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The Equality and Human Rights Commission (EHRC) is a quango in Great Britain which was established by the Equality Act 2006. The chairman of the Commission is Trevor Phillips who was previously chairman of the Commission for Racial Equality. It has taken over the responsibilities of three former commissions: the Commission for Racial Equality, the Equal Opportunities Commission and the Disability Rights Commission. It also has responsibility for the other aspects of equality: age, sexual orientation and religion or belief, as well as human rights.

The Commission came into being on 1 October 2007. It only has responsibility for England, Scotland and Wales as a separate Equality Commission exists in Northern Ireland which was established under the terms of the Belfast Agreement and has offices in Manchester, London, Glasgow and Cardiff.. It is classed as a non-departmental public body, meaning that it is separate and independent from Government but still accountable for its public funds.

Contents

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 a 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.

Attitude Towards Transsexual People

The Commission recognises that in principle it has some responsibility towards reducing discrimination towards transsexual people. Also, the guidance published by one of its predecessor organisations, the Equal Opportunities Commission, urged public authorities to ensure that their gender equality policies cover transgender people as well as those who are transsexual. Furthermore, the Commission does recognise that transgender constitutes a seventh strand of diversity. However, when the Commission was established under Equality Act it was only required to eliminate discrimination on the grounds of age, disability, race, religion and belief, gender and sexual orientation. The Act does not require them to protect gender variant people and thus the Commission feels unable to take any practical steps to protect this grouping.

There is some limited policy activity. For instance in its recent Submission on the United Kingdom's report under the International Covenant on Civil and Political Rights[6] it pointed out some of the problems encountered by transsexual people in the operation of the Gender Recognition Act. Despite this ostensible position of support, the limitations of their remit meant that in the Commission's 2008/9 Interim Grant Program only one modest contribution was made available to a single organisation[7] in the desperately underfunded voluntary sector that supports these people. There is very little money available to support these voluntary bodies from within the community as many are forced out of well paid employment by discriminatory practices; yet the UK Government and the Commission does little to try and remedy the situation.

Furthermore when the Commission is asked to help in legal proceeding for discrimination against transsexual people the response is typically:

The EHRC receives a large number of requests for assistance under the Equality Act by people who have been subjected to acts of discrimination. The Commission gives careful consideration to these requests but it is unable to provide full representation to all of them. The Commission has finite resources and wants to maximise its impact by being strategic in its approach to exercising its powers under s 28 of the Equality Act. The Commission has, therefore, adopted an interim legal strategy which sets out the strategic priorities that governs how it will focus its limited resources in this area of its operations.

Melissa, Email from EHRC Helpline ref:1-3199177

In essence the attitude of the commission reflects that of Parliament when debating the Gender Recognition Act that the transsexual population is too small[8] to make it worth devoting resources to helping them or their families cope with discrimination in the workplace[9] in education[10] and under the law. In January 2009 the Commission finally accepted that they have a responsibility towards trans people

…the Commission does consider equality and discrimination issues on the grounds of trans status to be very much within our remit… we do consider trans/gender identity to be a unique strand… Our the standard line has now been amended to include gender identity specifically – so all seven strands should now be mentioned in descriptions of our work.

Clare Collier Senior Lawyer; Senior Lawyer -Legal Enforcement , Email 8th January, 2009

No indication of when this new policy will come in to effect has yet been given.

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[11]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[12] 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 far right 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"[13] The Commission's legal director John Wadhamstating 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"[14]

This relates to the Race Relations Act 1976,[14] 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. 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.[14] The BNP responded to the letter by stating that it "intends to clarify the word 'white' on its website".[15] 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.[15][16] 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."[15]

Commissioners

The Commission is made up of fifteen commissioners who are experts in various fields of equality and human rights:

See also

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. ^ [1] Submission on the United Kingdom's sixth periodic report under the International Covenant on Civil and Political Rights
  7. ^ EHRC awards for the 2008/2009 programme
  8. ^ GRP statistics Monthly update of the number of certificates and pending applications from the Gender Recognition Panel
  9. ^ Case studies of workplace discrimination
  10. ^ Transphobic bullying
  11. ^ Home front survey on Mumsnet
  12. ^ Care and Support report
  13. ^ British National Party Constitution (9th edition) SECTION 2: MEMBERSHIP point 1)
  14. ^ a b c http://www.guardian.co.uk/politics/2009/jun/23/bnp-membership-policies-legal-threat
  15. ^ a b c http://www.equalityhumanrights.com/media-centre/commission-issues-county-court-proceedings-against-the-bnp/
  16. ^ http://news.bbc.co.uk/1/hi/uk/8218397.stm

External links

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