The Home Office recently published its response to the response to its consultation on reform of the Equality and Human Rights Commission. Here are 10 things people should note regarding the Government’s plans:
The government's plans fundamentally change the nature and purpose of the Commission.
By repealing section 3 of the Equality Act 2006 the Commission will cease to be agent of social change harnessing the law and its powers to address entrenched inequalities. Instead (insofar as its equality mandate is concerned) it will be a body largely limited to enforcing anti-discrimination law. As a consequence, where now the EHRC is empowered to determine measures of Britain's progress towards equality and human rights and the outcomes towards which it will focus its resources, in future government will do so. Yet the government dismisses section 3 as serving no legal purpose.
Separately, the government has announced it plans to review the Public
Sector Equality Duty. With the changes proposed to the Commission and with a
further weakened (or repealed) PSED, both the law and the role of the
Commission risk being returned to the failed model of compensation for
individual victims of past discrimination which existed before the Stephen
Lawrence Inquiry. This model not only failed to tackle the institutional
causes of discrimination and inequality which Lord McPherson identified as
having contributed to the bungled investigation into Stephen's murder, it
provided extremely poor value for money and seems at odds the government’s
stated aims of reducing red-tape and averting a ‘compensation culture’.
Business and public authorities will become self-regulating.
Government wants those close to duty-holders such as employers and service providers to produce guidance on the law because it says the Commission's responsibility to 'promote' equality prevents it from being impartial, neutral and pragmatic and therefore ill-suited to doing so. It does not clarify why it considers those close to duty-holders to be more neutral, impartial or capable of a pragmatism than the Commission. Unlike such organisations, the Commission is required by law to consult all stakeholders in relation to statutory guidance - this is to ensure neutrality, impartiality and proportionality. It is interesting then that the government appears to have blocked publication of statutory Codes of Practice relating to the Equality Act 2010 duties relating to education and to the public sector equality duty.
Despite saying in the document that the Commission is not and will not
be a regulator, the government still seems intent to subject the Commission to
the Hampton Principles for good regulation. This includes the principle that 'regulators
should provide authoritative, accessible advice easily and cheaply' something
the Commission will no longer be permitted to do, or in a position to in the
absence of a Helpline or grants-programme.
The Commission will have far less scope to engage in matters of social relations such as disability related harassment, homophobic bullying or racism.
Government says it will remove the Commission's duty and powers to promote 'good relations' between groups. It says that the Commission can do such work with its equality and human rights powers. Yet neither provides the means to engage in matters concerning 'horizontal' relations between people (such as through producing materials for citizenship education in schools) , only the 'vertical' responsibilities of duty-holders.
Further, government has announced its intention to review the PSED (see
2, above) which presently includes a duty on public authorities to promote good
relations. It is unclear what other tools the Commission could use to
address such issues effectively, especially as it will be no longer funded by
government to provide grants to civil society organisations (a function the government
says it has no plans to replace).
Accountability arrangements seriously undermine the Commission's independence.
In place of previously proposed legislative measures regarding accountability to government, the government has determined a 'framework agreement' which says that it has 'taken account of the ‘Paris Principles' (the agreed international standards regarding the mandate and independence of national human rights institutions). It is unclear how the Paris Principles have been taken account of given the document:
· Permits the Home Secretary to submit an 'open letter' to the EHRC each year setting out the government's key priorities and concerns and 'invites' the EHRC to respond demonstrating how it has done so (see below regarding the blurring of distinctions between value for money assessments and the imposition of government policy making it difficult to see how the Commission would reject demands from Ministers)
· Requires the EHRC to seek government approval for ALL expenditure on marketing and promotion (of particular concern in relation to human rights education)
· Requires EHRC to share all external communications with the Home Office 48 hours before publication
· Determines how it must (and must not) engage with Parliament
· Requires EHRC's Chief Executive to meet the Director of the Home Office equalities office fortnightly
· Requires EHRC to limit recruitment exercises to the civil service in the first instance
The extent of proposed involvement by the Home Office
in EHRC's work suggests that government is micro-managing EHRC
5. The plans allow government to impose its policies on the Commission under the guise of 'value for money' assessments.
The framework agreement is particularly worrying in the manner in which it facilitates the blurring of matters of 'value for money' and government policy, effectively allowing the Home Secretary to censure the Commission. Para 3.9 of the response says 'we remain concerned about the cost of some of the EHRC’s work, and the extent to which its activities are genuinely adding value by helping to support equality of opportunity and promote a better understanding of the true meaning of human rights' This language mirrors the Coalition agreement and the terms of reference of the Governments Bill of Rights Commission. Yet EHRC's statutory duties require it to promote the Human Rights Act and the various international human rights instruments (including promoting their ratification by the UK). Given this and the present Home Secretary's widely known views on the Human Rights Act, a clear threat to the Commission's independence is evident (not least resulting from the fact that the Home Office authorises EHRC spend on marketing and promotion - see above). Given this context and the powers of the Secretary of State, how can the public feel confident that the EHRC will feel able to raise human rights issues in relation to other areas of the Home Secretary's role such as policing and counter-terrorism which are frequently 'human rights flashpoints' or be an independent voice for the protection of human rights should government make proposals to water down domestic human rights law?
There is nothing in the framework agreement or
reform proposals - such as extra Parliamentary oversight - to provide
assurances of a ‘Chinese Wall' to protect the Commission's independence via
this sponsorship arrangement.
The government is able to use financial leverage to determine the Commission's plans and activities.
Government announced its intention to conduct a 'zero-based budget
The terms of reference for the review include assessing what functions
are necessary for the Commission to deliver and 'whether its functions are
being properly delivered by its planned activities' and include an assessment
of what functions are or might be carried out by Government Equalities
Office and other bodies.
Even before this review, the Commission will be reduced to a third of its original size - smaller than just one of the Commissions it replaced.
The Commission's budget will be reduced from £70
million in 2007 to £22 million in 2015 and its staff from 525 in 2007-8 to 150
by 2015, making the EHRC smaller than just one of the Commission's it replaced
(the Disability Rights Commission) despite having equalities responsibilities
spanning age, disability, gender, race, religion and belief, transgender,
sexual orientation in addition to its role as Britain’s national human rights
The Home Office equalities department is in direct competition for EHRC's resources and will be comparable in size.
The equalities office of the Home Office has
around 100 staff, many of who are involved in either monitoring or duplicating
work that falls within the Commission's mandate. The office shares a
budget allocation with the Commission and as such is in direct competition with
the Commission for a role and resources.
This would appear to be a situation wholly unsuited to the conditions
required to sponsor an independent human rights commission and equality body, especially
in the absence of independent oversight by a Parliamentary Committee.
The Commission will operate with the constant threat of reform or closure.
The Commission will be subject to a further review in 18 months time. The Home Office says that 'Should sufficient progress (my emphasis) not have been made, we will seek to implement more substantial reform to ensure that the EHRC’s core functions are discharged efficiently and effectively going forward. This could include some functions being done elsewhere, or splitting its responsibilities across new or existing bodies.'
In preparation, Para 21 of the framework agreement
sets out 'arrangements in the event that the EHRC is wound up'. The
response does not determine the exact 'progress' required, again blurring
boundaries between matters of propriety, value for money and government policy,
creating a threat which undermines independence whilst building a
non-transparent process to justify further reforms or closure.
Government plans have little grounding in official reports regarding the Commission
The government refers to the (justifiably) critical reports of the Joint Committee on Human Rights and the Public Accounts Committee, as well as the National Audit Office's decision to qualify EHRC's past accounts in making the case for reform. Yet many of the reforms proposed bear little in any relationship to the findings of these inquiries and reports and where they do amount to wholly disproportionate action. No external inquiry has called for reform of EHRC’s powers in relation to equality or good relations, and the Commission’s recent accounts were unqualified. The government neglects to recognise the impact of government decisions such as preventing the Commission from recruiting a permanent Chief Executive or senior management team for over two years, something likely to cause instability and problems with performance in most organisations.
The reforms are driven overwhelmingly by government spending decisions, its antipathy towards what it characterises as 'regulatory burdens' on business and the public sector and its ideological position on equality and human rights.
Whatever one's feelings about the past performance of the EHRC - of which I was part - these reforms will do nothing to improve its performance and nor do they appear intended to. Instead they are designed collectively to place severe constraints upon the Commission's independence and influence and one expects to pave the way for further reforms, or even abolition of the Commission in a couple of years’ time.