Stakeholder Position: Equal Opportunities Commission

Summary

 

• The EOC strongly welcomes the Equality Bill, which will establish a new Commission for Equality and Human Rights (CEHR).
• The Equality Bill includes a duty on public bodies to promote gender equality. This is an essential part of the future legislative framework and is the biggest change in sex equality law for 30 years. A race duty already exists in the Race Relations Amendment Act and a disability duty is included in the Disability Discrimination Act, recently passed by parliament.
• We also welcome the inclusion of measures in the bill which will outlaw discrimination in goods, facilities and services on grounds of religion or belief. But we regret that the bill does not include provision to extend goods, facilities and services protection on grounds of sexual orientation or age nor to transgendered people. We urge the Government to address the patchwork of equality law provision very soon after the conclusion of its equality and equality law reviews, due for completion in summer 2006[1] and introduce a Single Equality Act as soon as possible after the conclusion of that review.

 

Where the EOC has concerns:

 

• We would like to see the elimination of harassment included in the gender duty. At present the gender duty is drafted without explicit reference to harassment, which is inconsistent with the disability duty.
• We would like the Government to confirm that the gender duty will require public sector bodies to address the causes of the gender pay gap, including unlawful pay discrimination. We are also seeking clarification on the extent and degree to which the gender duty will allow public bodies to include taking action to close the pay gap as a condition of a contract with a private sector contractor.
• We would like to see transsexual and transgendered people explicitly covered by the gender duty. At present this is not the case as the wording refers simply to “women and men”.
• We are concerned that Section 73 of the Sex Discrimination Act (SDA) has no equivalent power in the bill. This power allows the EOC to tackle persistent discrimination. We urge the Government to amend the bill to address this gap in provision, in accordance with ministerial assurances that the powers of the existing commissions will not be diminished in the new body.
• We support the Equality Review and the Discrimination Law Review, and intend to work constructively with the Government to achieve a radical re-think on equality and a fundamental review of equality law. However, we are concerned that this process should be co-ordinated with the establishment of the new Commission so that they can be mutually beneficial.
• We believe that a budget of £70 million currently allocated to the new Commission is insufficient for it to meet all the demands that will be placed upon it, given its additional remit over three new equality strands (age, sexual orientation and religion and belief) as well as its human rights role, and may jeopardize its ability to meet it statutory duties. This view is shared by the vast majority of the other equality organizations.

 

Where the EOC, CRE and DRC have common concerns:

• Advice and assistance - we want to ensure that the current remit and activities of the existing commissions in relation to casework, advice and assistance will not be restricted and will continue in the same way as it does now.
• Legislation - We want to extend the "equality enactments" to include non-transposed EU legislation and relevant parts of domestic employment legislation.
• Independence - We believe that the actual and perceived independence of the CEHR is of fundamental importance. The references to "comply with a direction from the Secretary of State" throughout the bill are not consistent with this desire for independence and go beyond provisions in the Sex Discrimination Act and the Race Relations Act for example.
• Transition arrangements and TUPE - The existing commissions have to fulfil their existing statutory obligations until the point at which they are dissolved. Any ongoing uncertainty in the run up to the CEHR will begin to undermine our ability to do so. It would be helpful if transition arrangements and the extent to which TUPE will apply could be clarified asap.
• Communities and language – the equality bill's overall vision is to be welcomed but the language used in certain parts of the bill, particularly the use of the term "sub-class" is regrettable and detracts from the positive sentiments in the rest of the legislation.

 

Part I – The Commission for Equality and Human Rights

 

Fundamental duty & Vision

 

The EOC shares the Government's view that equality is not a minority pursuit. A successful society is one in which we all have a stake. The CEHR will have a role in delivering this but it cannot do so alone. Rather, it will have to work in partnership with government, employers, trade unions and be accessible to and respond to the needs of the wider public. The EOC's vision for the single Commission, set out in our response to the Government white paper Fairness for all  [2]is that it should be:

 

• grounded in an equality and human rights philosophy that celebrates Britain's diversity backed up by a consistent legal framework
• able to fulfil a full range of roles
• organised and resourced to work effectively in Scotland and Wales as well as in England and GB wide
• able to deal effectively with each of the equality strands, with human rights and multiple discrimination issues, without creating a hierarchy
• inclusive in its governance approach and have the support of key stakeholders
• properly resourced

 

It is our view that the Commission which would be established under this bill would have the potential to live up to this vision, but certain key areas as we have outlined above still need to be addressed.

 

The bill confirms that the new Commission will operate in three main areas of activity:

 

• Equality and diversity
• Human rights
• Good relations

 

Clause 3 sets out the vision for the new body. The EOC endorses this vision, which is to create a society in which:

• People’s ability to achieve their potential is not limited by prejudice or discrimination
• There is respect for and protection of each individual’s human rights
• There is respect for the dignity and worth of each individual
• Each individual has an equal opportunity to participate in society
• There is mutual respect between communities, based on understanding and valuing diversity and based on a shared respect for equality and human rights.

 

Duties - Equality

Clause 8 sets out duties in relation to equality, which again the EOC welcomes. The Commission will have a duty to:

• Promote understanding of the importance of equality and diversity
• Encourage good practice
• Promote equality of opportunity
• Promote awareness and understanding of rights under equality law
• Enforce equality law
• Work towards the elimination of unlawful discrimination and unlawful harassment

 

Duties - Human Rights

The Commission will have a duty to:

• promote the understanding of the importance of human rights
• And a duty to encourage good practice in relation to human rights
• promote awareness, understanding and protection of human rights
• encourage public authorities to comply with the Human Rights Act
  
  
•  The bill also begins to address how the CEHR and the Scottish Human Rights Commission will divide between them responsibility for human rights in Scotland, in accordance with the way in which powers are currently devolved to the Scottish Parliament and Executive. But it is still not clear how this will work in practice. Human rights is neither devolved nor reserved so issues will have to be considered on a case by case basis as they arise. There is a risk that some human rights issues may fall through the gaps between the two organisations.
  
  
•  It is possible for the CEHR to pursue cases under human rights law where the case is also brought under one of the equality enactments. However, in the event of the equality aspect of the case “falling away” the CEHR would then have to drop the case unless the Secretary of State gave permission for the CEHR’s continued involvement. It is the EOC’s view that it should be for the CEHR itself to determine whether it should continue with the case and this decision should not require a referral to the Secretary of State.

 

Duties – Communities

The EOC agrees that the promotion of the understanding of good relations is of fundamental importance to realizing a more equal, fair and just society. The CEHR will have a duty to:

• Promote the understanding of good relations between different communities and also between communities and others and

 

• Encourage good practice in relations between different communities and between communities and others

 

• Work towards the elimination of prejudice against communities
• Work towards the elimination of involuntary isolation of communities

 

Community is defined in terms of age, gender, gender reassignment, race, religion or belief or sexual orientation. Disability is covered separately with an additional duty on the CEHR to promote the understanding of the importance of fair treatment for disabled persons. It is the EOC's view that the use of the wording "sub-class" in clause 11 is regrettable and should be changed.

 

The EOC has consistently pressed for a broad definition of transgender. The definition used in this bill is, “proposed, commenced or completed reassignment of gender” which is the definition consistent with the SDA and is currently narrower than that used in the Gender Recognition Act. However, arguably, it is generally understood that this still restricts the definition to those who have begun a medical process of gender reassignment, so excluding those who would define themselves as transgendered but who may not have entered into any medical process. It is the EOC's view that a broader definition of transgender would be preferable and we will be arguing for that during the passage of the bill.

 

The EOC acknowledges that the CEHR will be required to have “particular regard” to race, religion or belief when exercising the powers relating to its community functions. But we welcome the fact that the bill is worded to allow the CEHR to use its discretion to address issues arising in other communities (eg. homophobic bullying or domestic violence).

 

Monitoring the law

The CEHR is expected to:

• Monitor the effectiveness of equality and human rights law and advise government accordingly
• Make recommendations to government about areas of equality and human rights law which should be repealed or amended
• Advise government about the effect of a given law or a proposed change in the law.

 

We accept that monitoring the law should be a key part of the CEHR’s role but the wording in the bill suggests that the CEHR should be expected to “comply with a direction from the Secretary of State” to advise about effects of the law or a proposed change in the law. It is our view that this is worded too strongly and does not allow the CEHR any room for manoeuvre to make a decision about what is possible or reasonable within its given priorities.

 

It is also for government to meet its obligations under equality legislation and not to use this provision to in effect partly delegate responsibility for that to the CEHR.

 

There are a number of occasions throughout the bill where the CEHR would be expected to comply with a direction of the Secretary of State. This goes beyond the powers given to the Secretary of State in the SDA for example. In our view this raises the bigger question of the independence of the new body and we question the need for that degree of direct government intervention.

 

Progress towards a more equal society

The EOC strongly welcomes the lead that the Commission will be able to give in terms of setting out its vision for a more equal society and an agenda for change.

• The Commission will be expected to set out its vision for society, identifying desirable outcomes and indicators that will enable the CEHR to monitor progress along the way. It will do this in the form of a report published every three years. This will be a report on the state of equality in Britain, not an annual report of the body itself (although the Commission will also have to produce a standard annual report).

 

• This outcome-focused approach chimes with the approach that has been adopted for the gender public sector duty. The EOC would expect that the high level outcomes in relation to gender which would be identified by the CEHR would in turn help to inform public bodies which would be considering them alongside their own local priorities, as they decide their goals for action under the gender duty.

 

Budget

• Schedule 1 of the bill confirms an annual budget of £70million plus start-up costs, which is considerably less than the EOC and others have been pressing for. We believe that a budget of £70 million currently allocated to the new Commission is insufficient for it to meet all the demands that will be placed upon it and may jeopardize its ability to meet it statutory duties. This view is shared by the vast majority of other equality organisations.
  
  We have jointly examined in detail what we anticipate the running costs to be in the first year and concluded that a budget of £120 million would be closer to what is required. The existing commissions currently receive a combined total of approximately £50m. Even with anticipated efficiency savings, an allocation of £70m as proposed suggests that the remaining £20m or so would be sufficient to meet the needs of three additional strands of equality, the CEHR’s human rights remit, expanded operations in Scotland and Wales and the English regions, and importantly the requirements of the community functions of the new Commission. It is our view that £70m is clearly an inadequate sum. As a result the CEHR could be undermined before its work has even begun.

 

 

• CEHR funding & funding of Committees. There is the potential for a dispute to arise within the CEHR itself in the event of inadequate resources being allocated by the Secretary of State to the Commission. If a Committee were to conclude that the resources made available to it undermined its ability to exercise its statutory functions, and this were to remain unresolved, this could ultimately leave the way open for external organisations or individuals to seek a judicial review. There is no mechanism within the bill to resolve the problem. Additionally, there is a clear risk that this could distort the funding and strategic priorities of the CEHR. It is the EOC's view that the funding for any individual committees has to be dependent upon the overall funding of the CEHR has a whole. It would be helpful if this could be clarified by the minister at 2nd Reading stage.

 

What opportunity will there be to review the budget of the single Commission? Is the Government prepared to look again at the funding of the new body?

 

Existing Commissions

• The bill dissolves the existing EOC, CRE and DRC – but not until the new body is up and running and this is scheduled for 2007. The existing Commissions have until 2009 to join and would not be dissolved until the point at which they joined the new body. It is the EOC’s view that it is in the best interests of gender equality and in the best interests of EOC staff for them to have the opportunity to be present in the new Commission from the start, shaping its agenda, making decisions about its budget and priorities and organising its structure.

 

• The Equality Bill provides for a Transitional Commission but still leaves unspecified most of the relevant transitional arrangements, although it has been confirmed by ministers that the Transfer of Undertakings Protection of Employment (TUPE) regulations will apply. The lack of detail on transitional arrangements in the body of this bill is to be expected, but resolving transitional issues is now a matter of considerable urgency if we are to reassure, retain and continue to recruit staff. The existing commissions have to fulfil their existing statutory obligations until the point at which they are dissolved. The continuing uncertainty will begin to undermine our ability to do so.

 

Powers

 

The EOC welcomes the range of powers that will be given to the new Commission. This will give the body greater bite and also greater flexibility than the EOC currently has. The EOC’s existing powers are transferred to the new Commission, with the exception of an existing power under section 73 of the SDA. There are also several additional powers.

 

Existing EOC power not transferred

 

• Section 73 of the SDA allows the EOC to tackle persistent discrimination by employers in a proactive, focussed and strategic way. Where there is sufficient evidence, but where individuals are unwilling or unable to pursue their complaint, the EOC can take the case to an employment tribunal and obtain a ruling which can be relied upon in injunction or interdict proceedings to prevent persistent discrimination. It is also particularly useful where individuals settle a case out of court. This is of growing significance as an increasing number of cases are being concluded in this way. If an employer repeatedly discriminates but also repeatedly settles out of court Section 73 allows the EOC to pursue them anyway.

 

Ministers have given assurances that there will be no reduction in the powers of the existing commissions. But section 73 of the SDA is not replicated in the equality bill. We would like this to be addressed as a matter of urgency.

 

CEHR Powers

 

• Provide information and advice, carry out research, and provide education or training.

 

• Issue codes of practice in relation to equality law or "in connection with a matter addressed by" equality law. This is welcome as it gives the Commission the flexibility to issue codes of practice on related matters, such as the provision of flexible working for example which is covered by employment law but has sex equality implications.

 

• Take individual cases on a strategic basis. But this power is restricted to equality law. It is the EOC’s view that the CEHR should be free to bring strategic legal cases under relevant employment and non-transposed EU law, not just equality law.

 

• Assessments – the Commission can assess the extent to which a public body has complied with the race, disability and gender duties to eliminate discrimination and promote equality.

 

• Compliance notice – where a public body has failed to meet the requirements of the duty the Commission can issue a compliance notice, giving them 28 days to comply. If no action is taken in this time the Commission can then apply to a county or (in Scotland) a sheriff court to enforce the notice.

 

• Investigations – the Commission can investigate whether a person/organisation has committed an unlawful act. This is similar to the EOC’s existing Belief Formal Investigation powers.

 

• Unlawful act notice– if an individual/organisation is found to be breaking the law the commission can issue an unlawful act notice recommend action to be taken. The organisation is then required to draw up an action plan to address the cause of discrimination

 

• Agreements – the Commission can also draft up an agreement with an individual/organisation that would address the discrimination and if required the Commission can then apply for an injunction to ensure compliance with the agreement or to prevent discrimination.

 

• Conciliation – is a form of alternative dispute resolution and intended as an alternative to legal proceedings. It is unclear from the wording of clause 29 (1) and 29 (3) the extent to which the CEHR would be expected to provide a conciliation service or whether it would be for the CEHR itself to decide, in accordance with its own priorities, whether it was either appropriate or necessary for the CEHR to provide a conciliation service. If a conciliation service were offered it would only apply to cases relating to goods, facilities and services. It would be helpful if the Government would provide clarification of the extent to which the CEHR would be free to decide whether to provide a conciliation service.

 

• Inquiries – similar to the EOC's existing General Formal Investigation powers. This has been an important tool for the EOC, particularly in recent years with three major investigations in to pregnancy discrimination, occupational segregation and part-time and flexible working. All three investigations have brought forward recommendations, a number of which have already been adopted by government.[3]

 

Extending equality law

 

Part II – Religion and Belief

• Part II extends protection against discrimination on grounds of religion or belief to goods, facilities and services, which in principle is a very welcome development. This part also includes outlawing harassment on grounds of religion or belief.

 

• The bill also prohibits discrimination or harassment on grounds of religion or belief in the exercise of the functions of public bodies.

 

• The EOC strongly welcomes in principle extending protection on these grounds. However we are considering the Sex Discrimination Act implications of Part II and may want to return to these provisions at a later stage during the passage of the bill.

 

Part III – Gender Duty

 

• The equality bill places a general duty on public bodies to have “due regard to the need to eliminate unlawful discrimination and to promote equality between women and men”.

 

• In 1999 the Government promised to introduce a gender duty. We are delighted that they are now acting on that long-standing commitment. In the 30th anniversary year of the Sex Discrimination Act, this is the most radical change in sex equality law for thirty years.

 

• The duty will shift responsibility for gender equality from individuals to public authorities. These organisations will have to ensure that their policies and procedures do not discriminate and to take active steps to promote gender equality. Promoting sex equality will enable service providers to deliver services which are better able to meet the different needs of men an women. This will mean that resources are better targeted and so will be more efficiently and effectively used. Some service providers are already doing it. But with the duty these isolated examples of good practice can then become common practice.

 

• The duty will also require public sector employers to take steps to improve their employment practices, for example addressing the pay gap and providing flexibility in the workplace.

 

• The EOC is concerned however that the definition of public authority in this bill differs slightly from that in the Disability Discrimination Bill and the Human Rights Act, and that judges are likely to read significance into that difference. We would like the Government to amend the definition in this bill to bring it into line with the definition in the Disability Discrimination Bill, or at least to clarify that they should be read as having the same meaning.

 

• Specific duties to reinforce the general duty will be drafted later in 2005 and introduced by regulation. Clause 82 of the bill includes an order-making power for the Secretary of State to place specific duties on public bodies. The EOC will be working closely with Government on the content of the specific duties.

 

• We would like to see the elimination of harassment included in the gender duty. At present the gender duty is drafted without explicit reference to harassment, which is inconsistent with the disability duty. We can see no reason to omit it from the gender duty and urge the government to amend the equality bill, as it did the Disability Discrimination Bill, and include the elimination of harassment in the duty. We also believe that the race duty in the Race Relations Amendment Act should be brought into line with the new duties and include explicit provision for the elimination of harassment.

 

• We understand that the Government's view is that harassment will be covered by the implementation of the Equal Treatment Amendment Directive (ETAD) later this year. However there is some uncertainty about the extent to which this would fully address it. Additionally the Directive would not go so far as to place a positive duty on public bodies to eliminate harassment. It would be very helpful to clarify the Government's intentions at this stage.

 

• We would like the Government to confirm that the gender duty will require public sector bodies to address the causes of the pay gap, ie. unlawful pay discrimination, the unequal impact of caring responsibilities and women concentrated in low paid occupations. We are also seeking clarification on the extent and degree to which the gender duty will allow public bodies to include taking action to close the pay gap as a condition of a contract with a private sector contractor. The definition of public body included in the bill covers any person who has functions of a public nature. This would include, for example, a private security firm contracted to provide a public function. But the duty only extends to the public functions of private companies, not to the companies themselves. We want to explore the meaning of this during the passage of the bill.

 

• We would like to see transsexuals and transgendered people explicitly covered by the gender duty. At present this is not the case as the duty refers only to “women and men”. Additionally, the duty to eliminate unlawful discrimination only covers transgender people in relation to employment, not the provision of goods facilities and services. These are gaps in the law which needs to be addressed. If government is not going to address these issues within the Equality Bill it would be helpful if government would confirm that the Discrimination Law Review will do so.

 

• The bill also eliminates the problem of the ‘Amin ruling’, which limited the application of the SDA when public authorities were carrying out public functions. The EOC has lobbied for this for many years and very much welcomes this change which will bring the SDA in line with the Race Relations Amendment Act and the Disability Discrimination Act.

 

Enforcement of the duty

 

We are pleased that the bill provides for the gender duty to be enforced. The CEHR will have the power to:

 

• Carry out assessments – the Commission will be able to assess the extent to which a public body has complied with the race, disability and gender duties to eliminate discrimination and promote equality.

 

• Issue a compliance notice – where a public body has failed to meet the requirements of the duty the Commission can issue a compliance notice, giving them 28 days to comply. If no action is taken in this time the Commission can then apply to a county or (in Scotland) a sheriff court to enforce the notice.

 

Devolution

It is the EOC's view that the new Commission must have a strong devolved structure, which is fully able to respond and engage with institutions and issues in Wales and Scotland. We largely welcome the arrangements proposed in this bill for Scotland and Wales, particularly the devolved decision making and budgetary structure. However we remain concerned about the lack of clarity over how any disputes about budget allocations could be resolved. It would be sensible for this to be clarified at 2nd reading stage. Current wording leaves it to the CEHR and to the individual statutory committees to dispute what is or is not an amount sufficient for a committee to carry out its functions.

 

Wales

CEHR

• The CEHR in Wales will have greater autonomy than the Commissions currently enjoy and an ability to set priorities that meet the devolved context in Wales.
• The CEHR in Wales will have an explicit power to advise the Welsh Assembly Government on secondary legislation.

 

• A Wales Committee will be established as part of the CEHR structure. Its powers will be defined in legislation and will include: working with the Welsh Assembly Government and the National Assembly as they take forward their duties under the Government of Wales Act; promotional work; provision of advice and information.

 

• The Committee will have the power to advise the Commission about the exercise of its functions in so far as they affect Wales and the Commission will be required to consult the Wales Committee before exercising its functions in a way that will affect Wales.

 

• The Wales Committee will also have a role in advising central Government on existing law or proposed changes to the law that affect Wales.

 

• The Wales Committee will be appointed in consultation with the Welsh Assembly.

 

Gender Duty

• The Secretary of State must consult the National Assembly for Wales before imposing specific duties on any individual or organisation carrying out public functions in relation to Wales.

 

• The Secretary of State must obtain the National Assembly for Wales' consent before imposing duties on a public body all of whose functions are public functions in relation to Wales.

 

• Power of assessment – the CEHR will have the power to assess the extent to which a public body has complied with the race, disability and gender duties to eliminate discrimination and promote equality. However, in Wales the Assembly and key parts of the public sector are also under duties to promote equality more broadly.
  
  These duties arise from the Government of Wales Act and the Welsh Language Act. It is unclear at this stage whether it is sensible for public bodies to be subject to a separate set of assessments, one from the CEHR itself (in relation to race, disability and gender), one from a Welsh Language Regulatory Authority that is likely to be established (replacing the Welsh Language Board when it is assimilated in to the Assembly) in 2006, and one in relation to the broader duties under the Government of Wales Act.
  
  It is the EOC’s view that the CEHR should operate appropriately in a devolved context. It may be the case that it would be sensible for the CEHR in Wales to be given the authority to assess more widely across all strands, but currently the assessment powers in this bill relate only to the race, gender and disability duties on public bodies to promote equality. It would be sensible for Government to give further thought to how in practice this will operate in Wales.

 

Scotland

 

The position in Scotland is more complex because of the different nature of the devolved settlement and the primary legislative powers devolved to the Scottish Parliament on a wide range of issues.

 

Furthermore the intention to establish a Scottish Human Rights Commission provides added complexity. Further clarification will be needed on how the Scottish HRC's functions will be separate from and also co-ordinated with the CEHR.

 

The bill does begin to address this and does so in accordance with the way in which powers are currently devolved to the Scottish Parliament and Executive. But it is still not clear how this will work in practice. Human rights is neither devolved nor reserved so issues will have to be considered on a case by case basis as they arise.

 

CEHR

 

A Scotland Committee will be established as part of the CEHR structure.

 

Its role will be to advise the Commission about the exercise of its functions in so far as they affect Scotland.

 

The Commission will have to consult the Scotland Committee before exercising its functions in a way that will affect Scotland.

 

Provision of information and advice is delegated to the Scotland Committee

 

The Scotland Committee will have a role in advising the Scottish Executive on existing law or proposed changes to law that are within the remit of the Scottish Parliament

 

The Scotland Committee will have a role in advising central government on existing law or proposed changes to the law that affect Scotland

 

Gender Duty

 

• Provision is made within the bill for the Secretary of State to impose specific duties on a public body operating in Scotland where it is a cross-border authority and to the extent that the cross-border authority's functions are not Scottish functions.

 

• Further provision is made to allow Scottish Ministers to impose specific duties by order where they apply only to Scottish bodies or cross-border public authorities that are carrying out Scottish functions.

 

• In each case the Commission should be consulted first
• The Secretary of State and Scottish Ministers should each consult each other before making an order.