employees and/or its agents, and; whether the party has responded to complaints of unlawful acts in a lawful, efficient and effective manner."[29] The CAA is represented for the purposes of the investigation by Adam Wagner, a member of the EHRC's panel of counsel.[30][31] In March 2019, Antony Lerman, former founding director of the Institute for Jewish Policy Research, raised concerns that Hilsenrath's September 2017 statement made her unsuitable to lead a probe into Labour, writing in OpenDemocracy: "Prior to investigation, is it not worrying that the CEO already claims to know what the Labour Party needs to do?" Hilsenrath later recused herself from the decision to investigate the Labour Party as her status as “an active member of the Anglo-Jewish community" could cause a perception of bias.[32]

The Shadow Chancellor, John McDonnell, looked forward to the investigation's conclusions stating: "I want it quicker actually, I need it speeded up. Let's learn the lessons and then also work with the organisation to implement what recommendations they bring forward. On that basis I'm hoping we'll get a clean bill of health but, more importantly, we can become much more effective at tackling not just antisemitism but racism, both in our party and society overall."[33] Jewish Voice for Labour also welcomed the investigation but argued that, without making public the complaints the EHRC received and Labour's initial response, the EHRC have violated the Equality Act 2006 which requires that they specify who is being investigated and "the nature of the unlawful act" they are suspected of committing, as required by its own terms of reference. Signatories to JVL's letter includes human rights lawyer Sir Geoffrey Bindman QC and University of Oxford professor Avi Shlaim.[34][35]

A June 2020 report in Newsweek contrasted the EHRC's investigation into anti-semitism in Labour with its decision not to investigate allegations of Islamophobia which were made from within the Conservative Party because "it would not be proportionate to initiate our own investigation".[19]

Notes
  1. https://www.equalityhumanrights.com/en/contact-us/our-offices
  2. "Our Commissioners, Committees and Governance | Equality and Human Rights Commission". www.equalityhumanrights.com. Retrieved 22 August 2016.
  3. "Fairness for All" (PDF). Government of the United Kingdom. Archived from the original (PDF) on 20 March 2007.
  4. see, for instance, Michael Rubenstein Equality, the private sector and the Discrimination Law Review: A preliminary report Archived 26 July 2011 at the Wayback Machine at [29]
  5. see s.7(1)(b) HRA 1998; usually you can only bring a Human Rights claim if you are actually the person whose rights are violated. You cannot do it on someone else's behalf.
  6. s. 73 of the Sex Discrimination Act 1975
  7. Colm O'Cinneide, "The Commission for Equality and Human Rights: A New Institution for New and Uncertain Times” (2007) Industrial Law Journal 141, 157
  8. "The Commissioners". EHRC. Retrieved 22 August 2016.
  9. "Our Commissioners, Committees and Governance". The Equality and Human Rights Commission.
  10. "Equal opportunity knocks". Jewish Chronicle. 12 May 2016. Archived from the original on 28 May 2019. Retrieved 13 July 2019.
  11. Asthana, Anushka (1 April 2016). "Nicky Morgan under fire for choosing City lawyer to head equality body". The Guardian. Retrieved 13 July 2019.
  12. sawer, Patrick (19 March 2016). "New equalities head would be biased against Christians, claim campaigners". The Telegraph. Archived from the original on 28 May 2019. Retrieved 13 July 2019.
  13. Miller, Phil (13 September 2019). "New conflict of interest row at EHRC as second board member joins law firm taking government work". Morning Star. Retrieved 13 September 2019.
  14. "About our commissioners". EHRC. Retrieved 13 July 2019.
  15. Rocker, Simon (16 August 2016). "The woman with the 'best job in the world'". Jewish Chronicle. Retrieved 13 July 2019.
  16. "Why equality is about all of us: Championing women and other minority groups in work and life – Rebecca Hilsenrath, Chief Executive of the Equality and Human Rights Commission". Womanthology. Retrieved 13 July 2019.
  17. "Contact us". www.equalityhumanrights.com. Equality and Human Rights Commission. 5 January 2018. Retrieved 16 February 2018.
  18. Syal, Rajeev (5 March 2017). "Equalities body accused of targeting BAME staff for redundancies". The Guardian. Retrieved 13 July 2019.
  19. Mahmood, Basit (25 June 2020). "Equalities and Human Rights Commissioner Failed to Declare Tory fundraising". Newsweek. Retrieved 27 June 2020.
  20. "British National Party Constitution (9th edition) SECTION 2: MEMBERSHIP point 1" (PDF). bnp.org.uk. Archived from the original (PDF) on 11 June 2009.
  21. Hirsch, Afua; Taylor, Matthew (23 June 2009). "BNP faces legal threat over membership policies". The Guardian.
  22. "Archived copy". Archived from the original on 25 August 2009. Retrieved 24 August 2009.CS1 maint: archived copy as title (link)
  23. "UK – Legal action over BNP membership". BBC.
  24. "Care and Support". equalityhumanrights.com. Archived from the original on 2 September 2010.
  25. "Product reviews, parenting tips and advice for parents". mumsnet.com.
  26. "Metropolitan Police Service". EHRC. Retrieved 13 July 2019.
  27. Butler, Patrick (28 November 2018). "Spending cuts breach UK's human rights obligations, says report". The Guardian. Retrieved 28 November 2018.
  28. Casalicchio, Emilio (26 September 2017). "Human Rights Commission chief: Labour must prove it is not racist party after anti-Semitism row". Politics Home. Retrieved 13 July 2019.
  29. "Equality watchdog launches Labour anti-Semitism probe". BBC News. 28 May 2019. Retrieved 13 July 2019.
  30. "EHRC launches formal investigation into Labour antisemitism". Jewish Chronicle. 28 May 2019. Retrieved 13 July 2019.
  31. "Panel of counsel". Jewish Chronicle. Retrieved 13 July 2019.
  32. Miller, Phil (16 July 2019). "Exclusive: Fears over conflicts of interest at top of watchdog probing Labour anti-semitism". Morning Star. Retrieved 16 July 2019.
  33. Walker, Peter (21 July 2019). "Labour launches webpage in effort to drive out antisemitism". The Guardian. Retrieved 23 July 2019.
  34. "Watchdog investigating Labour antisemitism is breaking its own rules, says Jewish group". Middle East Eye. 2 August 2019. Retrieved 2 August 2019.
  35. SW (3 August 2019). "EHRC AVOIDS RESPONSE TO QC'S SUBMISSION THAT LABOUR INVESTIGATION BREACHES EQUALITY ACT". Skwawkbox. Retrieved 4 August 2019.
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