Equality and Human Rights Commission

The Equality and Human Rights Commission (EHRC) is a non-departmental public body in Great Britain which was established by the Equality Act 2006 and came into being on 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 three former commissions: the Commission for Racial Equality, the Equal Opportunities Commission (which dealt with gender equality) and the Disability Rights Commission. It also has responsibility for other aspects of equality: age, sexual orientation and religion or belief. As a national human rights institution, it seeks to promote and protect human rights in Great Britain (with the exception of matters falling within the remit of the Scottish Human Rights Commission, SHRC).

The EHRC has offices in Manchester, London, Glasgow and Cardiff. It is classed as a non-departmental public body sponsored by the Government Equalities Office, meaning that it is separate and independent from Government but still accountable for its public funds. The chairman of the Commission is Trevor Phillips who was previously chairman of the Commission for Racial Equality.

The EHRC's functions do not extend to Northern Ireland where there is a separate Equality Commission (ECNI) and a Human Rights Commission (NIHRC), both established under the terms of the Belfast 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.^[1] 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. They 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 hold enforce equality standards in your favour. This may seem somewhat odd, considering that public sector employers are consistently shown to have excellent workplace practices.^[2] 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.^[3]

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.^[4]

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).^[5] 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.

Campaigns

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^[6] formed part of the initial consultation process.

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

Care and Support A report^[7] 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.

Litigation against the British National Party

Following the election of 2 MEPs from the British National Party (BNP), 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"^[8] 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"^[9]

This relates to the Race Relations Act 1976,^[9] which outlaws the refusal or deliberate omission to offer employment on the basis of non-membership of an organisation. However the Race Relations Act sections 25 and 26 allow for exclusively ethnic organisations with a membership of fifty or more.^{[citation needed]} The commission sent a letter to the BNP giving them until 20 July to provide written undertakings that there will not be discrimination in its recruitment procedures.^[9] The BNP responded to the letter by stating that it "intends to clarify the word 'white' on its website".^[10] However, because the commission believes the BNP will 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 the BNP.^[10][11] 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."^[10]

Commissioners

The Commission is made up of 15 commissioners with backgrounds in various fields of equality and human rights. As of May 2010 they are:

Trevor Phillips OBE (chair) Baroness Prosser OBE (deputy chair) Stephen Alambritis Ann Beynon OBE Kay Carberry CBE Baroness Greengross OBE Meral Hussein Ece OBE

Dr Jean Irvine OBE Kaliani Lyle Angela Mason Baroness Sherlock OBE Michael Smith Simon Woolley Professor Geraldine Van Bueren

Some of the first set of Commissioners resigned towards the end of their first term, while others did not seek a second term. The Commissioners included Morag Alexander, Kay Allen, Baroness Jane Campbell of Surbiton, Jeannie Drake CBE, Joel Edwards, 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.

Offices

The EHRC has four offices: in London (at More London, on the River Thames Bankside), in Manchester (in the Arndale Centre), in Cardiff (in Callaghan Square), and in Glasgow.^[12]

Notes

1. ^ Fairness for All from the government's Women and Equality Unit website
2. ^ see, for instance, Michael Rubenstein Equality, the private sector and the Discrimination Law Review: A preliminary report at [29]
3. ^ 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.
4. ^ s. 73 of the Sex Discrimination Act 1975
5. ^ Colm O’Cinneide, “The Commission for Equality and Human Rights: A New Institution for New and Uncertain Times” (2007) Industrial Law Journal 141, 157
6. ^ Home front survey on Mumsnet
7. ^ Care and Support report
8. ^ British National Party Constitution (9th edition) SECTION 2: MEMBERSHIP point 1)
9. ^ ^{a b c} http://www.guardian.co.uk/politics/2009/jun/23/bnp-membership-policies-legal-threat
10. ^ ^{a b c} http://www.equalityhumanrights.com/media-centre/commission-issues-county-court-proceedings-against-the-bnp/
11. ^ http://news.bbc.co.uk/1/hi/uk/8218397.stm
12. ^ Equality and Human Rights Commission website retrieved 19 January 2010

External links

• Equality and Human Rights Commission
• Northern Ireland Human Rights Commission
• Scottish Human Rights Commission